The seal products cases (I): The notion of ‘regulatory act’ according to AG Kokott

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.

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Case E-18/11: Small steps towards a preliminary reference procedure for the EEA EFTA countries?

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

Increase of judicial fees in Spain: EU Law to the rescue?

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)[1], 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

At the Periphery of EU Citizenship: C-356/11 O, S and L

2013 is the European Year of Citizens and so we kick off the New Year with a discussion of one of the more contested aspects of EU citizenship, namely the right of (static) EU citizens to be accompanied by third country national (“TCN”) family members in their own Member State. Specifically, in joined cases C-356/11, C-357/11 O, S & L, decided on 6 December 2012, the Court was asked whether a TCN step-parent could derive a right of residence from the Union citizenship of his step-child

Situated at the interface between EU citizenship, immigration law and the fundamental right to family life, this issue has proved to be a vexing one for the Court of Justice.Continue reading

Top 10 most read posts of the year

As the end of the year is approaching many news sites, radio stations and other media usually make lists to summarize the year in numbers. Following this tradition I would like to list the posts that were most read by our readers (according to Google Analytics). This is of course not entirely fair to the most recent posts written, since they had less time to become popular among readers, but I think it is a fun exercise nonetheless. So here we go:

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The Advent of Gender Neutral Insurance Premiums

The date is December 21, 2012 (or, for our Mayan readers, 13.0.0.0.0) and the apocalypse has not materialized (Hooray for Earth!). December 21 will, however, be remembered for another transformative event, at least in so far as the European insurance industry is concerned.

Today, the CJEU’s controversial ruling in Test Achats will enter into force, signifying that insurers can no longer take sex into account when calculating insurance premiums. Gender neutral or “unisex” pricing must now be implemented across the industry.

On March 1, 2011, the Grand Chamber ruled that a provision which enabled States to maintain sex-specific insurance premiums, notwithstanding the rule on unisex insurance and benefits laid down in Directive 2004/113, was incompatible with the principle of sex equality, enshrined in Articles 21 and 23 of the Charter. The Court took the unusual step of delaying the entry into force of the judgment until the expiry of an “appropriate transitional period”, allowing insurance companies time to adjust to the ruling.Continue reading

Commission withdraws request for an Opinion on ACTA

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.

The Commission’s double role in competition law enforcement: the Otis case

CC from http://www.esbnycleasing.com/gallery_12.phtmlOn 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.

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