Thursday, September 29, 2011


This is fun: If Kadi and other victims of the UN Terror Watch List can get judicial review in EU courts, what about Vojislav Seselj? While I do not think that his 8,5 years of pretrial detention are excessive, it is interesting to speculate whether there would be any remedy if it were. Understandably, the ICTY and its prosecutor take the view that the tribunal is not bound by the ECHR (link, in Dutch), but then, so did the EU Council in Kadi. That did not stop the ECJ from ignoring the plain text of art. 103 UN Charter:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
Here, the conflict would not be with the EU Treaties, but with the European Convention for Human Rights. Now clearly, the ECHR is not a "basic constitutional charter" the way the EU Treaties are. (Kadi, par. 281) There is no question that the ECHR is an international agreement, even if one would like to fib about the question of whether the EU Treaties are.

However, that is not the end of the story. Because the Kadi judgment, it seems to me, reflects another underlying assumption. After all, even if the EU Treaties are so "constitutional" that they have established "a new legal order of international law" (Van Gend & Loos), that still does not change the fact that UN Security Council resolutions are presumptively binding on the EU and its Member States. At the EU level, however, there is a functioning system of judicial review. Kadi again:
285 It follows from all those considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty.
Under Dutch law, however, treaties (including the UN Charter) trump the Constitution:
Article 94
Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions.
(Despite the unfortunate translation of the term "wettelijke voorschriften", this provision applies to the Constitution itself as well. This follows from art. 91(3), which establishes an extra-difficult ratification procedure for treaties that conflict with the Constitution.)

So if Seselj brought the Dutch equivalent of a Habeas petition, the court would simply reply that his detention is lawful because it is pursuant to a Security Council resolution (Resolution 808, to be precise). Which leaves only one question: If this Dutch judgement were appealed until all national remedies were exhausted, and followed by an appeal to the ECtHR in Strasbourg, what would the Strasbourg court say? Would they be prepared to impose a damages award in these circumstances?

Today in Luxembourg

Mr. Donner may want to pay attention to this one: The Netherlands again lost a case about a Turkish worker. They tried to retroactively withdraw someone’s residence permit because he was no longer in compliance with the grounds upon which it was issued (i.e. he no longer lived with his partner), even though there was no suggestion of fraud. The ECJ now says that they can’t do that. As usual, Decision 1/80 is on p. 155 here. Unal v. Staatssecretaris van Justitie

Two of the culprits in the Monochloroacetic Acid cartel appealed the General Court’s decision to uphold their fine to the ECJ. Arkema lost, but Elf Aquitaine hit the jackpot, saving it a € 45 million fine. (NL, DE, FR) The offending behaviour should not have been ascribed to Elf Aquitaine.

AG Jääskinen argues that the Polish law on medicinal products violates Directive 2001/83 because it is too restrictive when it comes to the placing on the market of medicinal products without a marketing authorisation. Commission v. Poland

Ryanair won before the General Court today in its attempt to do something about alleged state aid given by the Italian state to Alitalia, Air One and Meridiana. The General Court held that the Commission should have adopted a formal decision on Ryanair’s complaint. Ryanair v. Commission

P.S. the archive of these emails is here.

Tuesday, September 27, 2011

Holder in Brussels

To the undoubted delight of everyone and anyone in the European Parliament, US Attorney-General Eric Holder was in Brussels for an exchange of views with the LIBE Committee last week. In the presence of the AFET Committee and the EU-US delegation, the Committee spoke with the AG about privacy. (The meeting actually took place in the József Antall building, where I've never been because they were still building it when I was in Brussels in 2006.)

For those who want to know more about the topic, the video is here and the AG's introductory remarks are here.

Personally, I am simply rejoicing at the thought of all those proud MEPs sitting there posing stinging questions to the Attorney-General, such as Carmen Romero (S&D, ES), who explained that "[her] impression is that in the US privacy is a kind of conditional right". Also, imagine the astonishing amount of doublethink involved in talking for an hour and four minutes without ever admitting that Americans and Europeans simply mean completely different things when they talk about "privacy rights". Such doublethink allowed the AG to say things like "each of our systems protect civil liberties - including privacy - effectively, but in our own ways". (Cf. EP Press Release)

In the US, privacy is about what people are allowed to ask when. In the EU, privacy is about what people are allowed to do with your data after they've asked. Completely different things...

Friday, September 23, 2011

Yesterday in Luxembourg

In the category “fun with international relations and television”, there is a Kurdish TV station operating out of Denmark that upsets Turkey enough to upset Germany as well. What can Germany do? Does Directive 97/36 prevent Germany from going after this TV station the way it would if it were an entirely German matter? The ECJ decides to stick propaganda for the PKK under “incitement to hatred” (cf. art 22a of the Directive), but makes the proviso that Germany can’t prevent the TV station from broadcasting in Germany altogether. Mesopotamia Broadcast and Roj TV v. Germany

Personally, I think the Commission’s entire approach in the Belgian La Poste state aid case is a bit odd, given how they combine different wrongs to make a right (cf. par. 12-20). General Court, however, simply annulled the decision because of flaws in some of the individual steps (case T-388/03), and Belgium’s appeal is now rejected by the ECJ. Belgium v. Deutsche Post

AG Trstenjak has the case that we all knew was coming ever since the ECtHR ruled in M.S.S. v. Belgium and Greece (cf. StrasbourgObservers). The AG proposes that the Court should essentially follow Strasbourg, meaning that the UK can’t just ship all asylum seekers back to Greece like they would to any other EU Member State. Note also the analysis of Protocol No. 30, the one that exempts the UK and Poland from the EU Charter of Fundamental Rights. N.S. v. Secretary of State for the Home Department

In Interflora, the 1st Chamber goes over the Google Adwords case law again. I’m not sure if that part about dilution was always there, though.

Another Bud ruling! This week, we turn to issues of acquiescence and similar “they did nothing for decades” arguments. Budějovický Budvar, národní podnik v. Anheuser-Busch Inc.,

P.S. the archive of these emails is here.

Thursday, September 15, 2011

This Week in Luxembourg

The most important news this week is that my beloved Grolsch was acquitted – I suppose we can say – of involvement in the Dutch beer cartel (NL). The General Court found the Commission’s evidence wanting. Grolsch v. Commission (NL, DE, FR)

This week, the Grand Chamber handed down its age discrimination for pilots judgement. In Prigge et al. v. Deutsche Lufthansa, it found that mandatory retirement at 60 is not proportionate to the aim pursued, thus violating art. 4(1) of Directive 2000/78, nor is airway safety a “legitimate aim” in the sense of art. 6(1) of that Directive.

In the electricity sector, the Commission lost a fascinatingly complex infringement case against Slovakia. The Commission had alleged that Slovakia had failed to fulfil its obligations under Directive 2003/54 on the internal market for electricity by keeping in place a private law contract between its state electricity company and a Swiss company that predated accession, giving the Swiss preferential access to part of the network. Like the AG, the Court concluded that the contract – and the 1990 treaty on which it was based – should be protected under art. 307 EC. Commission v. Slovakia

Germany appealed the judgement of the General Court upholding the decision of the Commission that the rollout of digital TV in Berlin-Brandenburg involved unlawful state aid. Unfortunately, at least for Germany, the 6th Chamber agreed with all those before it. A quick glance suggests that the main problem was whether the aid in question distorted the market unreasonably. Germany v. Commission (DE, FR)

In the Spanish case of Gueye, the ECJ held that an automatic injunction requiring a convicted criminal to stay away from the victim is consistent with Framework Decision 2001/220 even when the victim opposes it. Likewise, Spain is permitted to rule out mediation regarding certain kinds of criminal offenses committed within the family.

Let’s take a moment to consider holding no. 1 in Dickinger and Ömer: "European Union law, in particular Article 49 EC, precludes the imposition of criminal penalties for infringing a monopoly of operating games of chance, such as the monopoly of operating online casino games laid down by the national legislation at issue in the main proceedings, if such legislation is not compatible with European Union law." Say what? Anyway, otherwise it is a fairly straightforward online gambling case.

As one might expect, when art. 16(1) of Directive 2004/38 (the free movement directive) talks about lawful residence, the law in question is not only EU law. At least, that is the conclusion of AG Bot in Ziolkowski et al. v. Berlin (NL, DE, FR). Residence prior to the home country’s accession also counts, as does any other residence that is lawful under the law of the host nation.

AG Mazák ponders how you can tell whether goods being imported from ACP countries are actually Chinese. There are limits to OLAF’s powers of investigation, at least outside the Union Territory. Also watch out for some legitimate expectations creativity. Hauptzollamt Hamburg-Hafen v. Afasia Knits Deutschland GmbH

P.S. the archive of these emails is here.

Wednesday, September 14, 2011

Rawagedeh (II)

A second big whopper in today's Rawagedeh ruling comes up when we get to the question of limitations. By what logic can you still sue over something that happened in the 1940s? In this section, the government initially scores win after win. Because Dutch law applies, the court brings in the old Statute of Limitations (1924), which included a special set of rules for debts owed by the government. Since the term set by that statute is five years from the moment the debt arose, it should be an open and shut case, right?

Wrong. Under Dutch law, old and new (i.e. old civil code, which applies to this case, and the post-1992 new civil code), there is such a thing as a general obligation of good faith. That means that the court can decide that in certain extreme conditions it would be unequitable to apply the limitations period. (To be precise, it would be lacking in good faith for the defendant to rely on this argument.) The question is whether this situation qualifies.

In the past, the Supreme Court has allowed such "equitable tolling", as it would be called in the US, in a few cases. For example, it is a bit harsh to apply the limitations period to damage caused by an unlawful government decision if such a case cannot be brought in the first place until the administrative courts have annulled said decision. Similarly, the starting date of the limitations period should reasonably be moved up in cases where the damage is hidden. But in this case the problem isn't that the plaintiffs couldn't bring the case, but that for whatever reason they didn't.

Nevertheless, the court lists a number of factors that might reasonably suggest that the usual reasons for having a limitation period do not apply here very much. For example, the state accepts the plaintiff's version of events, so there is no major dispute as to facts and no need for serious quantities of evidence. And for some reason that I won't claim to comprehend the State gets blamed for sitting back and doing nothing all these years. Then the State's continued activity with World War II debts gets dragged into it to show that the State "has not yet closed the book on this era". Etc. All of which is well and good, but none of which explains why this situation is just as extreme as the ones already approved by the Supreme Court, which seems to me to be the relevant question.

The plaintiffs actually made a second argument, which might have gone a long way towards making the court's case. They argued that equitable tolling is required here because applying a limitations period would violate fundamental human rights, etc. This argument is a little wobbly, because the ECHR does not directly apply here both because of time and because of place, but in general terms it might work. If the case concerns something as serious as a war crime, a limitations period might not be appropriate. However, such a decision would require an explanation as to why the court should claim the right to make that decision itself, rather than basing its decision on a statute or treaty. (None being available.)

Moreover, it is a bit of a strange argument, since it puts the cart before the horse. After all, it involves basing the court's willingness to investigate a case on the seriousness of that case. That is fine here, since there is no material dispute as to the facts, but if that were different, the result would be that the court is basing its decision regarding the limitations period only on the facts as stated by the plaintiff. And that can't possibly be good policy, regardless of whether you would allow the court to later change its mind again.

And just as icing on the cake, the court decides - because it feels like it - that the wives of the victims and the plaintiff no. 8 (who was an actual victim) may sue, but that the limitations period stays in place for the other plaintiffs, because they weren't sufficiently closely connected to the events. Yet more mixing up of merits and limitations...

Rawagedeh (I)

The ruling by the Court of First Instance in The Hague about the war crimes in Rawagedeh (Indonesia) in 1947 is fascinating on many levels. As I read on, I'll blog about some of the highlights.

To begin with, there is the problem of International Private Law: Which system of laws applies to this alleged tort? The law used to decide that is the Dutch PIL statute for torts, the WCOD. (Lest this become an everlasting regression, the rule is that you use the Private International Law statute of the forum.) However, the WCOD has only been in force since 2001, and does not as such work retroactively. Hence the first cheat: the court decides - correctly - that the statute more or less codified pre-existing law, and then concludes that that is enough to make it applicable to a tort committed in 1947. That last step seems a little dodgy to me. I'm willing to accept that the rules codified in the statue already existed in the 1990s, or even 80s, but in the 1940s? Can we see some case law for that?

Then we get to the big problem: art. 3(1) WCOD declares that the lex loci delicti rule applies. The law of the state where the tort was committed is applied to the case. However, in this case, the alleged tort was committed in the Dutch East-Indies, a state that was at the time distinct from the Netherlands (Kingdom in Europe), and which hasn't existed since December 29, 1949. Now it need not be a major problem to apply the law of a state that no longer exists, but the court thinks that applying the law of a country that hasn't existed for more than 60 years would be pushing it. Which brings us to the next question:

If not the law of the Dutch East-Indies, which law should it be? Logically, it would have to be the Netherlands (Kingdom in Europe) or Indonesia. Since the perpetrators of this crime were Dutch military personnel carrying out orders of the Dutch colonial government in what was, at the time, part of the Kingdom of the Netherlands, the court argues that the case is more closely connected to the Netherlands than to Indonesia.

This seems, to put it mildly, a curious conclusion. One might just as easily argue that the case is more closely connected to Indonesia, the successor state to the Dutch East Indies, the state of the victims, and the state that claims to have existed since 1945, or barring that since the 1946-7 Linggadjati Agreement.

Paradoxically, it is the Indonesian plaintiffs who benefit from this conclusion. After all, we might assume that Indonesia does not have the kind of stringent war crimes legislation that the Netherlands has. Although presumably they have a civil law wrongful death tort, under Indonesian law there would probably be more scope for a "following orders" or "military necessity" defence.

Tuesday, September 13, 2011

Last Week in Luxembourg

Because I spent last week getting ready for my Ph.D. defence, actually defending, and then celebrating, last week’s judgements had to wait until today:

Quite rightly, Aldo Patriciello will be stripped of his immunity as an MEP. Cf. the blog post I wrote when AG Jääskinen delivered his opinion in this case.

The Grand Chamber also looked at some Danish tax creativity. The Danish government refused to reimburse a tax paid in error, the error being that the tax was found to violate Community law. The reason why they’re not reimbursing is that to do so would create an unjust enrichment, given that the tax was enacted in a revenue neutral manner. The Grand Chamber won’t bite: such an argument only works if the objection is that the tax has already been passed on to the consumer. Lady & Kid et al. v. Skatteministeriet

In the War on GMOs, the score came out 2-2. In the big Grand Chamber case of Bablok et al. v. Bayern, GMOs only won on the first question. On the other two, GMOs lost. Accidentally including them in honey still counts, and there will be no general tolerance threshold analogous to the one explicitly mentioned for labelling in art. 12(2) of Regulation 1829/2003. Then again, the French government probably crossed a few lines in banning a GMO crop that had previously been authorised by the Commission. Monsanto et al. v. Ministre de l’Agriculture et de la Pêche

In Paint Graphos, the First Chamber gives some guidance in a case about (alleged) state aid in the form of tax breaks for producers’ and workers’ cooperative societies in Italy.

In Air Transport Law, the Court found that environmental legislation is not normally an “operating restriction” in the sense of art. 2(e) of Directive 2002/30, “ unless, in view of the relevant economic, technical and legal contexts, it can have the same effect as prohibitions of access to the airport in question.European Air Transport v. Région Bruxelles-Capitale

The Dutch NOx emissions trading scheme, which had been classified by the Commission as illegal state aid, but had been approved by the Court of First Instance, has now been condemned again by the ECJ. The way in which NOx credits are given away free of charge is not permitted under EU law. Commission v. Netherlands

In Hennings, there is some confusion about collective bargaining and age discrimination. The Court sides against both. (Or rather, it says that its judgement declaring the age discrimination at issue in the case at bar does not interfere with the parties’ collective bargaining rights. Of course, saying it doesn’t make it so.)

If the Court declares a Belgian law incompatible with Community Law, is Belgium allowed to start the limitation period for damages from the day the law was enacted, instead of some later day? The Fourth Chamber says it is, meaning that in the case at bar the damages claim was time barred long before the law was actually annulled in Luxembourg. Q-Beef v. Belgium

AG Kokott has a nice head-scratcher: What to do about a continuous competition law infringement that started before a country’s accession and was – subsequent to that accession – penalised by the Commission? Is the national competition authority still competent to go after the offending companies for the pre-accession period? The AG argues that it is. Toshiba Corporation and Others

In Hypoteční banka, a.s. v. Udo Mike Lindner (NL, DE, FR), AG Trstenjak also does not have it easy. The case concerns the appointment of a mandataris at litem to stand in for the defendant in a suit for non-payment of a mortgage loan. (Mr. Lindner cannot be located.) Since the defendant is German, and the case is otherwise located in the Czech Republic, the mandataris decided to earn his keep by making a list of objections to his own appointment under Regulation 44/2001. The AG thinks that some of these objections are well founded.

More creativity: social security for a Dutch worker living abroad and working on a drilling platform on the Dutch part of the continental shelf. AG Cruz Villalon thinks he should still get his Dutch disability benefits. Salemink v. UWV (NL, DE, FR)

AG Jääskinen considers the tax regime applicable to France Télécom between 1994 and 2002, and finds no reason to disagree with the Commission’s conclusion that this involved unlawful state aid. France Télécom v. Commission (DE, FR)

AG Mengozzi argues that the Rome II Regulation on the law appliccable to torts only applies to torts committed after its entry into force, i.e. after 11 January 2009. This is a difficult case, given the literal text of art. 31 and 32: “This Regulation shall apply to events giving rise to damage which occur after its entry into force.” And “This Regulation shall apply from 11 January 2009 (...).” Somehow, the referring court thought that art. 297(1), third sentence TFEU affected the outcome. Deo Antoine Homawoo v. GMF Assurances

AG Mengozzi thinks the owner/passenger of a car (or rather: his insurance company) should pay the damage caused by an accident if the driver, whom he gave permission to drive, does not have insurance. Note that this situation of the victim and the negligent insured being the same person only comes up under the usual British way of arrranging car insurance. In the continent, the insurer would always pay out, since the insurance would essentially be connected to the car only, not the driver. Churchill Insurance Company Ltd. v. Wilkinson

Because Bulgaria is awesome, they have a law that allows certain debtors of the state to be banned from leaving the country. AG Mengozzi, however, does not like it, because it does not meet the stringent requirements of the free movement directive, art. 27. Aladzhov (NL, DE, FR)

Finally, for those who had not heard of it yet: the Amicuria EU Law database is the greatest thing since straight bananas.

P.S. the archive of these emails is here.