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
When is the Charter of Fundamental Rights of the EU applicable to a Member State measure? In C-446/12 – 449/12 Willems the CJEU held that a Member State which stores and uses fingerprint data, originally collected in compliance with Regulation No 2252/2004, but which the Member State then uses for purposes other than those stipulated in the Regulation, is not acting within the scope of EU law, and therefore is not bound by the Charter. This case appears to indicate a retreat by the Court from the expansive interpretation of the scope of application of the Charter which it had previously laid down in C-617/10 Fransson. Continue reading
By Sara Benedi Lahuerta
According to 2012 OECD data, 52% of EU adults are overweight or obese. It is thus not surprising that the recent decision of the Court of Justice of the European Union (CJEU) in Kaltoft (Case C-354/13), on whether obesity discrimination can amount to disability discrimination, has created quite a stir in the press. Following Advocate General (AG) Jääskinen’s Opinion, some media suggested that ‘Severe obesity is a disability’. As will be discussed in this post, the CJEU did not quite go as far as to accept that obesity is a disability, but it did recognise that, in some cases, differential treatment on the basis of obesity can amount to disability discrimination. Hence, this judgment marks another step forward towards clarifying the scope of EU equality law and bringing about a consistent application at national level.
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.
On July 18th, Advocate General Cruz Villalón delivered a fascinating opinion in a case that could very well keep quite a number of scholars interested in EU fundamental rights law busy for a while. In Association de Médiation Sociale not yet available in English as far as I can see) the Court is confronted with a set of fundamental questions. First, whether the workers’ right to information and consultation within the undertaking as enshrined in Article 27 of the Charter and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union can be applied in a legal dispute between two private parties, i.e. on its potential horizontal effect. Second, this also implies discussing – for the first time explicitly – the difference between rights and principles enshrined in Articles 51 (1) and 52 (5) of the EU Charter of Fundamental Rights. In particular, this requires shedding light on the notion of implementation of principles, as Article 52 (5) speaks of principles being ‘judicially cognisable’ only in the interpretation of their implementing acts and the ruling on their legality. Third, the act with which the Union implemented the principle in the present context is a directive, which again raises the question as to the limits to the effect of directives in a legal dispute between private parties, as has already caused problems in well-known cases like Mangold and Kücükdeveci. As the opinion is already quite comprehensive, I’ll keep my comments to the minimum to not try our readers’ patience.
On March 20, the Judicial Division of the Netherlands Council of State referred three cases concerning asylum seekers who claim to have been persecuted on account of their sexual orientation to the Court of Justice for a preliminary ruling. Pursuant to Article 10(1)(d) Qualification Directive, groups with a common characteristic of sexual orientation may fall within the ambit of the minimum level of protection afforded by European asylum law. However, during the initial procedure the asylum seekers concerned failed to convince the Dutch immigration service that they were gay and their application was subsequently denied.
On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.
The European Commission has decided to withdraw its request for an Opinion of the CJEU on the compatibility of ACTA with EU law, and more specifically the EU Charter of fundamental rights (the decision was allegedly taken on Wednesday’s meeting of the Commission, although we are still waiting for an official press release). As I reported earlier, the admissibility of the request was doubtful in any case. Nonetheless, this is a nice Christmas present from the Commission to the CJEU, which will not have to deal with this political hot potato anymore. Too bad for the academic world I guess; I was quite curious what the CJEU would make of the request.
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.
This Opinion of Advocate General Bot, given in response to a preliminary reference raised by the Spanish Tribunal Constitucional, gives interesting insights on the relation between national and EU fundamental rights standards, and gives an important interpretation on the ambiguous wording of Article 53 of the Charter on Fundamental Rights. AG Bot reaffirms the autonomous nature of the EU fundamental rights standard. He clearly rejects the idea that Article 53 entails that the Charter merely lays down a minimum standard of rights protection above which Member States would be free to apply a higher –national- standard of protection. However, he admits that a provision of secondary law may be challenged where it infringes national constitutional identity. Continue reading
Even if they may seem two – rather disconnected – areas of legal practice, reading cases on EU public procurement and on EU trademark law sometimes offers interesting insights into broader issues of EU economic law or, more generally, EU law. For instance, some recent case law on the duty to provide reasons under each of the specific adminsitrative procedures that govern contract tendering and trademark registration shows what, in my view, is rather a contradiction.
On the one hand, and as commented recently here, the General Court issued his Judgment in Sviluppo Globale GEIE v Commission where it imposed a very demanding standard for the duty to give reasons in procurement cases. Continue reading
The scope of EU fundamental rights protection and the influence of the Charter of Fundamental Rights on this scope is a much discussed topic among EU constitutional lawyers. As is well-known, the recognition of fundamental rights as part of the general principles of EU law by the Court is not new. Already in the cases of Stauder and Internationale Handelsgesellschaft, handed down in 1969 and 1974 respectively, the Court recognized fundamental rights as part of the general principles of EU law. It did so to anticipate challenges to the primacy of EU law by national constitutional courts and the Court therefore took great care in stressing the autonomous nature of EU fundamental rights protection. This means that the Court has maintained authority in determining the content of EU fundamental rights protection and thus remained the ultimate interpreter of EU law. However, before the coming into force of the Treaty of Lisbon, there was no EU catalogue of rights formally binding on the EU as such. Rather, the Court drew inspiration from international treaties and national constitutions, whilst at the same time maintaining the autonomy of the EU rights standard. With the coming into force of the Lisbon Treaty the Charter of Fundamental Rights has also become formally binding on the EU. This means there now is a binding catalogue of rights at the EU level.
A contentious issue is whether the Charter of Fundamental Rights alters the scope of the EU fundamental rights standard laid down in previous case-law of the Court. In its case law, the Court has held that fundamental rights recognized as general principles of EU law apply not only to the acts of the EU institutions but also to the acts of Member States in certain circumstances. Generally, Member States have to act in accordance with fundamental rights recognized at the EU level ‘whenever they act within the scope of EU law’. In the case-law of the Court this includes at least two situations. First, Member States are bound by the EU rights standard where the implement and enforce EU law. Second, the Member States are also bound by the EU rights standard where they derogate from EU law provisions (see cases such as Schmidberger, and ERT). However, when precisely a Member State acts within the ‘scope of EU law’ is not entirely clear. The dividing line between situations within the scope and those outside the scope of EU law often appears arbitrary, as was pointed by AG Sharpston in the case of Zambrano.
The case of G/Cornelius de Visser (C-292/10) resembles the Lindner case (C-327/10), on which we reported earlier. The case involves numerous issues, some of which will be dealt with in this post. The factual background of the case simply cannot pass unmentioned. A German girl, Ms G, approached the owner (Mr de Visser) of the domain name www.****.de (I call upon the reader’s imagination here) to show her interest in having photographs taken of herself (their intended use being ‘für eine Party’). The photographs were duly made in Germany and Ms G agreed that they would be published. However, her consent was strictly limited to the pictures being used ‘for a party’, and did not include widespread distribution online.
Taunted by co-workers as she was (according to the judgment she was ‘shown the photographs (…) by work colleagues’), she initiated proceedings in Germany against De Visser. Mr de Visser was registered as owner of the domain with an address in Terneuzen and a postal address in Venlo (both in the Netherlands). It had not, however, been possible to effect service at those addresses in the Netherlands, since both letters were returned marked ‘Unknown at this address’. The Consulate of the Netherlands in Munich stated, on request, that Mr de Visser was not listed in any population register in the Netherlands. To sum up, as was the case in Lindner, the defendant was nowhere to be found. Since both the Hague Convention on the service of documents 1965 and the EU Service Regulation are inapplicable in the case of a defendant with unknown address, the German judge resorted to public notice of the document under German procedural law. This was done by affixing a notice of that service to the bulletin board of the Landgericht Regensburg from 11 February to 15 March 2010. Could this be deemed in conformity with Article 6 ECHR and Article 47 Charter of Fundamental Rights of the EU? The Court held: Continue reading
Section 4 of the Brussels I Regulation (Regulation 44/2001/EC) contains special rules of jurisdiction over consumer contracts, generally designed to protect the weaker party (i.e. the consumer). According to Article 16 (2), the professional party may sue the consumer only in the courts of the Member State where the consumer is domiciled. Does this provision also apply to consumers who left their last known domicile and are simply nowhere to be found? Does the Brussels I Regulation preclude the use of provisions of national law which enable proceedings to be brought against persons of unknown address? These, essentially, were the questions referred to the Court in the case of mr Lindner (C-327/10). A Czech bank brought proceedings in the Czech republic against Lindner, a German national. It appeared Lindner had left his last known domicile in the Czech republic before the proceedings against him were brought. The Czech courts tried to track him down, to no avail. The court held:
55 – (…) in a situation such as that in the main proceedings, in which a consumer who is a party to a long-term mortgage loan contract, which includes the obligation to inform the other party to the contract of any change of address, renounces his domicile before proceedings against him for breach of his contractual obligations are brought, the courts of the Member State in which the consumer had his last known domicile have jurisdiction, pursuant to Article 16(2) of that regulation, to deal with proceedings in the case where they have been unable to determine, pursuant to Article 59 of that regulation, the defendant’s current domicile and also have no firm evidence allowing them to conclude that the defendant is in fact domiciled outside the European Union;
– that regulation does not preclude the application of a provision of national procedural law of a Member State which, with a view to avoiding situations of denial of justice, enables proceedings to be brought against, and in the absence of, a person whose domicile is unknown, if the court seised of the matter is satisfied, before giving a ruling in those proceedings, that all investigations required by the principles of diligence and good faith have been undertaken with a view to tracing the defendant.
Today Commissioner Karel de Gucht announced that the Commission will request the opinion (pursuant article 218 (11) TFEU) of the Court on the compatibility of ACTA with the Treaties and the Charter of Fundamental Rights in particular. The Commisioner stated that
We are planning to ask Europe’s highest court to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.
(…) But let me be very clear: I share people’s concern for these fundamental freedoms. I welcome that people have voiced their concerns so actively – especially over the freedom of the internet. And I also understand that there is uncertainty on what ACTA will really mean for these key issues at the end of the day.
So I believe that putting ACTA before the European Court of Justice is a needed step. This debate must be based upon facts and not upon the misinformation or rumour that has dominated social media sites and blogs in recent weeks.
As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world.
More on ACTA can be found here, here and here.