Compensation of passengers for delayed flights – AG confirms Sturgeon case

As a firm blow to airlines trying to dodge the Sturgeon decision, AG Bot’s opinion in the joined cases C-581/10 and C-629/10 has already been called a ‘Luxembourgian punch on the nose’ and ‘a kick in the Bot’. In his opinion, AG Bot essentially advises the Court to confirm its earlier Sturgeon decision (Cases C-402/07 and C-432/07). The cases concern the interpretation of Articles 5, 6 and 7 of Regulation 261/2004 on air passengers compensation. Although frequently named the ‘Denied-boarding’ Regulation, the Court ruled in Sturgeon that passengers whose flights are delayed may also rely on the right to compensation laid down in Article 7 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours (paragraph 61 of Sturgeon). Not surprisingly, airlines have since argued that the ruling in Sturgeon is contrary to the principles of legal certainty and proportionality, and, moreover, that it is inconsistent with both the 2006 IATA ruling and the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (ratified by the EC).

To be fair, the wording of the Regulation does not directly provide for the compensation right to passengers whose flights are delayed. In that sense, as indeed the airlines argue, the Court has taken a bold step in Sturgeon and has maybe, in interpreting the Regulation beyond its literal wording, overstepped its powers. AG Bot, however, doesn’t see any reason for the Court to deviate from its approach in Sturgeon and states that nothing new which might call into question the interpretation that the Court gave in Sturgeon has been presented (point 39). The AG notes that the disputes in these cases show that air carriers refuse to apply that judgment and to compensate passengers finding themselves in such situations (i.e. situations of delay instead of cancellation or denied-boarding). The AG takes the view that Articles 5, 6 and 7 of the Regulation (as interpreted in Sturgeon) are compatible with the IATA ruling, with the Montreal Convention, with the principle of proportionality and with the principle of legal certainty (point 29-49 and 67).

Meanwhile, the Attorney General (AG) at the Dutch Hoge Raad (Supreme Court of the Netherlands) has delivered his opinion (in Dutch) in several cases pending before the Supreme Court concerning compensation under Art. 7 for delayed flights. The opinion was delivered exactly four days before AG Bot’s opinion but follows the same pattern. The AG rejected all of the airlines’ arguments against the Sturgeon ruling..

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Fair-trade coffee and tea under the procurement directive

Can public authorities procure fair trade products, or are they debarred from specifically referring to the fair trade qualities of those products under the public procurement directive (directive 2004/18/EC)? This is one of the issues underlying the judgment of the Court in Case C-368/10 Commission v. Netherlands.

In 2008, the Dutch province of North Holland announced in a tendering procedure that it wished to procure coffee machines and the products necessary to make them function (coffee, tea, sugar, milk, cups). It required that those products to be delivered to bear the Max Havelaar label, a private label that adheres to the rules of the Fairtrade Labelling Organisation. Considering that this tender was contrary to the public procurement directive (2004/18/EC) the Commission started an infringement procedure against the Netherlands.

Obviously, specifically requiring products to bear only that label is contrary to EU public procurement law, as it is way too over specific and does not allow for any form of competition for the contract. However, the Court made – for the first time – some interesting points on procuring fair trade products in general.

The two points I will discuss are:

  • Fair trade requirements to products cannot be part of technical specifications but are conditions relating to the performance of the contract;
  •  Fair trade criteria can be used as award criteria for public supply contracts.

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Religious prosecution in the Qualification Directive: the ‘core’ of fundamental rights as a core business of EU asylum law?

In his recent Opinion in Cases C-71/11 and C-99/11 Advocate General Bot held that a serious infringement of the freedom of religion may constitute an ‘act of persecution’ where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom, runs a real risk of being deprived of his most fundamental rights. This is an important case for the application of fundamental rights in asylum context. The AG seems to be aware of this considering the extensive elaboration on the matter. Nevertheless, the Opinion of the AG is not very satisfying, mainly because the interpretation based on the European Court of Human Rights (hereafter: ECHR) case law, does not seem very consistent.

The cases concerned a reference for a preliminary ruling by the German Bundesverwaltungsgericht (Federal Administrative Court). The applicants in the main proceedings were Pakistani nationals who entered Germany and applied for asylum on religious grounds. They stated that because they exercised their faith as members of the Ahmadiyyah (a minority community that adheres to the Ahmadiyyah, long contested by the Sunni Muslim majority in Pakistan), they would be prosecuted and therefore should be recognized as refugees. The lower German Court had decided that the freedom of religion entails amongst others the right to exercise and demonstrate faith in public and that the restrictions on the exercise of faith in Pakistan represent a grave violation of the freedom of religion for a devout Ahmadi. The Bundesverwaltungsgericht decided to refer questions, in which it asked the Court of Justice to set out the circumstances in which an infringement of the freedom of religion, and in particular of the right of an individual to live his faith freely and openly, may constitute an ‘act of persecution’ within the meaning of Directive 2004/83/EC.[1]

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C-406/10 SAS Institute v. World Programming Ltd (WPL)

The ECJ issued an important ruling last week regarding how far copyright protection for software should extend.

The case involves two software development companies: SAS and WPL. SAS Institute developed a set of computer programs used for data analysis (the ‘SAS System’) that allows users to write and run their own Scripts in an SAS-specific programming language (para. 24).

WPL developed a competing program called the World Programming System that sought to emulate the SAS System as close as possible. In the process, it obtained a license to the “Learning Edition” of the SAS program and manuals, which it studied, but did not access or copy the SAS source code. The World Programming System is written in the SAS Language, and is designed to allow the use of Scripts originally written for the SAS System (para. 25)…

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Jurisdiction in cases of Google AdWord Trademark infringement

Another episode in the line of cases before the Court concerning Google AdWords. The Intellectual Property battle over the use of trademarks as keywords for the purpose of triggering advertisements on Google’s search result pages can be seen in the cases (most notably) C-236-238/08 Google/Louis Vuitton, C-558/08 Portakabin, C-324/09 L’Oréal/eBay and C-323/09 Interflora. The recently handed down judgment in the case Wintersteiger (C-523/10) however, concerns the interpretation of the notion ‘place where the harmful event occurred or may occur’ in Article 5(3) Brussels I Regulation in cases of alleged Trademark infringement through registration of a Google AdWord.

An Austrian company, Wintersteiger, initiated proceedings in Austria for infringement of its Austrian Trademark ‘Wintersteiger’ by a German company, Products 4U. Products 4U had reserved the Trademark  ‘Wintersteiger’ as Google Adword for Google’s German top-level domain (www.google.de). Wintersteiger argued that the Austrian judge could assume jurisdiction under Article 5(3) since the website google.de is also accessible in Austria. On appeal, the Austrian Oberster Gerichtshof (OGH) asked the Court which criteria are to be used to determine jurisdiction under Article 5(3) to hear an action relating to an alleged infringement of a trademark through the use of a Google AdWord on the website operating under a top-level domain different from that of the Member State where the trademark is registered…

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What can the EU do about Argentina’s Expropriation of Spanish Investments?

Argentina made headlines last week with its plan to nationalize oil company YPF. The decision to expropriate 51% of the shares in YPF hydrocarbons corporation–eliminating the controlling stake of Spanish firm Repsol–was announced on 16 April, and was accompanied by a takeover of the company’s office by Argentine authorities.

In response, Repsol has announced its intent to pursue an expropriation claim, and Spain has taken retaliatory measures, seeking to restrict imports of biodiesel fuel from Argentina.

The EU has made clear its displeasure with Argentina and its intent to support Spain. But given that this is an investment case that legally falls primarily under the Spain-Argentina bilateral investment treaty (BIT), what role can the EU play?

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Case C-571/10 Kamberaj: the Charter and not the ECHR has effect in Member States’ legal orders

In a grand chamber judgment on Tuesday (case C-571/10 Kamberaj), the Court dealt with some fun and intriguing aspects of EU law, which relate to the relationship between the ECHR, EU law and national law on social security matters.

Mr Kamberaj, an Albanian national with a residence permit for an indefinite period in Italy, was denied certain housing benefits because the funds for those benefits were exhausted. Mr Kambery was of the opinion that this resulted in discriminatory treatment between him, a third country national, and Union citizens since the funding of those housing benefits was split in two categories namely Union citizens and third country nationals and only the funds for the latter category were exhausted.

There are two interesting aspects of EU law in this case:

  • Firstly, the relationship between the EU legal order and the national legal order with respect to the ECHR;
  • and secondly, the interpretation of Directive 2003/109/EC on the status of third country nationals and its implications for national social security systems.

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The burden of proof in cases of discrimination during recruitment

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.

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