In last Tuesday’s Opinion (Grand Chamber) following an article 218 (11) request by the Commission, the Court confirmed that the acceptance of the accession of an non-Union country to the 1980 The Hague Convention on child abduction fell within the EU’s exclusive competence. As a consequence, the decision to accept accession of a third state can only be taken after the Council has taken a decision on the matter, and Member States can no longer decide that third countries can accede and establish bilateral obligations on their own. The Court rejected the position taken by 19 out of 20 Member States who submitted observations to the Court, and once again supported the view that EU Member States are required to act jointly first in matters which may affect the EU legal order. The judgment is particularly noteworthy because;
- The Court’s interpretation on the scope and meaning of the article 218 (11) TFEU request;
- The confirmation of the ERTA-case-law post-Lisbon.
This blogpost will consider both points in turn. Continue reading
Oddly enough, state aid has recently been making headlines. In June, the Commission decided to open three in-depth investigations into tax rulings issued by Ireland, Luxembourg and the Netherlands in relation to Apple, Fiat and Starbucks respectively. In October, the Commission announced that it will also be examining whether the tax treatment of Amazon by Luxembourg is in line with EU state aid rules. These decisions are the spearhead of a recent clampdown on sweetheart tax deals between Member States and big multinationals that Commissioner Almunia says will ensure that they pay “their fair share of taxes”.
On 2 October 2013, the Committee of Ministers of the Council of Europe opened for signature Protocol no. 16 to the European Convention on Human Rights. This new Protocol, which has been referred to as the “Protocol of the dialogue” by Dean Spielmann, the President of the European Court of Human Rights (ECtHR), creates the possibility for supreme courts of the Contracting States to the Convention to request an advisory opinion from the ECtHR on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”.
Even though the material scope of Protocol no. 16 is clearly confined to the Convention and its protocols, some concerns have been expressed in the recent past, notably at the recent hearing held by the ECJ on the draft agreement on EU Accession to the Convention (“DAA”), that the use of this new instrument of consultation by courts of the EU Member States might be problematic from the point of view of EU law. More specifically, the question was raised in this context whether Protocol no. 16 would not threaten the autonomy of EU law and the monopoly of the ECJ on the interpretation of EU law, by allowing supreme courts of the Member States to engage in a kind of “forum shopping” between the Luxembourg and Strasbourg courts. This contribution purports to demonstrate that those concerns are unjustified and should not be allowed to undermine the further development of the Convention system initiated by Protocol no. 16. Continue reading
Parody is one of the limitations on copyright, contained in Article 5(3)(k) of the InfoSoc Directive (‘the Directive’). The list of limitations in Article 5 of the Directive is optional, meaning that the Member States are free to decide which of the limitations from the list they will implement into their national laws. The judgment in Deckmyn v. Vandersteen, issued on September 3rd, is about the concept of parody in the EU copyright law and it is meant to clarify two issues: the scope of harmonization of the parody limitation in the Directive and the criteria to be looked at when applying this limitation. The potential impact of the judgment, however, goes well beyond the pure sphere of copyright: at stake here was also the issue of balancing of the fundamental rights, in particular the balance between copyright and freedom of speech. The Advocate General went further than the Court and also looked at the conflict between the right of ‘human dignity’ (para. 82 of the Opinion) or ‘deepest convictions of European society’ (para. 85 of the Opinion) and the freedom of speech. Unfortunately, the brevity with which the CJEU addressed the most controversial aspects of this case, leaves many questions unanswered. Continue reading
The Court has recently decided on the appeals in two seminal cases: MasterCard MIF (MasterCard) and Groupement des Cartes Bancaires (CB). Both cases result from Commission decisions that found Article 101 TFEU to have been infringed by the decisions taken within those schemes with regard to fees that form part of the working of these payment systems. To understand both cases it is necessary to first set out the background to the MasterCard and CB systems. After that we will examine the procedure and finally the judgments themselves. This will reveal essentially three interesting issues:
- the object-effect dichotomy,
- the relation between the exclusion of competitors and the object category, and
- the possibility to take into account redeeming features.
In the field of EU B-2-C Commercial Practices, Belgium is a hard learner. Although the Belgian trade practices legislation has already been under investigation several times and has even been declared incompatible with the Unfair Commercial Practices Directive (Directive 2005/29/EC) by the EU Court of Justice (e.g. Pelckmans Turnhout NV against Walter Van Gastel Balen NV a.o.; WAMO BVBA against JBC NV and Modemakers Fashion NV; VTB-VAB against Total Belgium, and Galatea against Sanoma Magazines), the Belgian legislator nonetheless ‘maintained’ certain strict rules. For instance, the Belgian Law of 6 April 2010 on commercial practices, consumer information and consumer protection (‘LPMC’) still excludes certain professions from its scope of application and includes strict rules on discount prices and on the organization of travelling trading and fairground activities.
Not surprisingly, the European Commission decided to challenge the aforementioned rules and bring an action for failure to fulfil obligations under Article 258 TFEU against Belgium. In this short contribution, I will discuss the judgment of the EU Court of Justice (‘CJEU’) following the aforementioned action. This judgment does not only have an impact on current Belgian trade practices legislation – the LPMC was abolished and replaced by Book VI of the (recently adopted) Belgian Code of Economic Law –, but also contains lessons for other EU Member States.
Directive 2008/115/EC on the returns of irregular migrants (or, less neutrally, ‘illegally staying third-country nationals’) has been the subject of fierce criticism and not without good reasons. In an attempt to make the legal framework clearer, the Court of Justice of the European Union (CJEU) has been called to interpret its provisions on numerous occasions (such as Kadzoev, El Dridi, and Achughbabian). In particular, with regard to Article 15 on the detention of irregular migrants prior to their removal the Court has so far explained how the period of detention should be calculated and when there is a ‘reasonable prospect of removal’ (Kadzoev); it has precluded the incarceration of irregular migrants during the return process on the sole ground that they remain on the territory of a Member State even though an order to leave exists (El Dridi), and it has attempted to strike a balance between the right to be heard and the efficiency of the administrative procedure to extend the period of detention (G & R).
In the past few months one has witnessed the re-emergence of the issue of pre-removal detention. The judgment in the case of Mr. Mahdi, released on the 5th June 2014 by the Third Chamber, is central in this regard and raises mixed feelings. On the one hand, the Court provides the national authorities with important guidelines with a view to ensuring –at least to a certain extent- the right of irregular migrants to effective remedies. On the other hand, it seems to lack inspiration when dealing with harder questions that require a constructive approach beyond the mere replication of the provisions of the Directive. Continue reading
In October 2012 I wrote an entry about the General Court judgment that annulled the Commission decision in the Greek Lignite-saga, concerning the Greek state-owned electricity company DEI that benefitted from the exclusive right to mine for lignite (brown coal) which, according to the Commission, distorted competition. In a nutshell I found that the judgment did little to clarify the obscure clarity or clear obscurity of Article 106 TFEU, but it was certainly good news for DEI, the state-owned electricity company that benefitted from the exclusive right to mine for lignite. In that blog I wrote that the Commission should appeal so that the Court could clarify its own case law (instead of the General Court second-guessing what the Court could have meant). Well, the Commission did appeal, but I’m not sure whether the Court clarified its own case law. One thing that is for sure it that Article 106 TFEU may well have been given a new lease of life. This turns on the question whether actual abuse by the public undertaking must be shown in Article 106 TFEU-cases. This follows from the fact that Article 106 TFEU is addressed to the Member States, but is an empty norm that only gets substance when it is read in conjunction with another Treaty provision. In this regard Article 102 TFEU is by far the most popular norm to be mated to Article 106 TFEU as the exclusive right mentioned in Article 106 TFEU is easily equated to a statutory monopoly for the public undertaking and thus dominance within the meaning of that provision.
Maria Bergström and Anna Jonsson Cornell (eds.), European Police and Criminal Co-Operation, Swedish Studies In European Law, Volume 5, Hart Publishing 2014, 198 pages, ISBN: 978-1-84946-350-8
The fields of police and criminal law cooperation within the European Union have been significantly transformed and widened with the entry into force of the Lisbon Treaty in 2009; yet, they remain contested on a number of grounds. Maria Bergström and Annna Jonsson Cornell, the editors of the book under current review, argue that there are two main reasons for this. Firstly, they consider that this is because the two policies have a significant impact on the rights of individuals and on the relationship between the individual and the State; secondly, they consider that this is because policing and criminal law remain anchored to State sovereignty and the monopole of enforcement exercised by the States in these domains. Against this background, the different contributions of the book take stock of post-Lisbon developments in order to assess the extent to which the reform of 2009 and recent legislative initiatives relate to the two main controversial aspects identified by the editors. With legislative proposals such as the new Europol Regulation and the establishment of the European Public Prosecutor pending in Brussels, the book comes out at a time in which the powers of the EU in the fields are in the spotlight.
By Brendan Van Alsenoy and Marieke Koekkoek
In May of this year, the Court of Justice of the European Union (CJEU) decided that individuals can ask Google to stop referring to certain information about them, as discussed previously on this blog. The CJEU’s recognition of this so-called “right to be forgotten” has kicked up quite a storm. Now that the dust is beginning to settle, it is time to direct our attention to questions of practical implementation. One set of questions is about territorial reach. How far should the right to be forgotten extend, geographically speaking? Should Google, upon finding that an individual’s request is justified, modify its search results globally? Or should it only modify search results shown within the EU?And if so, how useful or effective is this right to be forgotten then?
Opinions may differ on what is the “most dangerous branch” in the EU. However, at the moment the most ambitious institution regarding the expansion of its powers is doubtlessly the European Parliament (EP). The recent judgment in Case C-658/11 Parliament v. Council shows that even the Union’s traditionally “sovereignty-sensitive” Common Foreign and Security Policy (CFSP) is not immune to the Parliament’s advances.
Wielding the all-powerful mantra of “democratic legitimacy” (on the concept in transnational context, see this recently published Special Report), the EP has a decades-long history of increasing its influence in European politics. In recent months, it could celebrate important victories by interpreting the new rules laid down in the post-Lisbon reform EU Treaties in its favour. The most prominent triumph concerned the first ever election, and no longer mere approval, of the new Commission President by the Parliament. By proposing Jean-Claude Juncker as the prevailing Spitzenkandidat, the European Council acquiesced to the Parliament and set an important precedent for the future direction of the European polity. Continue reading
10th International Workshop for Young Scholars (WISH) – New Directions in EU and Global Risk Regulation
HEC Paris, December 2014 (exact date to be determined). Deadline for proposal submission: 1 September 2014.
Bilingual (fr/en) Doctoral Colloquium on The European Union and International Law/L’Union européenne et le droit international
University of Fribourg (CH), 17-18 April 2015. Deadline for abstract submission: 31 August 2014.
Postgraduate Law Conference 2015
University of Copenhagen, 29-30 January 2015. Deadline for abstract submission: 10 October 2014.
International Interdisciplinary Conference “The Transnational in International Law”
University of Bremen, 25-27 March 2015. Deadline for abstract submission: 31 October 2014.
On 3 April 2014 the CJEU confirmed the General Court’s judgment of 2 March 2012 in the State aid dispute between the European Commission and the Kingdom of the Netherlands, ING Groep NV and the Dutch Central Bank (De Nederlandsche Bank NV). All six grounds of appeal brought by the Commission in this case were dismissed by the Court. Most notable are the Court’s considerations on the applicability of the private investor test. The Court confirmed that the Commission cannot evade its obligation to assess the economic rationality of a given measure in the light of the private investor test solely on the basis that the measure is connected to a measure which itself already constitutes State aid. Centrally, the decision raises the question as to why the Court sticks to the private investor test in the particular circumstances of the given case. Is the private investor test to be applied by default? Or are there good reasons for the applicability of this test, no matter what?
Workshop Global Administrative Law and the Concept of Law
University of Lisbon Law School, 28 November 2014. Deadline for abstract submissions: 15 August 2014.
Workshop Imagining post-neoliberal regulatory subjectivities
University of Turku, 15-17 October 2014. Deadline for abstract submissions: 15 August 2014.
Trade, Law & Development – Call for submissions
Deadline for manuscript submissions: 17 September 2014.
The free movement of capital provision of Art. 63 TFEU applies ratione loci ‘worldwide’: to both capital movements within EU’s internal market and to movements from the internal market to third countries (and vice versa). Or perhaps almost worldwide, since the question arises whether the free movement of capital also applies to the British, Danish, Dutch and French Overseas Countries and Territories (OCTs), which are not part of the internal market but associated with the EU?
In 2011, the CJEU decided in Case C-384/09 Prunus that Art. 63 TFEU also applied to the OCTs as if they were third countries; they are not third countries, since they áre part of the EU Member States (such as the Caribbean island of Curacao which is part of the Kingdom of the Netherlands, both constitutionally as under public international law; under EU-law, Curacao is an OCT).
Now, only three years later, the CJEU has decided otherwise in joined cases C-24/12 and C-27/12 X BV and TBG Limited. It came to the conclusion that not Art. 63 TFEU applies to the OCTs, but that a special capital movement provision which is contained in the OCT Association Decision applies in relation to the OCTs. This latter provision liberalises – in my view – ‘less’ than Art. 63 TFEU, since it ‘only’ applies to ‘direct investments in companies’, whereas Art. 63 TFEU also applies to (at least) 12 other categories of capital movements, such as investments in immovable property.
In this very interesting Grand Chamber judgment, the Court found Sweden’s scheme promoting the national production of green electricity (in accordance with Directive 2009/28, the so-called RES Directive) to be compatible with article 34 TFEU. The Court’s judgment is particularly notable for its deferential stance towards measures related to environmental protection based on EU rules which – paradoxically – are very nationally oriented although they tackle the global problem of climate change. The judgment is to be welcomed for giving both the EU and its Member States sufficient policy discretion on how to mitigate the effects of climate change. However, it remains problematic that the EU legislator opted for such a national approach, as this is bound to frustrate the achievement of a truly European electricity market. In adopting this deferential approach, the Court had to deal with some interesting legal issues relating to the free movement of goods, in particular:
- The discriminatory nature of the rules in question and, despite this, their possible justification;
- The impact EU legislation has on the proportionality analysis of the Court.
Migration Summer School : International Migration Management – From Theory to Practice
University of Barcelona, 2-12 September 2014. Deadline for applications: 30 August 2014.
2014 Doctoral Scholarship Conference
Yale Law School, 14-15 November 2014. Deadline for abstract submission: 1 August 2014.
Global Law and Governance Summer School
European Public Law Organisation, Cape Sounion, 14-18 July 2014. Deadline for applications: 30 June 2014.
Conference ‘Using Human Security as a legal framework to analyse the Common European Asylum System‘
T.M.C. Asser Instituut, The Hague, 4 July 2014. Registration still open.
On June 5 the Court has handed down the eagerly awaited judgment in the Kone case. This is one of the several cases that result from the Commission’s decision finding a cartel in the elevators and escalators sector. The decision concerned a bid rigging cartel involving four well-known firms (Kone, Schindler, Otis and ThyssenKrupp) active in the market for the production, installation and servicing of elevators and escalators. Bid rigging is a practice by which the participants in a tender procedure coordinate their bids in order to determine who wins the tender at what price. They will typically determine the cartel member intended to win and ensure that the other bidders put in a higher price. As most of these products are bought by professional buyers that tend to hang on to their purchasing records, civil damages claims resulted from the Commission’s finding that there was cartel. This means that the customers of the companies involved in the cartel seek to claim the supracompetitive part of the price they paid (the cartel mark-up). In keeping with the need for more damages claims fervently voiced by then Competition Commissioner Neelie Kroes, the Court has had to deal with quite a few cases on this issue already, but many more are to be expected. Kone deals with the question to what extent the cartelists are required to compensate the higher price charged not just by the members of the cartel, but also by other companies in the market (the umbrella effect). Continue reading