Defamation in the digital age

Last October, the grand chamber of the Court ruled in the joined cases of eDate and Martinez (C-509/09 and C-161/10) on the interpretation of Article 5(3) of the Brussels I Regulation (Regulation 44/2001/EC) in cases of alleged infringement of personality rights by means of content placed on an internet website. Article 5(3) grants jurisdiction to the court of the place where the harmful event occurred or may occur.

In earlier case law, Fiona Shevill, the Court had held that in case of defamation by means of a newspaper article distributed in several Member States, Article 5(3) must be interpreted as giving the victim a choice between fora. Firstly, the victim may bring the action before the courts of the Member State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation. Secondly and alternatively, the victim may bring the action before the courts of each Member State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, and which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised (paragraph 33 of Shevill). Could these criteria be applied in cases where the defamatory content was published on the internet?

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Eco-imperialism? The Court’s ATAA-judgment

Delivered on the 21st of December last year, the Court’s ATAA-judgment (Case C-366/10, The Air Transport Association of America) was a nice Christmas present for EU policy makers, environmentalists, and everyone who takes climate change seriously. The judgment did, however, also provoke some very unchristmaslike responses, enraging all of the EU’s major trading partners (see previous post by J C Lawrence).

What was all the fuss about?

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ICJ Decides Immunities Case

Lest we, in our enthusiasm for EU law, lose sight of the fact that the Member States are still sovereign entities with their own responsibilities under international law, the ICJ’s decision in theJurisdictional Immunities of the State case should prove a good reminder.

The case, brought by Germany against Italy in December 2008 (with Greece intervening), involves a series of civil judgments under Italian law finding Germany liable for damages as a result of serious human rights violations that took place during WWII. These judgments were spurred by the Italian Corte di Cassazione’s decision in the 2004 Ferrini case, which held that Italian courts could hear such claims despite Germany’s assertion of state sovereign immunity. Additionally, Italian courts found that Italy could enforce a Greek judgment involving atrocities committed in the village of Distomo by German troops in 1940 that had been held unenforceable on the grounds of State immunity by both Greek Courts and the European Court of Human Rights.

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EU Emissions Trading Scheme for Airlines Moving Forward

The next step in the ongoing saga of applying the EU Emissions Trading Scheme (EU ETS) to the airline industry came this week, as the European Commission partially activated the Single Union Registry for aircraft.

All aircraft operators subject to the EU ETS will be required to open accounts in the registry, through which they will receive permits and report their annual emissions. The first batch of allowances will be credited to each aircraft operator by 28 February 2012, with the first reporting requirement due by March 2013.

A number of third countries continue to resist the extension of the EU ETS to airlines, and it remains to be seen whether they or their airline industries will follow through on threats not to comply with the EU’s new rules. Stay tuned!

Stem cell research in Brüstle

Who would have thought 60 years ago that the Court of Justice would rule on matters of life and death? In Brüstle (Case C-34/10, Brüstle v. Greenpeace) the Court had to answer questions about the patentability of stem cells derived from human embryos for medical applications (Parkinson’s disease). A German Court had made a preliminary reference to the Court in a procedure between Brüstle and Greenpeace on the interpretation of Directive 98/44/EC.

The Court was pretty cautious in its approach:

 34      The context and aim of the Directive thus show that the European Union legislature intended to exclude any possibility of patentability where respect for human dignity could thereby be affected. It follows that the concept of ‘human embryo’ within the meaning of Article 6(2)(c) of the Directive must be understood in a wide sense.

35      Accordingly, any human ovum must, as soon as fertilised, be regarded as a ‘human embryo’ within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, since that fertilisation is such as to commence the process of development of a human being.

This led the Court to decide that Mr Brüstle research could not be patented: not in Germany, nor in the rest of the EU. Not surprisingly, scientists in the EU are not very happy about the outcome.

Public procurement: are Fair Trade products different from Eco-products?

According to Advocate General Kokott they are. Public authorities wishing to procure such products should do so in accordance with article 23 of the public procurement directive (Directive 2004/18/EC) for Eco-products and in accordance with article 26 for Fair Trade products.

But does her reasoning make sense? Check out her logic in her Opinion in Case C-368/10 Commission v. Netherlands (sorry no English translation available!):

 77.      Comme nous l’avons déjà mentionné, conformément à son annexe VI, point 1, sous b), il convient d’entendre par des spécifications techniques au sens de la directive 2004/18 des spécifications figurant dans un document décrivant les caractéristiques requises d’un produit. Il doit donc s’agir d’indications qui décrivent les propriétés d’un produit. Cette analyse se trouve confirmée par l’énumération faite à l’annexe VI, point 1, sous b), de la directive 2004/18: les exemples de spécifications techniques y cités concernent tous le produit lui-même, sa fabrication, son emballage et son utilisation.

78.      Le label «Max Havelaar», en revanche, ne s’intéresse pas aux caractéristiques des produits, mais aux conditions commerciales accordées aux producteurs de produits agricoles dans les pays en voie de développement. Le label ne fournit aucune information sur les propriétés du produit, mais indique si les transactions dont il a fait l’objet étaient équitables, en particulier en ce qui concerne les prix et conditions accordés aux agriculteurs concernés.

What about Eco-products differentiating on the basis of the production process? Or certain ethical products, such as halal or kosher meat?

Mutual confidence in Case C-411/10 N.S. v. Secretary of State

The principle of mutual confidence is a fundamental aspect of EU law. It implies that Member States should have trust in one another when implementing EU law. So, in Hedley Lomas (Case C-5/94, The Queen v Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd.) the United Kingdom could not prohibit the export of live sheep to Spain because it did not trust the Spanish authorities in applying EU rules on animal welfare. The only thing the UK was allowed to do was either to start an infringement procedure according to article 259 TFEU or complain with the Commission.

In the recent case N. S. (Case C-411/10 N. S. v Secretary of State for the Home Department et M. E. and Others), concerning transfers of a asylum seekers to Greece, the Court made a caveat to that principle.

It held:

At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights.


By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision.

Jégo-Quéré revisited

The case law of Court on individual standing for review of legality of measures of general application has faced criticism over the years for being too strict. Applicants had to fulfill the conditions contained in the (in)famous Plaumann judgment: an act of general application had to affect ‘them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision’ (the Plaumann formula).

It has been very difficult for individuals who wish to challenge EU measures of general application to satisfy this test. Article 230 EC has now been amended with the entry into force of the Treaty of Lisbon.

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