The Price is Not Right: Italian Troubles with Road Haulage and Tobacco Pricing

Angus MacCulloch, Lancaster University Law School

Two recent judgments handed down by the CJEU show how difficult it can be for a Member State to involve itself in fixing minimum prices for products. Given the ongoing challenge to minimum alcohol pricing in Scotland it is interesting that in both these cases the Court ruled against the fixing of prices, but for very different reasons. Neither case is directly analogous to the Scots alcohol MUP referred to the Court in Case C-333/14, but there are perhaps lessons that can be learnt.

Road Haulage

The first of the Italian cases is the least similar to the ongoing UK dispute, but it does indicate an important aspect of the wider problem with Member States interfering in markets. Cases C-184, 187, 194, 195 & 208/13 API and Others (ECLI:EU:C:2014:2147) concern a request for a preliminary ruling regarding the Italian Ministry for Infrastructure and Transport’s measures which fix minimum operating costs for carriage of goods by road. Charges payable by road haulage customers in Italy could not be lower than the minimum operating costs, and they therefore operated as a minimum price for services. The legislative provisions delegated the setting of the minimum operating costs to the Osservatorio; a group drawn from State, industry and stakeholder representatives. Its role was to ‘ensure the protection of road safety and the proper functioning of the market in the road haulage of goods’. The question the Court addressed was whether the fixing of prices by the Osservatorio could be compatible with EU law on the ground that it ensured road safety standards.

The Court first considered the nature of the measure itself – was it a public law measure, or a private arrangement? This is central to the applicability of EU competition law to the measure in question. Art 101 TFEU, when read in conjunction with Art 4(3) TFEU, applies where a Member State ‘requires or encourages’ anti-competitive agreements, or where it ‘divests its own rules of the character of legislation by delegating to private operators responsibility for taking decisions affecting the economic sphere’ [29]. Competition law does not apply to the legislative action of a Member State, as the Court makes clear in para [30]:

“where legislation of a Member State provides for road-haulage tariffs to be approved and brought into force by the State on the basis of proposals submitted by a committee, where that committee is composed of a majority of representatives of the public authorities and a minority of representatives of the economic operators concerned and in its proposals must observe certain public interest criteria, the fixing of those tariffs cannot be regarded as an agreement, decision or concerted practice between private economic operators”.

Even if the private parties were a majority on such a committee it would not affect the public nature of a measure ‘provided that the tariffs are fixed with due regard or the public-interest criteria defined by law’ [31]. However, on the evidence, it was clear that the Osservatorio was, in effect, a type of trade association. Eight of the ten members were industry representatives taking decisions by majority of its members; the State having no right of veto or casting vote [32-33]. The criteria upon which the Osservatorio operated were also problematic; its ‘guiding principles’ didn’t feature ‘any provision such as to prevent the representatives of the professional organisations from acting in the exclusive interest of the profession’ [35]. As to the road safety justification, the Court noted the legislation, ‘makes vague reference to the protection of road safety and, moreover, leaves a very large margin of discretion and independence to the members of the Osservatorio’ [37]. It therefore concluded, at para [38], that:

“In those circumstances, the national legislation at issue in the main proceedings does not contain either procedural arrangements or substantive requirements capable of ensuring, that, when establishing minimum operating costs, the Osservatorio conducts itself like an arm of the State working in the public interest”.

Having established that Art 101 TFEU applied to the measure, the Court turned to its potential for justification under Art 101(3). It rejected application of the Art 101(3) exception on the basis that while road safety may be a legitimate objective the fixing of costs was not ‘appropriate, either directly or indirectly, for ensuring that the objective is attained’ [51]. The measures also went beyond what was necessary as they did not allow carriers to prove that, although they charged lower prices, they fully complied with safety provisions [55]. The fixing of minimum costs could therefore not be justified.

Tobacco

The second case turns away from direct price fixing to a more indirect route: the taxation of tobacco products. In Case C-428/13 Yesmoke Tobacco (ECLI:EU:C:2014:2263) the Court considered the compatibility of the Italian rules setting excise duty on cigarettes. Those cigarettes with a lower retail price lower than brands in the most popular price category were charged a duty at 115% of the basic amount. This meant that the cheapest cigarettes, when compared with the most popular brands, were charged a slightly higher level of excise duty. With this higher level of duty their comparative price advantage was, at least partially, removed. It will not be a surprise to anyone that tobacco products are highly regulated in the EU, and that the protection of public health plays a significant role in that regulation. The relevant EU law is found in Directive 2011/64/EU which governs excise duty on tobacco products. The purpose of that Directive is to ensure the proper functioning of the internal market and neutral conditions of competition [23]. This reference to ensuring ‘neutral competition’ on the tobacco market became crucial to the rest of the judgment. The Directive draws a distinction between different types of tobacco product, for instance cigars and cigarettes, but treats all cigarettes as a single category without distinction. The Court made it clear, at para [31], that Member States, when imposing an excise duty, should not act in way which ran ‘counter to the objectives of that directive’:

“The establishment of different minimum tax thresholds according to the characteristics or price of cigarettes would lead to distortions of competition as between different cigarettes and would therefore be contrary to the objective pursued by Directive 2011/64 of ensuring the proper functioning of the internal market and neutral conditions of competition”.

Italy tried to rely on the public health objective to justify the imposition of the duty. The Court noted that the Directive already takes into account public health, at recitals 2, 14, and 16, and that the framework put in place by the Directive ‘does not prevent the Member States from taking measures to combat smoking and to ensure a high level of protection for public health by levying excise duties’ [36]. In that light the Court therefore ruled that the Directive precluded the setting of a differential rate of excise for a class of cigarettes based on their retail price.

It was clear in this case that the EU legislation took into account the health concerns in relation to tobacco and allowed the imposition of excise duty likely to discourage the consumption of tobacco; the Directive therefore did ‘not prevent’ health protection. But the Directive was also designed to ensure ‘neutral competition’ within the remaining market for tobacco products. The differential tax rate, which attempted to subvert normal price competition, was clearly then contrary to the purpose of the Directive.

Lessons for Minimum Alcohol Pricing

It is clear that the Scots MUP measure is not a disguised cartel, where the drinks industry’s attempts to set prices is given the protection by the State through legislation. But that does not mean that the API & Others is irrelevant to the ongoing SWA case. There is a clear connection between all three cases.

One of the questions raised in SWA regards the compatibility of MUP with Regulation 1308/2013 which governs, inter alia, the common market in wines. Art 167(1)(b) of the Regulation is particularly relevant as it prohibits Member States from laying down market rules which ‘allow for price-fixing’. On the face it of this could mean that the Scottish Parliament are constrained from introducing a minimum price for wine, in the same way as the Italian State was in relation to the imposition of a differential excise duty in Yesmoke. But if one considers Art 167 in context there is an argument that the apparently stark prohibition is more nuanced. The Regulations recitals make it clear that Producers Organisations and Interbranch Organisations (made up of producers and other industry stakeholders), as recognised in the Regulation, are to play a role in the organisation of the market; much as the Osservatorio did in Italian road haulage. It is not a surprise that the Regulation is clear that the rules in the common market, perhaps promulgated by way of a decision taken by an interbranch organisation (see Art 167(1)), should not relate to pricing. When read in this context it is not clear that the Regulation intends a bar on Member States adopting pricing controls unrelated to the common market organisation rules; i.e. where they are put in place for an entirely separate purpose.

Another interesting distinction between the Yesmoke and the SWA case is the fact that the tobacco Directive clearly has public health concerns at its forefront, and as the Directive had taken those concerns into account Italy was required to stay clearly within the terms of Directive. That is not the case in relation to the common market in wines. Health is mentioned in the Regulation, but only in relation of the production of foodstuffs, not in the wider public health concern that stems from the ‘hazardous and harmful’ consumption of alcohol. It would appear therefore that the Scottish Government may be able to argue that their separate concern for public health is outwith the terms of the Regulation and should be handled under the free movement provisions of the TFEU.

Cartel Damage Claims and the so-Called “Umbrella Pricing” Under EU Competition Law: The Kone Ruling of the CJEU

Jens-Olrik Murach and Pablo Figueroa

On June 5, 2014, the Court of Justice of the European Union (respectively, the “EU” and the “CJEU”) issued a Ruling in relation to so-called “umbrella pricing” cartel damage actions.  These claims refer to damages allegedly suffered due to the surcharge applied by non-cartelists who, independently and rationally, adapted to a price increase resulting from a cartel by increasing their own prices.

Pursuant to the Ruling of the CJEU in Case C-557/12 Kone (“Kone”), the Treaty on the Functioning of the European Union (“TFEU”) preempts the EU Member States from having in place domestic regulations which “categorically exclude” umbrella pricing claims deriving from breaches of EU Competition law.

I.   Background

In February 2007, the European Commission issued a Decision imposing fines on the members of an alleged cartel in the markets for lifts and escalators.  The members of the alleged cartel included the Finnish company Kone AG.

Relying on the “umbrella effect” of the cartel, ÖBB-Infrastruktur AG (“ÖBB”), a subsidiary of the Austrian Federal Railway, brought an action before the Austrian courts against the members of the alleged cartel, including Kone AG, claiming damages.  These damages would result from ÖBB buying from third party suppliers which were not a member of the cartel at a higher price than ÖBB would have paid but for the existence of that cartel, on the ground that those third undertakings benefited from the existence of the cartel in adapting their prices to the higher level (see Kone, at § 10).

ÖBB’s action was rejected by an Austrian Court of First Instance but it was upheld by the appellate Court.  The Austrian Supreme Court (“Oberster Gerichtshof“) asked the CJEU for a preliminary ruling on the issue of whether Article 101 TFEU (namely, the provision of EU law which prohibits anti-competitive agreements, the EU equivalent to § 1 Sherman Act) requires the recognition of “umbrella claims”.  This recognition would apparently be contrary to the requirements, applicable to damages claims under Austrian torts law, of “adequate causal link” between the conduct of the infringing entity and the injury and “unlawfulness”, that is, whether the provision infringed had as its object the protection of the interests of the injured person (see Kone, at § 13 to 15). Continue reading

Case Comment: Opinion of Advocate General Cruz Villalon in International Stem Cell Corporation (C-364/13)

Prof. Aurora Plomer

Three years after the landmark Brustle ruling, the CJEU is poised to revisit the scope of exclusion on industrial and commercial uses of “human embryos” in Article 6(2) (c) of the EU Directive on Biotechnological Inventions. This time, the referral is from a national court of first instance, the Chancery Division (Patents Court) of the UK High Court of Justice Court. In the Opinion of Advocate General Cruz Villalon, whilst the question raised by the UK court is “virtually identical” to the questions raised in the Brustle reference of the German Federal Court of Justice (BGH), the answer should be different.

One of the questions raised by the BGH in Brustle was whether the term ‘human embryo’ encompassed ‘unfertilised human ova whose division and further development have been stimulated by parthenogenesis’ (parthenotes). In Brustle, the Grand Chamber of the CJEU held that parthenotes fell within the scope of exclusion of Article 6(2) (c) because the term ‘human embryo’ had to be given an autonomous meaning in EU law and should be “be understood in a wide sense” to include any human ovum, as soon as fertilised “… since that fertilisation is such as to commence the process of development of a human being.” The criterion of whether an organism is “capable of commencing the process of development” (the ‘commencement’ test) was relied upon by the UK intellectual Property Office to reject two patent applications by International Stem Cell Corporation (ISC) relating to human embryonic stem cell lines produced by parthenogenesis activation of ova. In its appeal, ISC argued that the Brustle exclusion should not extend to parthenotes because such organisms are incapable of developing into human beings. In this light, the UK High Court raised the following question for a preliminary ruling: “Are unfertilised human ova whose division and further development has been stimulated by parthenogenesis, and which, in contrast to fertilised ova, contain only pluripotent cells and are incapable of developing into human beings, included in the term ‘human embryos’ in Article 6(2)(c) of Directive 98/44 on the Legal Protection of Biotechnological Inventions?”.

France, Sweden and the Commission submitted that, in the current state of science, parthenotes cannot be considered identical to embryos at any stage of their development and parthenogenesis cannot be regarded as a technique capable of commencing the process of development. Portugal expressed concern about the risks of further genetic manipulation and would have left the decision to national courts. The UK submitted that the critical factor was the capacity of the cell itself and not its capacities after genetic manipulation (para. 60). By contrast, Poland submitted that, even though parthenotes cannot develop into human beings according to current scientific understanding, nonetheless respect for human dignity requires that they should be treated as human embryos as they “initially undergo the same stages of development as a fertilised ovum (para. 60).

The analysis of Advocate General Cruz Villalon proposes to read into the Grand Chamber’s ‘commencement’ rule in Brustle a functional equivalence test, so that the decisive criterion which should be taken into account for determining whether an unfertilised ovum is a human embryo is “whether that unfertilised ovum has the inherent capacity of developing into a human being, i.e. whether it really constitutes the functional equivalent of a fertilised ovum.” (at para. 73). On this basis, the mere possibility that a parthenote could be genetically manipulated so that it can develop to term and into a human being does not change the fundamental character of the parthenote before manipulation. According to current scientific knowledge parthenotes do not have the capacity to develop into human beings but “where the parthenote is manipulated in such way that it actually obtains the respective capacity, it can no longer be considered a parthenote and it cannot be, consequently patented.” (at para. 77). Continue reading

Not waving, but drowning ? : European law in the UK courts

Aidan O’Neill QC

The relationship between EU law and the municipal law of the United Kingdom seems to lend itself to allusions to water.   In Bulmer v. Bollinger [1974] Ch. 401 Lord Denning famously referred (at 418F) to the incoming tide of EU law, observing that “it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”   And the Factortame litigation, too, was all about water, and the right to fish in it – specifically the Treaty based rights of Spanish fishermen not to be subject to discrimination on grounds of nationality when seeking to exercise their free movement rights to trawl for fish in UK waters.

The long decade of Factortame litigation – which unequivocally established that national courts in the UK should treat EU law based rights as being of a higher normative level than Acts of Parliament and that the UK could be found liable by UK courts to pay damages to those who suffered loss from Parliament’s enactment of an EU law incompatible statute – might now be seen to represent the high-water mark of the influence of EU law on domestic law.   For tides ebb, as well as flow.   The complaints of those of a Eurosceptic ilk of the Member States being “swamped” by a tsunami of EU regulation, of business drowning in EU rules have been increasingly dominant in our political discourse.   Eurocracy is associated with ever growing popular distrust.   The binding of Europe into monetary union is now seen as an act of hubris (the Greeks always have a word for it).     Even among the Europhiles, ideals and ideas seem to have drained from their grand post-War European project.   Scripture says: “without vision the people perish; but he that keepeth the law, happy is he”.   Yet what law is to kept, as the happy certainties of post-sovereign supra-nationalism embodied in une certaine idée de l’Europe no longer command common assent and have become unhappy uncertainties ?

Our courts are, of course, not insensible to this shift, this seeming turning of the political tide.   Recent judgments of the UK Supreme Court, in particular, have marked an increasing turn inward, as the continental is abandoned for the insular and the primacy of national constitutional fundamentals are re-emphasised over the provisions of international Treaties. But what “constitutional fundamentals”, you might well ask ? Classically, the only constitutional fundamental which existed in the UK under the Diceyan analysis of the constitution was the sovereignty of Parliament – and that has been considered and dealt with in Factortame.   What, then, is left within the UK constitution after Factortame ?  The judicial and extra-judicial writings of Sir John Laws seem to provide the beginnings of an answer. In R v Lord Chancellor Ex p Witham [1998] QB 575 he noted (at 581) that “in the unwritten legal order of the British state” it is “the common law [which] continues to accord a legislative supremacy to Parliament”. He also observed that the courts should recognise certain fundamental rights at common law whose “existence would not be the consequence of the democratic political process but would be logically prior to it”. In Thoburn v. Sunderland Council [2003] QB 151 he noted (at 185) that “the traditional doctrine [of Parliamentary sovereignty] has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle” by the recognition of certain statutes as “constitutional” in the sense that, while not being entrenched, their provisions were not subject to implied repeal by later “ordinary” Acts of Parliament.   Parliament could modify their terms, but only expressly.   In Jackson v. Attorney General [2006] 1 AC 262Lord Steyn went further, suggesting (at § 102), that there might be some constitutional fundamentals “which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.   Despite some initial scepticism about the need or utility for reliance upon notions of common law constitutionalism in a post HRA/post EU Charter era (see for example Watkins v. Home Office[2006] UKHL 17 [2006] 2 AC 395 per Lord Bingham at § 29 and per Lord Rodger at §§ 59, 61) the ideas of Sir John Laws appear now to have triumphed into the new constitutional orthodoxy.     They were certainly central to the finding of the UKSC in Axa General Insurance Company Ltd v Lord Advocate [2011] UKSC 46 [2012] AC 868 that statutes of the devolved legislatures were subject to a form of common law review (for breach of the rule of law and/or fundamental common law rights).   In Kennedy v Charity Commission [2014] UKSC 20 [2014] 2 WLR 808 Lord Toulson at § 133 regretted what he saw as “a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.”   In R (Buckinghamshire County Council) v Transport Secretary [2014] UKSC 3 [2014] 1 WLR 342 Lord Neuberger and Lord Mance – in rejecting what looked like a fairly clear line of CJEU case law on the issue of what might properly be expected in and of a Strategic Environmental Assessment for large infrastructure projects (such as HS2) – suggested that there may be constitutional fundamentals which even EU law could not overcome.   As they noted (at § 207) that

“the United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”

And in R (Osborn) v Parole Board [2013] UKSC 61 [2013] 3 WLR 1020 the UKSC emphasised (in Lord Reed’s judgment at § 62) that the starting point in fundamental rights cases should be “our own legal principles rather than the judgments of the international court”. Thus is the common law is resurrected, statutes and ancient charters deemed “constitutional”, old legal rules become fundamental principles, and rights discourse is de-Europeanised, re-patriated and re-branded as embodying the une certaine idée de l’Angleterre (or sometimes, even, de l’Ecosse). Continue reading

The sudden emergence of Charter principles in the Glatzel judgment of the CJEU

european-union-flags-at-t-0021Jasper Krommendijk

The judgment of 22 May 2014 in Glatzel is the first judgment in which the CJEU explicitly discussed article 51(1) and 52(5) of the Charter on Fundamental Rights, which distinguishes between (individual) rights and (programmatic) principles.

In Glatzel, the CJEU issued a preliminary ruling on the request of a German court about the compatibility with the Charter of Annex III to Directive 2006/126/EC (amended by Directive 2009/113/EC) laying down minimum standards relating to the physical fitness to drive a motor vehicle as regards visual acuity. The German court asked whether those physical conditions for drivers constitute discrimination on the grounds of disability and, hence, violate the principle of equal treatment (Article 20 of the Charter), and more specifically, the principle of non-discrimination on the grounds of discrimination (Article 21(1)) as well as the principle of integrating of integrating persons with disabilities (Article 26). The CJEU eventually concluded that it did not have sufficient information to conclude that the Annex is invalid.

There are several interesting points which could be looked at more closely, such as the way in which the CJEU used the UN Convention on the Rights of Persons with Disabilities (CRPD) (para. 45, 68-72) as well as the way in which the CJEU carefully examined whether there is an objective justification of different treatment (see below). These two issues –the application of the CRPD and the elaborate justification test- have been the focus of previous judgments of the CJEU (see for example for the former, Z (Case C-363/12 [2014]).

I. The distinction between rights and principles: a background and earlier cases of the CJEU

This post will, however, scrutinise the novel feature of this judgment: the fact that the CJEU has expressed itself for the first time on Article 51(1) and Article 52(5) of the Charter. These provisions make a distinction between rights and principles in the Charter. Article 51(1) provides:

The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

Article 52(5) stipulates:

The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

The inclusion of these provisions and this distinction between rights and principles was primarily the result of the opposition of UK, and also some other countries like the Denmark and the Netherlands, to the inclusion in the Charter of ‘social rights’ as legally enforceable claims. The UK eventually agreed with the inclusion of the Charter into the draft Constitution on the condition that the distinction between rights and principles was further clarified. The distinction was thus the result of a hard won battle and formed a crucial element in the Charter’s adoption. Continue reading

Zambrano: Unwritten?

Dr Iyiola Solanke

National courts have continued to deal with the consequences of Zambrano. Although Dereci and MacCarthy clarified that compulsion to leave related solely to practical consequences, the scope of ‘practical consequences’ was not determined by the CJEU. While the rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave, would the removal of the rights to welfare engage the Zambrano right?

This question was discussed in a previous post on the ‘Zambrano Amendments’[1] introduced in 2012 at the same time as changes were made to the EEA Regulations 2006 implementing Citizenship Directive 2004/38 to give effect to the Zambrano decision.[2] These ‘Zambrano Amendments’ banned Zambrano carers from all mainstream benefits under national law – employed and unemployed Zambrano carers were henceforth excluded from eligibility for social security benefits, child tax credits and housing entitlements. In HC and Sanneh, it was decided that this blanket refusal of welfare benefits was legal – it did not compel a Zambrano carer to leave the EU. The substance of the Zambrano right to reside remained intact even if the Zambrano carer was left destitute and without adequate resources to care for the EU citizen child.

LJ Elias introduced in Harrison[3] what has become the standard dicta for understanding the Zambrano principle. Dismissing a broad approach to the CJEU ruling, he stated:

‘… The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen’s rights would have to be protected (save for the possibility of a proportionate deprivation of rights).’

The Zambrano principle is thus limited to situations where the EU citizen is irrefutably in practice forced to leave the EU. The CJEU has not yet had an opportunity to comment on this approach and it has continued to be applied, most recently in Hines v London Borough of Lambeth[4] where the removal of one parent was found compatible with the Zambrano principle. Surprisingly, it was not applied in R (Osawemwenze) v SS Home Department[5] where both parents were told to relocate with two small children who may have been EU citizens. These cases continue the theme raised in my last post on the compatibility of rights under EU and ECHR law, in particular the rights of the child. The cases also provide further insight into the national judicial response to the Zambrano ruling.

Maureen Hines, a Jamaican citizen without permission to remain in the UK, was refused housing assistance despite being mother to a 5-year old boy, Brandon, who was born in the UK and thus an EU national. The reviewer for Lambeth decided that even if the refusal caused Hines to leave the UK, Brandon’s father, who had an EU right to permanent residence in the UK, could look after him: although his parents had separated, Brandon did spend two days and nights a week with his father. Continue reading

Case comment: Google Spain SL, Google Inc v Agencia Espanola de Proteccion de Datos, Mario Costeja González

juropean-justiceGuy Vassall-Adams, Matrix Chambers

This important judgment concerns the interpretation of Directive 95/46/EC (the Data Protection Directive) and was handed down by the Grand Chamber of the European Court of Justice on 14 May. Although the ruling is of immediate relevance to the publication of search results by search engines such as Google, the judgment is of general relevance to the publication of information on the internet within the European Union.

The complaint was brought by Mr Gonzalez, a Spanish national living in Spain, against the publisher of a Spanish daily newspaper (La Vanguardia) and against Google Spain and Google Inc. The complaint related to the fact that when a search was undertaken on the Google search engine (“Google Search”) against the Claimant’s name the results provided links to articles in La Vanguardia from 1998 mentioning Mr Gonzalez in connection with bankruptcy proceedings. Mr Gonzalez wished to put those matters behind him and although he had failed in his complaint against the newspaper (which could benefit from the journalistic exemption under the Directive), he contended that the continued publication by Google Search of those search results breached his rights under the Directive. He sought an order requiring Google to remove or block the search results.

Continue reading

Regulating spousal reunion under EU and Convention Law

Dr Iyiola Solanke

Countries in Europe have increasingly adopted immigration rules that explicitly test an applicant’s ‘ability to be integrated’ into the host society. This controversial idea goes beyond formal citizenship acquisition to prioritise, for example, the specific level of ‘attachment’ with the host society or level of knowledge of the host country language. Such individual capacity tests, which in practice particularly affect black Europeans and third country nationals from Africa, Asia and Latin America, have recently come under legal scrutiny before the CJEU in Luxembourg and the ECtHR in Strasbourg. In Dogan v Germany national authorities in Germany refused family reunion to a migrant Turkish worker on the ground that his wife could not speak German; in Biao v Denmark the Danish authorities refused the application of a Danish citizen for family reunion on the basis that he and his wife had stronger attachments to Ghana than Denmark. The judicial evaluation of these tests has also differed – the Danish rules were upheld in Strasbourg (albeit by a narrow majority of 4:3) but in Luxembourg Advocate General Mengozzi has suggested that the German decision be declared incompatible with EU law by the CJEU. The reasons for these decisions will be discussed below. The cases provide an opportunity to assess the approach to immigration rules and family reunion under these two systems of law and raise again a central question about accession: while the EU may formally accede to the Convention, can and will the CJEU see issues in the same way as the ECtHR?

The Facts

In 1998 Mr Dogan, a Turkish national, had exercised rights provided in the 1963 EU-Turkey Association Agreement to establish himself as a company director in Germany. In 2002 he was granted permanent residence in Germany. In 2007 he married the mother of his four children, an illiterate Turkish woman. In 2011, Mrs Dogan applied for a visa for the purpose of reunification of the whole family with her husband in Germany. At her interview, she said nothing beyond repeating three memorised sentences. Her application was refused due to no basic knowledge of the German language as per Article 2(8) of the Aufenthaltssgesetz 2008. A second application requesting a visa for herself alone was also rejected for the same reason. The second refusal was challenged and the court in Berlin stayed the case to send two questions to the CJEU concerning first, the interaction of this new German rule with the Association Agreement and secondly, its compatibility with Article 7(2)(1) of Directive 2003/86 on the right to family reunification.

Mr Biao was born in 1971 in Togo, where he lived until the age of 6. However, he spent many years living with an uncle in Ghana and completed his schooling there. At the age of 22, in 1993, he unsuccessfully applied for asylum in Denmark. In 1994 he married a Danish woman, and under the Danish Aliens Act thereby became eligible for a residence permit; this permit became permanent in 1997. He divorced his wife in 1998 and in 2002 at the age of 31 became a Danish citizen. In 2003 he married a 24 year old Ghanaian woman – she applied for a residence permit for Denmark, which was refused on the basis that neither Mr Biao or his wife could prove that their ‘aggregate’ ties were stronger to Denmark than to any other country ie. Ghana, as required under the Aliens Act. Mrs Biao appealed the decision but as it had immediate effect, the couple moved to Sweden where in 2004 they had a son. The son acquired Danish nationality from his father. The Biaos complained to the Strasbourg Court that the refusal by the Danish authorities to grant them family reunion in Denmark breached Article 8 of the Convention, alone and in conjunction with Article 14. Continue reading

Taxing Times: the UK’s Challenge to the Financial Transaction Tax

KAProf Kenneth Armstrong, University of Cambridge

Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.

Samuel Beckett

Just over a year since the United Kingdom (UK) commenced legal proceedings against the Council of the EU challenging its decision to authorise the use of enhanced cooperation for the adoption of the proposed Financial Transaction Tax (FTT), the Court of Justice has, as anticipated, dismissed the UK’s application (Case C-209/13, United Kingdom v Council). This is another defeat for the UK following on from its unsuccessful challenge to the powers of the European Securities and Markets Authority to control ‘short-selling’. Whether the UK will have more success in the third of its triptych of legal challenges to measures adopted in the wake of the financial crisis – the cap of ‘bankers’ bonuses’ – is yet to be determined. However, in the lead up to the European Parliament elections, with the United Kingdom Independence Party riding high in the polls and the UK prime minister declaring that he will not act as prime minister following the 2015 general election unless there will be a referendum on the UK’s continuing membership of the EU, it is clear that these defeats before the Luxembourg court have both political and legal saliency.

 

Continue reading

Making Infringement Procedures More Effective: A Comment on Commission v. Hungary, Case C-288/12 (8 April 2014) (Grand Chamber)

scheppele, kimKim Lane Scheppele, Princeton University 

On 8 April, Hungary lost again at the Court of Justice of the European Union (ECJ). The European Commission had alleged that that Hungary violated the independence of its data protection officer and the ECJ agreed. The case broke little new legal ground.   But it is important nonetheless because it signals serious trouble within the EU.   The case exposes Hungary’s ongoing challenge to the EU’s fundamental principles. And it exposes the limitations of ordinary infringement proceedings for bringing a Member State back into line.

 The Commission may have won this particular battle, but it is losing the war to keep Hungary from becoming a state in which all formerly independent institutions are under the control of Fidesz, the governing party.   The Commission clearly sees the danger of one-party domination and it has attempted to challenge the Hungarian government before. But the Commission has so far not picked its battles wisely or framed its challenges well. It could do better. The case of the data protection officer is a case in point.  

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