Category: Free movement of goods

A Harmonised European (technical) Standard-Provision of EU Law! (Judgment in C-613/14 James Elliott Construction)

By Megi Medzmariashvili

Is a harmonised technical standard (HTS) developed in response to the Commission’s mandate, a provision of EU Law? Up until recently, this issue has not been raised before the CJEU, much to academics’ surprise working in this field.  Contractual litigation in James Elliott Construction became a trigger for the inquiry about the legal nature of HTS. The Court handed down its judgment on 27 October 2016, nine months after the Advocate General’s (AG) Opinion was published. Two blog posts discussed the AG’s Opinion and offered divergent analysis thereof.

The judgment, in essence, followed the AG’s Opinion resulting in the finding that an HTS is a part of EU law. The Court’s line of argumentation, as opposed to the AG’s, is remarkably cautious. In short, the Court regarded privately produced technical rule-HTS, as a provision of EU law.  At the same time, the ECJ was extremely keen to prevent an HTS from having effects on a contractual relationship or on the Irish Law on Sale of Goods. Continue reading

Harmonised European Standards and the EU Court of Justice: Beware Not to Open Pandora’s Box

By Bardo Schettini Gherardini

As already stressed by Megi Medzmariashvili in her post of 1st March 2016, the question of whether the Court of Justice of the European Union (‘the Court’ or ‘CJEU’) has jurisdiction to give a preliminary ruling on the interpretation of a harmonised technical standard (‘HTS’) adopted by the European Committee for Standardisation (‘CEN’) is, for the first time, raised in Case C-613/14, James Elliot Construction Ltd v Irish Asphalt Limited.

As Director – Legal Affairs of both CEN and CENELEC (the European Committee for Electrotechnical Standardization), I would like to give an insider’s view on the European standardization system and to expose a more critical approach to the Opinion delivered by the Advocate General (‘AG’) Campos Sanchez-Bordona on 28 January 2016.  The AG suggested, in reference to the first question referred for a preliminary ruling, that the Court must declare that it has jurisdiction for the main reason that the HTSs should be regarded as acts of the institutions, bodies, offices or agencies of the Union for the purposes of Article 267 of the Treaty on the functioning of the Union (‘TFEU’), which is the primary law basis of the cooperation between the CJEU and the national courts via the preliminary ruling system. The opinion of the AG is based on three arguments that I would like to comment on, just after insisting on some essential elements of background on the way HTSs are produced and how CEN and the other European standardisation bodies are working.   Continue reading

Pernicious Effect of Similar Medicinal Product’s Orphan Exclusivity: CJEU Dismisses Teva’s Appeal (C-138/15 P)

By Mayank Dixit

In a significant, yet unusual judgment the Court of Justice of the European Union (CJEU) upheld the General Court’s decision (T-140/12; Teva Pharma v. EMA) that had affirmed the European Medicines Agency’s (EMA) rejection of Teva’s generic drug application for Glivec® (active substance-imatinib), not due to the reference product’s own orphan drug exclusivity but in view of orphan drug exclusivity of a similar medicinal product – Tasigna® (active substance-nilotinib).

The judgment is bizarre not only because it interprets the underlying orphan drug regulation in a manner incongruous with the spirit and substance of the legislation, but also for its potential to provide an unfair leg-up to the brand drug companies for extending their market monopolies indefinitely. It simply fails to fathom the underlying welfare rationale of the Regulation, which is meant to ensure the same quality of treatment for patients of rare conditions as those suffering from other diseases. The Court’s decision provides a skewed playing field where the interest of patients and generic pharmaceutical companies will be impacted by the unjustified extension of monopoly periods of brand drug products thus ensuring exploitative pricing of life-saving drugs. Continue reading

Opening the ECJ’s Door to Harmonised European Standards? (Opinion of the AG in C-613/14 James Elliott Construction)

By Megi Medzmariashvili

The James Elliott Construction case brings before the Court of Justice (ECJ), for the first time, the issue of whether it is within the Court’s jurisdiction to give preliminary rulings on harmonised technical standards (HSs). This contribution will analyse Advocate General (AG) Campos Sánchez-Bordona’s Opinion in this case, in particular its potential effects on the legal status and copyright protection of HSs. It will also discuss, more generally, the legality of the delegation of rule-making powers to the European Standard Bodies (ESBs). If the Court follows the AG’s opinion it will most certainly craft a New Approach to the New Approach. Continue reading

POMFR: José Luís Da Cruz Vilaça, EU Law and Integration: Twenty Years of Judicial Application of EU Law

By Tim Corthaut

Sometimes a book wins you over, and José Luís Da Cruz Vilaça’s EU Law and Integration: Twenty Years of Judicial Application of EU Law (Oxford/Portland, Hart 2014), is such a book.

I must admit that I had some reservations at first over the concept of the book, which is in essence an overview of the legal career – both as a legal scholar and a judge – of José Luís Da Cruz Vilaça, on the basis of a series of articles on different topics written over the course of two decades. Books like this only stand out if they can avoid three traps. Continue reading

Neues aus dem Elfenbeinturm: November 2014

Conference “International Litigation in Europe: the Brussels I Recast as a panacea?”

Verona University, 28-29 November 2014. Deadline for registration: 20 November 2014.

Workshop “L’ordre juridique de l’Union européenne sous l’angle de son action extérieure/The Legal Order of the European Union from the Perspective of Its External Action”

University of Luxembourg, 24 November 2014. (Free) registration required.

The Treaty of Lisbon and EU Criminal Law – Five Years On

University of Innsbruck, 1 December 2014. (Free) registration required.

Third REALaw Research Forum “Judicial Coherence in the European Union

University of Utrecht, 30 January 2015. Deadline for abstract submission: 1 December 2014.

13th Jean Monnet Seminar “EU Law and Risk Regulation”

Inter-University Center, Dubrovnik, 19-25 April 2015. Deadline for paper proposal submissions: 15 January 2015.

‘Facilitating’ infringements of article 34 TFEU and the territorial nature of green electricity support schemes: Case C-573/12 Ålands Vindkraft AB v Energimyndigheten

By Laurens Ankersmit

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. On the other hand, the EU legislator’s national approach may not contribute to the achievement of a 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.

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EU law, Sunday trading restrictions …and the Charter?

By Thomas Horsley

For almost 25 years, retailers have sought, without much success, to invoke Union law in an effort to liberalise Member State restrictions on shop opening hours. The Pelckmans judgment, delivered by the Court of Justice (First Chamber) on 8 May 2014, marks a new stage of development in a long line of case law. In that decision, the CJEU was requested to review, for the first time, the compatibility of Belgian legislation prohibiting seven-day retail trading with provisions of the EU Charter of Fundamental Rights. The Court’s response on the Charter is unremarkable. Nevertheless, Pelckmans remains an interesting case. That decision refreshes an important statement of principle in EU internal market law: non-discriminatory rules on retail trading hours fall outside the scope of the Treaty. More significantly, it reminds us that the legal framework governing the outer limits of the Treaty freedoms remains fragmented – a structural feature that the Court arguably maintains to its own advantage.

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AG Bot puts Belgium in Catch 22 position… or not

The future judgement in Joined Cases C-204-208/12 Essent Belgium N.V. v. Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt could very well be one of those landmark cases in which the CJEU clarifies one of the fundamental doctrinal issues in internal market law: can Member States rely upon the rule of reason to justify distinctly applicable measures? In his Opinion, Advocate General Bot makes a convincing case that this should (under strict conditions) indeed be the case.

In this case, the Belgian government fined Essent Belgium for failure to comply with Belgian legislation requiring electricity suppliers to purchase a certain amount of green energy from Belgian suppliers. As many readers will no doubt notice, this case is very similar to PreussenElektra, however, the legislative context and European electricity market have undergone substantial changes since that judgment was handed down. Today, EU legislation enables Member States to verify whether electricity produced in other Member States is green. Also, EU legislation now requires Member States to reach certain national targets for contribution to green electricity production.

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Case E-19/11: EFTA-Court finds no smoking gun in caffeinated alcoholic drinks case

With our eyes glued on the Court of Justice, it is sometimes easy to overlook the work of its less-famous cousin, the EFTA Court, also situated in Luxembourg, just a stone’s throw away from the CJEU. Today, our attention turns to the judges of the European Economic Area, after they delivered an interesting case on the free movement of goods this morning. Continue reading

Case C-171/11 Fra.bo: Horizontal Effect of Article 34 TFEU

Yesterday, the Court decided to give horizontal effect to Article 34 TFEU on the free movement of goods. In the Fra.bo case, the Oberlandesgericht Düsseldorf had asked whether a private-law association (DVGW) ought to be subject to the principle of free movement of goods. The organisation at issue operates both to draw up technical standards for products used in the drinking water supply sector and to certify products based on these standards.

As Laurens has pointed out in his post on the Advocate General’s opinion, the Court has accepted such horizontal effect for the other Treaty freedoms, but not yet for the case of the free movement of goods. Advocate General Trstenjak, however, suggested in her Opinion to extend the reasoning of cases like Bosman, Viking and Laval by analogy. Based on their horizontal effect, fundamental freedoms could thus be imposed in cases where non-public organisations held the power to draw up certain kinds of collective rules. In the present case, the German private organization DVGW possessed in her view a de facto competence to determine what fittings could be offered for sale on the market in pipes and accessories for drinking water supply in Germany (para 41). The Advocate General pointed out that horizontal effect was required by the effet utile of European Union law because (paras 46 ff.) the abolition of obstacles to trade imposed on Member States might otherwise be compromised by obstacles erected by private parties. Also, the fact that some Member States would rely on public standardisation bodies while others turn to private organisations may lead to inequalities in the application of EU law. Continue reading

Procuring military equipment under the public procurement directive

As one of the last bastions of purely national competence, trade in arms is excluded from the application of the Treaty rules. Article 346 TFEU provides that the Treaties do not preclude Member States to trade and procure war material for the protection of the essential interests of its security. Nonetheless, this provision is strictly interpreted by the Court and the case discussed here exemplifies that only goods intended for specifically military purposes qualify for the exemption under article 346 TFEU. But what exactly is equipment intended for specifically military purposes?

At issue in case C-615/10 Ins Tiimi is the procurement of the Finnish defense authorities of tiltable turntable equipment. This equipment is used to facilitate the ‘carrying-out of electromagnetic measurements and the simulation of combat situations’. As such it was argued by the Finnish authorities that it was procured for military purposes. Ins Tiimi, a company which lost the tender, did not agree, claiming that the equipment could be used  for civilian uses as well. Whether or not the tiltable turntable equipment qualified for the exemption was important because otherwise the procurement procedure had to comply with the public procurement directive (directive 2004/18/EC).

There are essentially two conditions that Member States have to fulfill in order to escape the application of EU law according to article 346 TFEU when procuring military material:

  • The measures relating to military procurement must concern ‘arms, munitions and war material’;
  • And secondly, those measures must be necessary for the protection of the essential interests of the security of that Member State.

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Fair-trade coffee and tea under the procurement directive

Can public authorities procure fair trade products, or are they debarred from specifically referring to the fair trade qualities of those products under the public procurement directive (directive 2004/18/EC)? This is one of the issues underlying the judgment of the Court in Case C-368/10 Commission v. Netherlands.

In 2008, the Dutch province of North Holland announced in a tendering procedure that it wished to procure coffee machines and the products necessary to make them function (coffee, tea, sugar, milk, cups). It required that those products to be delivered to bear the Max Havelaar label, a private label that adheres to the rules of the Fairtrade Labelling Organisation. Considering that this tender was contrary to the public procurement directive (2004/18/EC) the Commission started an infringement procedure against the Netherlands.

Obviously, specifically requiring products to bear only that label is contrary to EU public procurement law, as it is way too over specific and does not allow for any form of competition for the contract. However, the Court made – for the first time – some interesting points on procuring fair trade products in general.

The two points I will discuss are:

  • Fair trade requirements to products cannot be part of technical specifications but are conditions relating to the performance of the contract;
  •  Fair trade criteria can be used as award criteria for public supply contracts.

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Opinion of Advocate General Jääskinen in Case C-5/11 Donner

The case I wish to highlight in this post is the Opinion of Advocate General Jääskinen in Case C-5/11 Donner, concerning a rather crafty and ingenious attempt by Mr. Donner to circumvent the application of certain German copyright laws. Mr. Donner sold various types of ‘Bauhaus’ furniture which was protected by German copyright, but not protected by Italian copyright. Although Mr Donner targeted German customers through advertisements in Germany and a website in German, he sold these products not in Germany but from a warehouse in Italy through cooperation with an Italian company called Dimensione. Those products could nonetheless be delivered optionally to German customers by the Italian company Imspem (owned by Mr. Donner).

One of the questions the Advocate General answers in this case is whether the conduct of Mr. Donner leads to ‘distribution to the public’, that is the German public, within the meaning of the Copyright Directive. Mr. Donner, of course, considers that these products were distributed to the public in Italy, not in Germany. The Copyright Directive provides in Article 4(1) that ‘Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise’. The Advocate General considers that the products were distributed to the public in Germany:

55.      In the situation of cross border distance selling arrangements, the assessment of whether copies are made available to the public in the Member State where enforcement of copyright is sought must be based on the criteria elaborated by the Court in L’Oréal and Others. (38) If a seller targets consumers in a given Member State and creates or makes available to them a specific delivery arrangement and method of payment that enables consumers to purchase copies of copyright protected works in that Member State, then there is distribution by sale in that Member State. (39) The existence of a German language website, the content of Dimensione’s marketing material, and their sustained cooperation with Inspem, as an undertaking engaged in sales and delivery to Germany, all point toward a targeted exercise. What is important is whether the seller has created a targeted sales and delivery channel for buyers to acquire works that are copyright protected in the buyer’s Member State.

56.      In this respect the way the delivery of the copies is organised is of secondary importance. There is distribution by sale from Member State A to the targeted public in Member State B even if under the distribution scheme the copies of the works are delivered by mail or a distribution service. But the extent of the involvement of the carrier in the selling arrangement affects the question whether the carrier is to be considered as a participant in the distribution scheme or merely an intermediary referred to in Article 8(3) of the Copyright Directive, (40) whose services are used by a third party. Such an intermediary may be made subject to injunctions, but not to sanctions under Article 8(1) of the Copyright Directive and the corresponding provision in Article 11 of the Enforcement Directive.

Horizontal direct effect of article 34 TFEU?

In her recent Opinion in case C-171/11 Fra.bo SpA v. Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW), Advocate General Trstenjak has broken a lance for horizontal direct effect of article 34 TFEU. Until now, the Court has always denied horizontal direct effect of the free movement of goods provisions, in contrast to the other fundamental freedoms.

In her reasoning she uses the analogy of the application of horizontal direct effect to justify the extension of the free movement of goods rules to apply to private persons. The case concerned the refusal by a German private organisation DVGW to certify the brass sockets produced by the Italian company Fra.bo. If certified by DVGW, German legislation would presume that the brass sockets were in conformity with its legislation and usable in German water supply.

Instead of interpreting the concept of public body in such a broad way as to include DVGW, the Advocate General choose to apply the Bosman,Viking and Laval cases by analogy, arguing that “rules of any other nature aimed at regulating in a collective manner gainful employment, self-employment and the provision of services” should also be extended to the case at hand and the free movement of goods.

This was so because DVGW had, in fact, legislative cometence:

 42.      Compte tenu de cette compétence de fait dont disposent DVGW et sa filiale à 100 % pour déterminer quels produits pour le montage, l’extension, la modification ou l’entretien d’installations d’eau potable situées après le point de raccordement du bâtiment ont des chances de se vendre sur le marché allemand et, donc, peuvent être commercialisés, leur activité de normalisation et de certification ne peut pas être exclue du champ d’application de la libre circulation des marchandises.

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