By Koen Bovend’Eerdt
The Commission established OLAF (Office de Lutte Anti-Fraude), an administrative investigative service of the Commission, in 1999, in the wake of the fall of the Santer Commission, to strengthen the fight against illegal activities affecting the Union’s financial interests. One of the shortcomings in OLAF’s legal framework on the conduct of on-the-spot inspections, one of the service’s main investigative powers, is that it refers back to national law at various instances, requiring OLAF to cooperate with national authorities which operate on the basis of national law. A question that has lingered in academic circles for some time is when precisely – and to what extent – national law applies. In the recent Sigma Orionis case the General Court shed light on this issue. The General Court’s solution has been embraced by the Commission in its recently published proposal to amend the rules which govern OLAF’s investigations. The Commission´s proposal, as a result of the Court´s judgment, places OLAF shoulder to shoulder with other Union bodies – at least when it comes to the applicable law – in the business of enforcing Union law by means of inspections. Continue reading
Limits to EU Powers: A Case Study of EU Regulatory Criminal Law by Jacob Oberg (Hart Publishing 2017, ISBN 9781509903368) £64.99
By Christopher Harding
In these days of burgeoning specialist discussion and publication of what is now firmly embedded under the title ‘EU criminal law’, Jacob Oberg’s book stands out as a distinctive contribution to the debates, with some real potential to drive forward policy and law. Broadly speaking, this work presents a strategy for a project which is in some respects bold and inventive – the legal (and hence constitutional) testing of policies and legal measures of criminalisation. And here we are talking about criminalisation in a novel and different context, that of EU policy and law. It is also a response to the significant, but still unheralded and poorly appreciated entry of the EU into that domain. So there is a real need for outward looking and engaging accounts of a subject on which debate is still really confined to a small quarter. Continue reading
By Laurens Ankersmit
In a significant win for access to justice in environmental matters, the Court’s Grand Chamber found that Article 47 of the Charter of Fundamental Rights (the right to an effective remedy), read together with the Aarhus Convention, precluded the application of national procedural rules allowing for swift decision-making at the expense of rights granted to environmental NGOs. The case’s procedural history is very complex (the Advocate General referred to it as either Kafkaesque or tilting windmills like Don Quixote, depending on your point of view), so after only a brief factual discussion I will focus on the two major constitutional issues that the Court had to deal with:
- The legal effects of the Aarhus Convention in the EU legal order;
- The meaning of Article 47 of the Charter of Fundamental Rights (CFR).
By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf
The opinion of AG Mengozzi in the case of X and X v. Belgium, so far only available in French, has created quite a stir throughout the European Union. In a nutshell, the AG found that, when third country nationals apply for a visa with limited territorial validity (‘LTV’) under Article 25 of the Visa Code with the aim of applying for international protection once they have arrived in a Member State’s territory, the Member State’s immigration authority should take the circumstances of the applicant into account and assess whether a refusal would lead to an infringement of the applicant’s rights as protected by the Charter of Fundamental Rights. Although the AG makes an effort to cover all the arguments brought up by the parties, this blogpost focuses mainly on the issues directly related to the margin of discretion left to the Member States by Article 25(1) of the Visa Code. Continue reading
By Hans Vedder
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
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
As part of recent Spanish measures to reduce public expenses and increase public income, the Spanish Ley 10/2012 substantially raises judicial fees (a “tasa judicial” is a fee charged when citizens access certain judicial services), a move that has generated a great deal of protests by judges, lawyers and citizens alike. Under the new system, a simple European order for payment procedure will cost 100 euro, and an appeal before the labour courts will now cost between 500 and 10,500 euro, depending on the amount at stake.
The Government of Catalonia has announced that it will challenge the constitutionality of the Ley, on the basis that it is contrary to Article 24 of the Spanish Constitution, which guarantees effective judicial protection. However, in the absence of a system to preventively suspend the application of national laws during unconstitutionality procedures, judicial fees must be paid at the higher rate until the Constitutional Court decides the issue. And here is where European Law may come to the rescue. If the new judicial fees could be considered so high as to clash with the principles of effectiveness and equivalence, EU law would become a useful tool to declare the fees inapplicable. Continue reading
The Rewe/Comet doctrine establishes that in the absence Union rules on procedural law, it is the responsibility of the Member States’ legal systems to provide for remedies stemming from EU law subject to the principle of effectiveness (national procedural rules may not make it impossible to exercise EU rights) and equivalence (national procedural law may not discriminate between EU remedies and similar domestic actions). This doctrine was developed out of the duty of loyal cooperation (article 4 (3) TEU). Of course, as European integration continues, procedural law gets harmonised more and more. So what happens if there are EU rules on procedural law, but those rules have not fully been harmonised? How does the duty of loyal cooperation affect the interpretation of those rules? In C-415/10 Meister the Court held that the duty of loyal cooperation requires, not surprisingly, national courts to make sure that in applying national procedural law the achievement of the objectives of secondary EU law are not compromised.
Ms Meister, a Russian national and systems engineer, applied for a job as ‘experienced software developer’ at a company called Speech Design. She was rejected twice (the job ad was published again after Ms Meister was turned down the first time) by Speech Design without letting her know the grounds for which she was unsuccessful in her application. Ms Meister subsequently brought an action for damages because she believed that she was being discriminated against on grounds of her sex, age and ethnic origin. The question was whether EU law (Directives 2000/43 on equal treatment on the basis of ethnicity, 2000/78 on equal treatment in employment and 2006/54 on equal treatment on grounds of sex in matters of employment) required the employer to disclose information on the grounds of refusal if a candidate demonstrates she meets the requirements listed in the job ad.
In a grand chamber judgment in case C‑209/10, Post Danmark, the European Court of Justice (ECJ) handed down a preliminary ruling on the interpretation of abuse of a dominant position (Art. 102 TFEU). The case was referred to the ECJ by a Danish judge in a dispute between Post Danmark and Konkurrencerådet, the Danish competition authority.
I have three remarks concerning this judgment:
- first, it seems to me that the ECJ does not embrace the average incremental costs instead of average variable costs as the relevant economic parameter for analysing a per se abuse;
- secondly, the ECJ requires the Danish judge to apply the as-efficient-competitor-test and seems to take it further than a mere price/cost-test to decide on the question whether the pricing practices of Post Danmark were anti-competitive in effect; he must take into account all relevant circumstances;
- lastly, when the Danish judge takes into account all those circumstances, it seems that the ECJ prescribes an ex nunc appreciation, which might be a restriction of procedural autonomy.
In the Danish market for the distribution of unaddressed mail (direct mail of brochures, guides, newspapers, etc.) the two largest players are Post Danmark and Forbruger-Kontakt (FK). This market is fully liberalised. Next to that, Post Danmark is the universal postal service provider. It uses its distribution network for both the universal postal service and the distribution of unaddressed mail. In 2003, in the Danish market for the distribution of unaddressed mail Post Danmark had a market share of 44 % which increased to 55 % in 2004. According to the Danish competition authority Post Danmark held a dominant position in that market because of such high market shares and because it could maintain its distribution network covering the whole country because of it being the universal postal service provider, regardless of its activities on the market for unaddressed mail.