One of the hottest topics in international trade law currently is the seals dispute between the EU and a number of arctic countries, notably Canada and Norway. The dispute has not only given rise to proceedings before the WTO (providing more wood for the ongoing fiery debate on the legality of PPM-measures), but has also found its way to Luxembourg in the form of a number of direct actions for annulment of EU regulations banning trade in seal products.
Today’s Opinion of Advocate General Kokott (Opinion in Case C-583/11P Inuit Tapiriit Kanatami and Others v Parliament and Council) concerns one of those cases. It also concerns one of the most contentious issues in EU law: the locus standi of individuals for a direct action for annulment of EU legal acts (see my previous post on the judgment of the General Court). As is well known, the CJEU has taken a very restrictive stance on the locus standi of non-privileged applicants (that is: individual parties, rather than privileged applicants such as Member States and the EU institutions, as mentioned in the second and third paragraph of article 263 TFEU). The criteria for direct and individual concern are so strict that it is very difficult for individuals to directly challenge EU legal acts. In particular, the requirement for individual concern, also known as the ‘Plaumann formula’ (see the bottom of page 107 in Case 25/62 Plaumann v. Commission), is especially hard for individuals to meet.
The EFTA Court handed down an interesting decision in September 2012 which merits a short comment (I am grateful to Christian Frommelt for pointing me towards the case). The Surveillance and Court Agreement of the EEA EFTA countries does not foresee a procedure akin to the preliminary reference procedure in the context of EU law. However, there is an advisory opinion procedure, which neither obliges the courts of EEA EFTA countries to submit questions on the interpretation of EEA law nor produces binding outcomes. In its decision in Irish Bank Resolution Corporation and Kaupthing Bank, however, the EFTA Court suggested – at least between the lines – that matters might not be just as simple as that. Continue reading
On November 6th, the Grand Chamber of the CJEU issued a ruling in Case C-199/11 (Europese Gemeenschap v Otis NV and Others). The case concerns the principle of effective judicial protection (laid down in Article 47 of EUCFR) and the private enforcement of competition law. The Brussels Commercial Court referred the issue for a preliminary ruling in the course of a dispute between Otis and the other businesses and the EU, represented by the Commission.
The main controversy in the case was whether the principle of effective judicial protection was adequately safeguarded. The Commission, in this case, played a double role: first as the public enforcer of the EU competition law, and second as the victim of the anticompetitive practices. This meant, in a nutshell, that the Commission was asking for damages in a private suit on the basis of its own previous findings of anticompetitive behavior.
It finally happened: After more than a decade, Mr Yassin Abdullah Kadi is no longer ‘blacklisted’ by the UN and the EU.
To recall, on 17 October 2001, the United Nations Security Council added Mr Kadi to a so-called ‘blacklist’, thus requiring his financial assets to be frozen in view of his suspected involvement in the financing of international terrorism. Two days later, the EU followed suit by adding Mr Kadi on its own list and thus subjecting him to EU measures implementing the Security Council resolutions, which Mr Kadi subsequently challenged before the EU courts. Fast forward almost eleven years: On 5 October 2012, the Security Council removed Mr Kadi from the UN list, ‘after concluding its consideration of the delisting request submitted by this individual through the Ombudsperson’. A week later, the EU followed suit once more and took Mr Kadi off its list as well.
This period around the end of summer breaks is probably a busy time for everyone, so I will keep it short; as always, readers of this blog are very much welcome to point out and discuss some points in more detail in the comments if so desired. In this case, the Court was asked about the content of the obligation to ‘facilitate’, in accordance with national legislation, entry and residence for ‘any other family members’ (set out in Article 3(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely) who are dependants of a Union citizen. For this wider circle of ‘other family members’ (as opposed to the narrow circle of family members set out in Article 2 (2) of the Directive), Member States enjoy a broader margin of discretion and do not have to grant an ‘automatic’ right of entry and residence (para 20). The Court also clarified some matters on the situation of dependence that must be given for such a family member under Article 3 (2), but I’ll focus on the first point for the purpose of this post. Continue reading
The case law of Court on individual standing for review of legality of measures of general application has faced criticism over the years for being too strict. Applicants had to fulfill the conditions contained in the (in)famous Plaumann judgment: an act of general application had to affect ‘them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision’ (the Plaumann formula).
It has been very difficult for individuals who wish to challenge EU measures of general application to satisfy this test. Article 230 EC has now been amended with the entry into force of the Treaty of Lisbon.