Category: Free movement of services

Taken for a Ride? Advocate General Szpunar’s Opinion on Uber’s Status

By Andrew Murray

Case C-434/15 Asociación Profesional Elite Taxi v. Uber Systems Spain SL, Opinion of the Advocate General, 11 May 2017

Introduction

Uber is among the best known sharing economy services offering what Uber would call a platform that allows the introduction of people offering ride shares to those seeking lifts to their destination. Uber have been clear and single minded in their legal status in a number of cases around the globe: they’re not a taxi firm they are a technology company.  This position has been challenged by AG Szpunar in his recent opinion in the case of Asociación Profesional Elite Taxi v. Uber Systems Spain SL. His position that “it is undoubtedly the supply of transport which is the main supply and which gives the service economic meaning” is being seen as a major setback for Uber. 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

Limited liability for free Wi-Fi access (Case C-484/14, Mc Fadden v Sony Music)

By Justin Jütte

The civil liability of intermediary service providers remains a hotly debated topic in EU law, especially in relation to infringement of intellectual property rights (IPRs). Whereas the Information Society Directive (Directive 2001/29/EC), as well the IP Enforcement Directive (2004/48/EC) provide that owners of IPRs can, in principle, request injunctions against intermediaries, the E-Commerce Directive (Directive 2000/31/EC) exempts certain intermediaries from indirect liability under certain, well defined circumstances. The present case raises questions as to the scope and interpretation of Article 12 of the E-Commerce Directive, in particular with regard to fundamental rights. Concretely, the referring court in Tobias Mc Fadden v Sony Music Entertainment Germany GmbH asks under which circumstances and to what extent operators of publicly accessible Wi-Fi networks can be held liable for infringements of works protected by copyright, and what type of injunctions can be ordered against such operators.

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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

Neues aus dem Elfenbeinturm: May 2015

Summer Schools “Dublin III: Two Years on”, “Venice School of Human Rights”, “Venice Academy of Human Rights”

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-21 June/26 June – 4 July/6 – 15 July 2015. Deadline for application: 21 May 2015/check website.

Conference “The European Convention on Human Rights and General International Law”

European Court of Human Rights, Strasbourg, 5 June 2015. Deadline for registration: 28 May 2015.

Summer School “The Protection of Fundamental Rights in Europe”

University of Bologna, 28 June – 3 July 2015. Deadline for application: 10 June 2015.

Conference “20 Years Later: The Legacy of Bosman”

TMC Asser Institute, 18 June 2015. No deadline for registration.

POMFR: Public Services in EU Law by Wolf Sauter

By Markus Kern

Wolf Sauter, Public Services in EU Law, Cambridge University Press 2014, 262 pages, GBP 65.00/ USD 99.00, ISBN: 9781107642423

Situated between the market and the state, the notion, concept and characteristics of public services are often multifaceted and difficult to grasp. The EU layer of public service regulation further adds to this complexity as it interacts in many different ways with the national legal frameworks in this field: EU law may structure national legal norms, coordinate the provision of services between the Member States, bring about minimal or maximal standards (e.g. pertaining to quality, ubiquity or affordability of the services provided), comprise detailed regulation or even set prices for the provision of public services as in the case of mobile roaming tariffs. At the same time the law on public services is under the influence of a whole range of EU law provisions and regimes: namely the rules on free movement, competition law and state aid, general and sector-specific primary law provisions, horizontal rules of secondary law, as well as a large body of sector-specific secondary EU law, which has increased substantially over the past few years. With his book Public Services in EU Law Wolf Sauter undertakes a challenging attempt to elucidate the complexity of EU law in the field of public services. 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

The outer limits of article 18 TFEU? Case C-628/11 International Jet Management

By Laurens Ankersmit

On the face of it, one might consider the outcome of this Grand Chamber ruling unsurprising. The Court held that EU law precludes German legislation which establishes an authorization requirement for undertakings established in another Member State to provide services in Germany. That authorization requirement was not required for German undertakings, was established for reasons of protecting the national economy (!) and did not factually recognize an operating license granted on the basis of EU legislation by another Member State.

Yet, this ruling concerned the regulation of air transport services, which is not only subject to a particular regime under free movement law, but is also politically highly sensitive (national airlines are still seen as a source of pride by many) and still operates much in an international regulatory context which is not always in line with EU law and policy. The Court was therefore still required to answer some tough legal questions, in particular how to reconcile article 58 (1) TFEU (the prohibition on restrictions to provide services of article 56 TFEU does not apply to transport services which has its own regime) with article 18 TFEU (the prohibition of discrimination on the basis of nationality). The issue was further complicated by the fact that the authorization requirements were only required with respect to flights from and to third countries.

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Case C-221/11 Leyla Demirkan: introducing ‘regressive interpretation’ for Association Agreements

On the 24th of September the CJEU delivered its judgement in the Demirkan case. Ms Demirkan, a Turkish national, had requested a short-term tourist Visa to German authorities to go and visit her stepfather, a German national. However, since the German authorities rejected her request, Ms Demirkan attacked the decision arguing that on the basis of Article 41(1) of the Additional Protocol to the EU–Turkey Association Agreement she was entitled to enter Germany without a Visa because at the time of the conclusion of the Additional Protocol -1970- Turkish nationals did not need a Visa to enter Germany as tourists. On the basis of Ms Demirkan’s claim, the referring court in Berlin addressed two questions to the CJEU. First, it asked whether article 41(1) of the Additional protocol containing the ‘stand-still’ clause on restrictions related to the freedom of establishment and the freedom to provide services included the passive reception of services. Secondly, the referring court asked the CJEU whether a tourist traveling to visit family could be considered as a passive recipient of services when the purpose of traveling is personal and not economical. Continue reading

AG Cruz Villalon in Case C-221/11 Demirkan: Selective Associationism

In Demirkan, the Court will have the difficult task to decide whether Article 41 (1) of the Additional Protocol to the 1963 Association Agreement between the EU and Turkey may actually extend to the passive freedom to receive services (the freedom to move to a Member State to receive a service). In his opinion presented last Thursday, Advocate General Cruz Villalon suggests the Court should say no – based on somewhat conventional, yet interesting arguments which use the rules of interpretation of the Vienna Convention on the Law of Treaties in a very selective way. Continue reading

Court of Justice rejects Switzerland’s appeal concerning Zurich airport

After an Odyssey of nearly 10 years, the legal proceedings of Switzerland against German restrictions on flights to and from Zurich airport have come to an end:  The CJEU, in its judgement delivered on 7 March 2013 (Case C‑547/10 P), has rejected Switzerland’s appeal against the judgment of the General Court of 9 September 2010 (Case T‑319/05), by which the General Court had rejected Switzerland‘s action for annulment against Commission Decision 2004/12/EC of 5 December 2003 (OJ 2004 L 4, p. 13), thus allowing Germany to continue to apply unilateral restrictions on flights to and from Zurich airport over German territory.

Beyond its undoubtedly grave consequences for the airport of Zurich and all other affected stakeholders, the case was also particularly interesting from the point of view of Swiss-EU relations in general: As Advocate General Jääskinen pointed out in his Opinion delivered on 13 September 2012, this is the first time Switzerland initiated an action for annulment before the EU judiciary. Unfortunately, like the General Court before, the CJEU did not take the opportunity to assess the legal consequences of the Swiss-EU Agreements on the procedural status of Switzerland before the CJEU. Continue reading

Case E-16/11 ESA/Iceland: It might be called a lifejacket, but it doesn’t mean it’s built for emergencies

Directive 94/19/EC on deposit-guarantee schemes, which has also been transposed into EEA law, obliges EU and EEA EFTA states to create deposit-guarantee schemes. Deposit-guarantee schemes reimburse a limited amount of deposits to depositors where their bank has failed. The purpose is to protect a part of depositors’ wealth from bank failures, and thus to prevent depositors from making panic withdrawals from their bank with potentially dire economic consequences. In the present case, the EFTA Court was confronted with an action by the EFTA Surveillance Authority against Iceland. The Authority claimed that Iceland had violated the transposed Directive and thus EEA law in the aftermath of its major economic crisis and collapse of the banking sector in 2008, by failing to ensure that British and Dutch depositors using the famous ‘Icesave’ accounts offered by Icelandic banks received the minimum amount of compensation set out in Article 7(1) of the Directive. In a rather surprising decision handed down on Monday this week, the Court interpreted the Directive very narrowly, effectively finding that Iceland had not failed to comply with its obligations under EEA law. Continue reading

Case C-176/11 HIT & HIT LARIX v. Bundesminister für Finanzen

On 12 July 2012, the  ECJ handed down a new ruling on gambling advertisements. The judgment in C-176/11 HIT and HIT LARIX clarifies that a country may restrict advertisements for foreign casinos on the ground that the casino’s home state does not provide equivalent protection for gamblers. However, they cannot require identical regulation, and the restriction must be directly related to protecting consumers.

At the same time, however, the judgment raises once more the question of what regulations should be found proportional in gambling cases. The disagreement over proportionality is evident in the differences between the opinion of the Court and that of Advocate General Mazák, and will no doubt lead to further debate regarding the exact scope of Member State freedom in this area.

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