15 October 2014/
By Dimitrios Kyriazis
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By Dimitrios Kyriazis
Oddly enough, state aid has recently been making headlines. In June, the Commission decided to open three in-depth investigations into tax rulings issued by Ireland, Luxembourg and the Netherlands in relation to Apple, Fiat and Starbucks respectively. In October, the Commission announced that it will also be examining whether the tax treatment of Amazon by Luxembourg is in line with EU state aid rules. These decisions are the spearhead of a recent clampdown on sweetheart tax deals between Member States and big multinationals that Commissioner Almunia says will ensure that they pay “their fair share of taxes”.
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3 October 2014/
By Johan Callewaert
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By Johan Callewaert
On 2 October 2013, the Committee of Ministers of the Council of Europe opened for signature Protocol no. 16 to the European Convention on Human Rights. This new Protocol, which has been referred to as the “Protocol of the dialogue” by Dean Spielmann, the President of the European Court of Human Rights (ECtHR), creates the possibility for supreme courts of the Contracting States to the Convention to request an advisory opinion from the ECtHR on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”[1].
Even though the material scope of Protocol no. 16 is clearly confined to the Convention and its protocols, some concerns have been expressed in the recent past, notably at the recent hearing held by the ECJ on the draft agreement on EU Accession to the Convention (“DAA”), that the use of this new instrument of consultation by courts of the EU Member States might be problematic from the point of view of EU law. More specifically, the question was raised in this context whether Protocol no. 16 would not threaten the autonomy of EU law and the monopoly of the ECJ on the interpretation of EU law, by allowing supreme courts of the Member States to engage in a kind of “forum shopping” between the Luxembourg and Strasbourg courts. This contribution purports to demonstrate that those concerns are unjustified and should not be allowed to undermine the further development of the Convention system initiated by Protocol no. 16.Continue reading
25 September 2014/
By Magdalena Jozwiak
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By Magdalena Jozwiak
Parody is one of the limitations on copyright, contained in Article 5(3)(k) of the InfoSoc Directive (‘the Directive’). The list of limitations in Article 5 of the Directive is optional, meaning that the Member States are free to decide which of the limitations from the list they will implement into their national laws. The judgment in Deckmyn v. Vandersteen, issued on September 3rd, is about the concept of parody in the EU copyright law and it is meant to clarify two issues: the scope of harmonization of the parody limitation in the Directive and the criteria to be looked at when applying this limitation. The potential impact of the judgment, however, goes well beyond the pure sphere of copyright: at stake here was also the issue of balancing of the fundamental rights, in particular the balance between copyright and freedom of speech. The Advocate General went further than the Court and also looked at the conflict between the right of ‘human dignity’ (para. 82 of the Opinion) or ‘deepest convictions of European society’ (para. 85 of the Opinion) and the freedom of speech. Unfortunately, the brevity with which the CJEU addressed the most controversial aspects of this case, leaves many questions unanswered.Continue reading
23 September 2014/
By Hans Vedder
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By Hans Vedder
The Court has recently decided on the appeals in two seminal cases: MasterCard MIF (MasterCard) and Groupement des Cartes Bancaires (CB). Both cases result from Commission decisions that found Article 101 TFEU to have been infringed by the decisions taken within those schemes with regard to fees that form part of the working of these payment systems. To understand both cases it is necessary to first set out the background to the MasterCard and CB systems. After that we will examine the procedure and finally the judgments themselves. This will reveal essentially three interesting issues:
- the object-effect dichotomy,
- the relation between the exclusion of competitors and the object category, and
- the possibility to take into account redeeming features.
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22 September 2014/
By Johan Vannerom
By Johan Vannerom
In the field of EU B-2-C Commercial Practices, Belgium is a hard learner. Although the Belgian trade practices legislation has already been under investigation several times and has even been declared incompatible with the Unfair Commercial Practices Directive (Directive 2005/29/EC) by the EU Court of Justice (e.g. Pelckmans Turnhout NV against Walter Van Gastel Balen NV a.o.; WAMO BVBA against JBC NV and Modemakers Fashion NV; VTB-VAB against Total Belgium, and Galatea against Sanoma Magazines), the Belgian legislator nonetheless ‘maintained’ certain strict rules. For instance, the Belgian Law of 6 April 2010 on commercial practices, consumer information and consumer protection (‘LPMC’) still excludes certain professions from its scope of application and includes strict rules on discount prices and on the organization of travelling trading and fairground activities.
Not surprisingly, the European Commission decided to challenge the aforementioned rules and bring an action for failure to fulfil obligations under Article 258 TFEU against Belgium. In this short contribution, I will discuss the judgment of the EU Court of Justice (‘CJEU’) following the aforementioned action. This judgment does not only have an impact on current Belgian trade practices legislation – the LPMC was abolished and replaced by Book VI of the (recently adopted) Belgian Code of Economic Law –, but also contains lessons for other EU Member States.
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15 September 2014/
By Niovi Vavoula
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By Niovi Vavoula
Directive 2008/115/EC on the returns of irregular migrants (or, less neutrally, ‘illegally staying third-country nationals’) has been the subject of fierce criticism and not without good reasons. In an attempt to make the legal framework clearer, the Court of Justice of the European Union (CJEU) has been called to interpret its provisions on numerous occasions (such as Kadzoev, El Dridi, and Achughbabian). In particular, with regard to Article 15 on the detention of irregular migrants prior to their removal the Court has so far explained how the period of detention should be calculated and when there is a ‘reasonable prospect of removal’ (Kadzoev); it has precluded the incarceration of irregular migrants during the return process on the sole ground that they remain on the territory of a Member State even though an order to leave exists (El Dridi), and it has attempted to strike a balance between the right to be heard and the efficiency of the administrative procedure to extend the period of detention (G & R).
In the past few months one has witnessed the re-emergence of the issue of pre-removal detention. The judgment in the case of Mr. Mahdi, released on the 5th June 2014 by the Third Chamber, is central in this regard and raises mixed feelings. On the one hand, the Court provides the national authorities with important guidelines with a view to ensuring –at least to a certain extent- the right of irregular migrants to effective remedies. On the other hand, it seems to lack inspiration when dealing with harder questions that require a constructive approach beyond the mere replication of the provisions of the Directive.Continue reading
