Category Archives: Case Comments

Alcohol Pricing, EU Law and the Court of Session

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Angus MacCulloch

There has been debate about the legality of minimum per-unit (MPU) alcohol pricing in the UK, since the SNP-led Scottish Government first suggested adopting such a measure back in 2009. I contributed to the debate on several previous occasions, but now there is a little more substance to be discussed after the Outer House of the Court of Session, on 3 May 2013, handed down its judgment in The Scotch Whisky Association and Ors, Re Judicial Review of the Alcohol (Minimum Pricing)(Scotland) Act 2012 [2013] CSOH 70. The judgment answers some of the questions posed, but, sadly, it leaves yet more unanswered. I doubt this will be the last that we see of minimum alcohol pricing before the courts.

The SWA petitioned the court challenging the legality of the Alcohol (Minimum Pricing)(Scotland) Act 2012 and a proposed Order under that Act which would have set the minimum price at 50p per unit. Under that Order the minimum price for a product would be set using the formula: MPU x strength x volume in litres x 100. For one of my favourite red wines this would mean a minimum price of £5.62 per bottle (£0.50 x 15% x 0.75 x 100). For a can of Stella Artois the minimum price would be £1.14 (£0.50 x 5.2% x 0.44 x 100). Continue reading →

Melloni and the future of constitutional conflict in the EU

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Dr Dorota Leczykiewicz

Constitutional conflict is a leitmotif of the relationship between EU law and national law. Courts of EU Member States are under a dual obligation of loyalty. On the one hand, they need to apply and respect their own laws, but on the other, they also need to ensure effectiveness of norms of the EU legal order. In the event of conflict, the principle of supremacy of Union law tells them to disapply conflicting national rules. Member States’ courts to a large extent accept that obligation, although they usually exclude from its ambit conflicts between EU law and state constitutions. For this reason, the best tactic for the Court of Justice of the EU is to avoid situations where EU law would require from national courts to act in violation of the state constitution. The Court of Justice has developed various techniques to deal with such instances of potential constitutional conflict. The controversial issue may be brought outside the scope of EU law (Grogan), EU law may be recognised to protect the same constitutional right and to the same far-reaching extent (Omega Spielhallen), or the principle of respect for national identity, as laid down by Article 4(2) of the Treaty on the European Union, may be used to allow national norms to remain applicable even when they undermine effectiveness of an EU norm (as I discuss here). In a recent judgment in the Melloni case(Case C-399/11, Judgment of 26 February 2013) the Grand Chamber of the Court of Justice of the EU decided not to use any of these techniques. Instead an EU Framework Decision was held to prevail over the Spanish Constitution. Continue reading →

Case Comment: Las v PSA Antwerp NV (C-202/11)

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Michèle Finck, University of Oxford

On 16 April 2013, the Grand Chamber of the Court of Justice of the European Union (hereafter referred to as ‘the Court’ or ‘the CJEU’) delivered its judgment in Anton Las. At issue in this case was a decree of Flanders, a federated entity of the Belgian State, which required all cross-border employment contracts to be drafted in Dutch, one of Belgium’s three official languages. The CJEU had to decide whether such a measure was compatible with the free movement of workers, enshrined in Article 45 TFEU.

The Court held that, while the measure at issue could have been justified by the objectives invoked by Belgium; namely the protection of a national language, the protection of employees and the effective supervision by the national authorities, the obligation was disproportionate and thus contrary to EU law. While this case raises many interesting questions, this blog post focuses on merely one of them, namely on the CJEU’s stance towards the right of a sub-national authority of a Member State to protect and encourage the use of an official language. Aspects specific to Article 45 TFEU will not be dealt with. Continue reading →

Case Comment: HMRC v Aimia Coalition Loyalty UK Ltd [2013] UKSC 15

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Matthew Wentworth-May

Last month the Supreme Court decided, by a majority of 3-2, to dismiss the appeal of the Commissioners for Her Majesty’s Revenue and Customs. The decision followed a reference to the Court of Justice of the European Union by the House of Lords, and an important part of the decision was the extent to which the ruling by the CJEU was determinative of the appeal. The majority thought that it was not and, despite seemingly clear statements from the CJEU to the effect that HMRC’s appeal must succeed, the majority still found for the taxpayer.

 The facts

Aimia Coalition Loyalty UK Limited (“LMUK“) operates the Nectar points scheme which rewards customers by giving them points when they buy goods or services from certain businesses (known as ‘sponsors’). The customers then redeem the points in return for other goods and services (“Rewards“) from other suppliers (known as ‘redeemers’). In practice the sponsors and redeemers are frequently the same business.

LMUK is paid by the sponsors for the points it issues under the scheme, and LMUK accordingly accounts for VAT in respect of the supply it makes of issuing points (LMUK also receives a fee for providing certain other services, such as marketing services). LMUK then pays the redeemers a fixed amount (a “Redemption Amount“) for each point which is redeemed in return for Rewards. Continue reading →

Kadi II

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Conor Gearty

Yves Bot had a long career as a senior French prosecutor behind him when in 2006 he joined the European Court of Justice as an Advocate General.  It has fallen to him to provide an advisory opinion in the seemingly interminable Kadi case, now winding its way back to the Court some five years after it first generated headlines, making the court (and a predecessor of Bot, Miguel Maduro) into near-celebrities in legal and human rights circles.

But why is Kadi going on and on?

The first decision in Kadi and Al Barakaat International Foundation v Council and Commission (on 3 September 2008) made such dramatic news because it as good as disapplied United Nations sanctions against suspected terrorists within the EU legal space.  As Advocate General Bot puts it ‘[i]n essence, the Court held 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 EU 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 that Treaty’ [para 16].

Strong stuff.

So strong, the Court held back from immediate implementation of its ruling.  A flurry of activity followed. Kadi was sent reasons why he was on the UN blacklist, he commented, and the Commission then issued a fresh regulation keeping him where he was but boasting in the recitals of how inclusive they had been in this new decision-making process.  Its regulation was backdated to 2002 so as to provide no chink of light for Kadi so far as getting at his funds was concerned.  In further correspondence the Commission said that the ECJ ruling did not require it to disclose any of the evidence underpinning the reasoning behind the blacklisting.

So Kadi I was great for all the human rights and civil liberties people – but not for Kadi.

Hence Kadi II. Continue reading →

Reforming Air Passenger Rights in the European Union

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261Dr Jeremias Prassl

Fellow, St John’s College, University of Oxford

Commission Proposal [COM(2013) 130] for a Regulation amending Regulation 261/2004

The enactment of Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights has been one of the most successful areas of EU action in the field of consumer protection. At the same time, its provisions have shown their potential to impose significant additional cost on operators, thus leading to persistent compliance problems as airlines repeatedly challenge the validity and interpretation of the Regulation. On March 13, 2013 the European Commission finally heeded calls for reform, putting forward a proposal for a new Regulation to amend and extend the existing regime.

Proposed Changes

There are two broad aims pursued by the Commission’s proposals: the clarification and fine-tuning of the existing Regulation 261/2003, and the introduction of a suite of new passenger rights, underpinned by measures aimed at ensuring the effective application of air carriers’ obligations. The first part of this post sets out the key changes, in particular where the proposals relate to existing provisions as interpreted by the Court. Continue reading →

Akerberg and Melloni: what the Court said, did and may have left open

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John Morijn

With Akerberg and Melloni the CJEU issued two important judgments on 26 February 2013. After a first post about Akerberg, in this second part John considers Melloni and the Court’s application of article 53 of the Charter of Fundamental Rights.

Melloni was about an Italian citizen whose extradition to Italy was ordered by a Spanish court in 1996. He fled while released on bail and so escaped surrender to the Italian authorities. In 1997 he was tried in absentia by an Italian court and sentenced to 10 years’ imprisonment for bankruptcy fraud. After resurfacing in Spain in 2008, Mr. Melloni was arrested by the police. At the constitutional court he challenged his impending surrender to il bel paese which in the meantime was based on a European Arrest Warrant (EAW), arguing it would violate his right under article 24(2) of the Spanish constitution not to be tried in absentia. The constitutional court, which had previously upheld a similar appeal under the first version of the EAW Framework Decision (FD) (2002/584) in a case concerning a request from Romanian authorities after an in absentia trial there, noted that the EU legislative arrangements had changed in the meantime. In particular,  FD 2009/299 had added wording (article 4a) to FD 2002/584 precisely on the point of under which conditions executing judicial authorities could refuse to execute an EAW if the person did not appear in person at the resulting in the decision. This led the constitutional court to ask, essentially, (1) whether the wording of article 4a (stating executing judicial authorities “may” refuse to execute an EAW issued, unless one of four scenarios is present) precludes national authorities from adding the condition that the conviction should be open tot review in the scenarios specified, (2) if yes, whether such preclusion would  actually be in line with articles 47 and 48(2) CFR, and (3) if so, whether article 53 CFR would then still allow for a higher national constitutional standard to be applied.  The Court answered the first two questions in the affirmative, relying in particular on its earlier ruling in Radu (see the previous EUtopia Law blog by Anita Davies here for convincing criticism of the Court’s approach). I will focus the discussion here on the article 53 CFR-point. Continue reading →

Sturgeon revisited (yet again): Case C-11/11 Air France v Folkerts

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Dr Jeremias Prassl

Regulation 261/2004 on common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights continues to trigger litigation in the highest Member State courts. A clear pattern has begun to emerge: following on from an airline’s persistent refusal to comply with compensation or care obligations, a preliminary reference indirectly challenges the validity and / or scope of the Regulation. The Court’s answer is nearly inevitably in favour of the passenger, confirming the validity of the Regulation and purposively interpreting its terms.

Facts and Questions Referred

Mr and Mrs Folkert had booked flights departing Bremen, Germany at 6:30 am, with a scheduled arrival time of 11:30pm in Asunción, Paraguy. Their initial flight was delayed by just under 2,5 hours, but due to two missed connections in Paris and São Palo this resulted in an overall arrival delay of 11,5 hours. The Folkerts brought what might appear (by now) to be a relatively straightforward claim for €600 in compensation pursuant to Article 7(1)(c) of the Regulation (flights in excess of 3,500km distance). Indeed, their case plainly falls within the ECJ’s previous ruling in Case C-402/07 Sturgeon that

passengers whose flights are delayed may rely on the right to compensation laid down in Areticle 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier [61]. Continue reading →

Akerberg and Melloni: what the ECJ said, did and may have left open

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John Morijn

In the first of two posts on the CJEU’s important recent judgments in Akerberg and Melloni, John considers the Akerberg case and in particular its interpretation of article 51(1) of the Charter of Fundamental Rights.

In dealing with Akerberg and Melloni in a coordinated way, the CJEU’s Grand Chamber took a conscious first step towards developing a general theory on how to apply the EU Charter of Fundamental Rights (CFR). First, it engaged with a long running debate about the Charter’s scope of application with regard to Member States’ actions, interpreting the article 51(1) CFR wording of “only when implementing Union law”. Second,  it interpreted article 53 CFR which states that “nothing in the CFR shall be interpreted as restricting or adversely affecting human rights … as recognised by [principally] the ECHR and by the Member States’ constitutions”.

Union law insiders will probably recognise an expansionist streak in the ECJ’s approach in the first case, Akerberg, to equate “implementing Union law” to “acting within its scope”. For (national) human rights law practioners less familiar with Union law’s subtleties and simply wondering when the now binding Charter and its sometimes higher human rights standards apply, the ECJ may have done little more than re-word the dilemma in Union law Babylonian. In the second case, Melloni, in an effort to protect its understanding of Union law, the ECJ turned the wording and rationale of article 53 CFR completely on its head, practically positioning the CFR as a maximum rather than a minimum standard of human rights protection. Both cases seem to leave room for interpretation, however, allowing details of the general theory to be ironed out in future cases. But perhaps the main message of 26 February 2013 is that the ECJ left no doubts about the institution in charge of any such future ironings out: itself. Continue reading →

Union Citizenship comes of age: Case C-46/12, LN v Styrelsen for Videregaende Uddannelser og Uddannelsesstotte

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Dr Iyiola Solanke

It is perhaps fitting that in 2013, 21 years after it was introduced in the Treaty of Maastricht, Union citizenship appears to have come of age. Although described in Grzelczyk as the ‘fundamental status of nationals of the member states’ the privileges of this status have to date primarily been enjoyed only when nationals left their member state. It complemented national citizenship rather than existed alongside it. The only exception to this rule was seen in the recent Zambrano case, where AG Sharpston suggested that stationary Union citizens should enjoy rights as well as migrant EU citizens. The Court did not affirm this reasoning in its decision but did find that the baby Zambrano citizens should not be deprived of the ‘genuine enjoyment’ of EU citizenship in their member state of birth. The Third Chamber of the CJ has now affirmed the idea that Union citizenship can be enjoyed at home. This significant shift in EU citizenship law was announced in a short judgement revolving around Mr N, a young man who was refused education finance in Denmark, a social advantage that has been considered by the Luxembourg court many times.  Continue reading →