As is becoming a tradition with our blog (albeit a bit late this year), we present to you our top 10 most read posts of the last year. We have had another good year of blogging behind us: more readers contributing to the content of the blog with 33 posters coming from approximately 14 different countries this year. Equally important is that readership is steadily increasing according to Google Analytics (plus: we now have almost 1600 email subscribers and 2400 followers on twitter). Most of you are from the UK, followed by the Netherlands, Belgium, Germany, the United States, Italy, Sweden, France, Ireland and Poland, respectively.
Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2015 list of most read posts of the year: Continue reading →
The present contribution is a translated and somewhat simplified version of an article that appeared in German on 23 March 2015 in the Swiss legal online-journal Jusletter. The authors thank the Jusletter for their kind permission to republish the article and Markus Kern and the European Law Blog’s editorial team for valuable comments on earlier versions.
Readers of this blog will nearly inevitably already have been confronted with this decision. The reactions to the Court’s Opinion have been vivid, to say the least. What did the Court say exactly on this draft agreement for accession to the ECHR? And is the current predominantly negative reaction (see for an exception here) justified? The main aim of the present post is to provide a concise summary of the Court’s findings, but also to provide some early assessment and criticism of the reactions on particular points. After a brief historical introduction to the context of the Opinion, we follow the sequence of analysis of the Court and thus examine in turn:
the arguments of the Court on the autonomy of the EU legal order;
the monopoly on dispute settlement established by Article 344 TFEU;
the co-respondent mechanism;
the procedure for the prior involvement of the CJEU and the specific characteristics of EU law concerning judicial review in matters of the Common Foreign and Security Policy (CFSP).
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 →
Should EU secondary legislation be reviewed against the benchmark of the provisions of an international agreement? In 2012 the General Court answered this question in the affirmative and annulled two decisions of the Commission which were based on a regulation which was deemed incompatible with the Aarhus Convention. However, the EU institutions appealed against those judgments. Consequently, in cases C‑401 to 403/12, Council e.a. v. Vereniging Milieudefensie and C-404 and 405/12, Council v. Stichting Natuur en Milieu e.a., the Grand Chamber of the Court was confronted with the same question. There is already quite some case law on the topic of review of legality within the EU legal order in light of international obligations of the EU, typically with the Court being hesitant to undertake such review. In the cases involving the Vereniging Milieudefensie and the Stichting Natuur en Milieu, the General Court and the Advocate General made, in my view, some valuable suggestions in favour of reviewing EU law against international agreements. Unfortunately, the Court decided to stick to its guns, thus continuing in the line of its own previous jurisprudence, and annulled the General Court’s judgments. The result leaves a somewhat sour taste for those who think that EU institutions and their legal acts should be amenable to judicial review under reasonable conditions. Not only is the very purpose of the EU regulation at issue to implement the obligations arising from the Aarhus Convention, but the Grand Chamber’s view also leads to a lacuna in legal protection in EU law exactly where the central aim of the Aarhus Convention would in theory be to provide individuals with access to justice. Continue reading →
A perceptive follower of the development of the case-law on access to court and justice in general might have noticed that the less willing the Court of Justice to loosen up the constraints in regard of the locus standi for non-privileged applicants, the more generous it seems to be towards the actual acts which can be amenable to judicial review. Be it for the reasons of democracy and rule of law or for the broadening of its competences, it is apparent that the Court is following this path.
This post shall provide a concise view on one of such cases, namely the recent judgment of the Grand Chamber of the Court of Justice in case C-261/13 P Schönberger v Parliament, where the Court assessed the decisions adopted by the Petitions Committee of the European Parliament (Parliament), by which a petition is either found admissible and further processed or declared inadmissible, in view of the possibility to challenge such decisions before the EU Courts. Continue reading →
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 →
What is an ‘internal armed conflict’ in EU law? This was a question which the Belgian Conseil d’État referred to the Court of Justice of the European Union (CJEU), asking in essence whether this concept is to be understood as defined in international humanitarian law (IHL) or as a term with an independent meaning in the Union legal order.
On 30 January 2014, the CJEU gave its answer in the Diakité judgment, which concerns the granting of ‘subsidiary protection’ to third country nationals as well as stateless persons who seek refuge in the EU from such ‘internal armed conflicts’. By giving an autonomous meaning to the latter term in EU law, the CJEU has spoken up for a lower threshold for receiving such status throughout the 28 Member States. While this is, from a legal point of view, a highly interesting case with regard to the relationship between EU law and international law, it amounts, more practically speaking, to good news for all those in search of shelter from violence-ridden regions on a continent marked by an increasing reluctance to welcome foreigners (note most recently the successful Swiss referendum on limiting mass immigration). Continue reading →
In the landmark cases Kendrion, Gascogne and Gascogne Germany the CJEU clarified some important procedural issues related to infringements of the reasonable time requirement. The most important legal question that the CJEU tackled is what is the appropriate remedy for infringements of the right to have the case adjudicated within a reasonable time. The CJEU had two options: the first one was to follow the Baustahlgewebe judgment in which the CJEU had concluded that the proceedings were excessively lengthy and subsequently reduced the fine the Commission had imposed upon the undertakings. The second was to follow the Der Grüne Punkt judgment where the CJEU also concluded that there had been an infringement, but required instead a separate action for damages to be lodged before the General Court. Following this path would, however, mean that the General Court itself would have to assess whether, and to what extent, the parties suffered any harm due to the excessive length of proceedings. In the present cases, the CJEU has opted for the second solution.
The Grand Chamber today dismissed the appeal by the seal hunters to annul the basic regulation prohibiting the marketing of seal products on the EU internal market. As expected, the CJEU held that the seal hunters lacked standing to challenge a legislative act. This does not mean that the seal hunters will not prevail in the end (although I doubt it), as they have also challenged the Commission implementing Regulation, which will enable them to challenge the basic Regulation too (the decision of the GC in that case can be found here and my comments are here). What makes the judgment worth mentioning here though, is the more general relevance of the Grand Chamber’s interpretation of the concept of a ‘regulatory act’. This concept was introduced with the Lisbon Treaty and was intended to make it easier to challenge EU legal acts which were not of a legislative nature.
We have covered on this blog the remarkable Åkerberg Fransson decision (see here and here), in which the Court essentially held that the scope of application of EU fundamental rights was identical to that of the scope of application of EU law itself. The Texdata case – apart from some internal market law aspects we will subsequently cover as well – can mostly be seen as a confirmation of that case law. This is remarkable because the setting in the case is less contentious than in Åkerberg Fransson, but the Court seems to be willing to use already this early opportunity to confirm and emphasize that Åkerberg Fransson is the law and here to stay. The case concerns a requirement in Austrian company law which creates – based on Article 12 of Eleventh Council Directive 89/666/EEC – a system of automatic penalty payments for the failure of a capital company in another Member State with a branch in Austria to submit certain accounting documents within a nine-month period. The Court was called to examine the compatibility of this system with the Directive, with the freedom of establishment and with the principle of effective judicial protection and the rights of defence as enshrined in Articles 47 of the Charter of Fundamental Rights and 6 (2) of the European Convention on Human Rights.
While I cannot go into every detail of the case for the present post, I will first cover the scrutiny by the Court under the requirements of the Directive, which helps to understand the details of the Austrian regime of sanctions; I will then briefly address aspects of the freedom of establishment; and last but not least I will focus on the scope of fundamental rights review exercised by the Court. Continue reading →
In a second round of cases in Luxembourg, a number of seal hunters failed (yet again) to convince the General Court to annul the EU-wide ban on trade in seal products. In a nutshell, the seal hunters argued that the EU acted ultra vires by adopting the ban on the basis of article 114 TFEU (harmonization of rules for the establishment and functioning of the internal market). Moreover, the applicants argued that the ban violated their fundamental rights and the principles of subsidiarity and proportionality. According to the applicants, the EU-wide ban was not aimed at improving the functioning of the internal market, but rather at safeguarding the welfare of animals, an objective for which no legal basis exists within the EU Treaties.
In dismissing the arguments put forward by the seal hunters, the General Court made a number of interesting statements regarding the EU’s ability to severely restrict trade of an ‘exotic import’ (a product not made within the EU) within the EU’s internal market on grounds of protecting the welfare of animals living outside the EU. In this post I will focus on the competence issue by discussing the particularities of EU constitutional law and the (modest) challenge a ban on the sale of exotic imports such as seal products poses for EU legislative competence.
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 →
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.