Case E-16/11 ESA/Iceland: It might be called a lifejacket, but it doesn’t mean it’s built for emergencies

Directive 94/19/EC on deposit-guarantee schemes, which has also been transposed into EEA law, obliges EU and EEA EFTA states to create deposit-guarantee schemes. Deposit-guarantee schemes reimburse a limited amount of deposits to depositors where their bank has failed. The purpose is to protect a part of depositors’ wealth from bank failures, and thus to prevent depositors from making panic withdrawals from their bank with potentially dire economic consequences. In the present case, the EFTA Court was confronted with an action by the EFTA Surveillance Authority against Iceland. The Authority claimed that Iceland had violated the transposed Directive and thus EEA law in the aftermath of its major economic crisis and collapse of the banking sector in 2008, by failing to ensure that British and Dutch depositors using the famous ‘Icesave’ accounts offered by Icelandic banks received the minimum amount of compensation set out in Article 7(1) of the Directive. In a rather surprising decision handed down on Monday this week, the Court interpreted the Directive very narrowly, effectively finding that Iceland had not failed to comply with its obligations under EEA law.Continue reading

POMFR: Greening EU Competition Law and Policy

Is EU competition law ‘special’? Should it be insulated from other EU policies? Should we Europeans follow the neoliberal teachings of Chicago scholars like Bork who claim that American antitrust policy ‘cannot properly be guided any goal other than consumer welfare’ and that ‘distribution of (…) wealth or the accomplishment of noneconomic goals are the proper subjects of other laws’?   These questions are particularly relevant to EU environmental policy, where we have seen an increase in reliance on market based instruments (the emissions trading scheme for instance). The central argument of Suzanne Kingston’s new book ‘Greening EU Competition Law and Policy’ is that EU competition law is not special and that it should take greater account of EU environmental policy and goals.

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The Leipzig-Halle judgment of the CJEU: is the financing of a transport infrastructure an economic activity subject to State aid rules?

Leipzig-HalleThe financing and construction of transport infrastructure has often been considered in the past to fall outside the ambit of State aid rules, on the basis that it constituted a public interest task and not an economic activity. The Commission’s 1994 Aviation guidelines for example reflected this view by stating that “the construction or enlargement of infrastructures projects (such as airports, motorways, bridges, etc.) represents a general measure of economic policy which cannot be controlled by the Commission under the Treaty rules on State aid”.

This reasoning was, however, invalidated by the General Court in its Aéroports de Paris judgment of 12 December 2000 (T-128/98, confirmed on appeal by the Court in case C-82/01 P), which clarified that the operation of an airport constitutes an economic activity, although the case concerned Article 102 TFEU and rules on predatory pricing. Since then, the Commission has thus followed the Court’s approach, but has recognised that due to the legitimate expectation that may have been created, the financing of infrastructure granted before the date of the judgment in Aéroports de Paris should not lead to the recovery of the possible State aid involved.

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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

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