Friday, October 29, 2010


Can William of Orange, 426 years after his death, still block the sale of the Malieveld in The Hague? Quoting wikipedia:
During the beginning of the Eighty Years' War the Haagse Bos was once again quickly shrunk to make way for more residents of The Hague. In 1571 a sixth portion of the oak forests were cut to built defenses against the Spanish army. On April 16, 1576 it was declared (in the so-called Act of Redemption) that no further cutting or sale of the forest would be permitted. This law stands today.
The continuing legal effect of Republic-era law is a notoriously tricky subject, because the Republic did not have a constitution or any kind of organised legal order, and the transition from the Republic to the current Kingdom involved several intermediary steps (Batave Republic, Kingdom of Holland and annexation to France, respectively). After 1814, most normal law from the era of the Republic was no longer valid, having been replaced by the Napoleonic codes, but every once in a while something still crops up.

So now the new government wants to cut the budget of the National Forest Administration by having them sell some of their properties, including the Malieveld in The Hague. Suddenly, it turns out that the Act of Redemption is still valid, and that it forbids the sale of any part of the Haagse Bos. I'm no expert, but I can't imagine that this is an obstacle that cannot be overcome. The only question is whether it will actually take an Act of Parliament to repeal the Act of Redemption.

The original text of the Act (source):

Alzoe Zijne Princhelicke Excellentie, mitsgaders die Eedelen ende Steden van Hollandt, representerende die Staeten van denselven lande, omme redenen henlieden daertoe bewegende, van advyse ende meyninge zijn geweest te procederen tot vercoepinge ende affhoudinghe van de Waranden ende ’t Bosch van den Haege, omme die penningen daervan commende te employeren tot dienste van den Lande ende vorderinge der gemeene saecke; ende daertegens die gemeen Suppoesten van den Hove van Hollandt ende die Magistraet van den Haeghe, uuyten name van de Gemeente ende arme Inwoenders aldaer, aenmerckende ende oick Zijne voorsz. Excellentie, mitsgaders den Staeten voornoemd verthoent hebben, bij verscheiden remonstrantien, dat ’t selffde tenderen zoude tot gantssche ruyne ende desolatie van voorsz. Vlecke van den Haege, ende consequentelicken tot bederffenisse van Gasthuijsen, Heiligegeestarmen, Wees- ende Leproeshuysen ende andere miserablen binnen denzelven Haege staende ende onthoudende, als opte huysen aldaer gerent ende gehypoteecqueert zijnde tot groote merckelicke sommen jaerlicx met meer andere redenen van beswaernissen, zoe wel by monde als in de voorsz. scriftelicke remonstrantie verhaelt, versocht hebben, ’t voorsz. Bosch ende Warande met eenige gerede penningen te moegen redimeren, doende tot dien eynde zeeckeren presentatie: Soe est dat Zyne Excellentie en de Staeten voorschreven op alles goet regardt genoemen ende rypelicken gelet hebbende, zoewel ’t gundt tot vorderinge der voorsz. gemeene Saecke als tot preservatie van de voorsz. Vlecke van den Haege, metten gevolgen van dien, soude moegen strecken, bewegen wesende tot der voorsz. thoenders ernstelicke versouck ende bede, metten selven Suppoesten ende Magistraet van den Haege geaccordeert hebben ende accorderen mits desen, dat mits bij den voorsz. thoenders, in den eersten den voorsz. Staeten voer de redemptie van ’t voorsz. Bosch ende Warande remitterende ende quytscheldende gelyckzyluyden verclaeren te remitteren ende quytschelden mitsdesen, de Clocken uuyten Haege by den voorsz. Staeten doen haelen, bedraegende ontrent ter somme van vijftien-hondert Carolus guldens, zonder daervoeren tot eeniger tijdt, den voorsz. Staten yet te mogen eysschen, ende voorts belovende, gelyck oeck die voorsz. Verthoenders bij desen beloven, dat de leeninge van penningen gedaen in handen van Mr. Heijnderick Meyster in den jaere LXXII lestleden tot behouve des gemeen Lants, blyven zal in sulcken staete ende surcheantie, als die jegenwoerdelicken wordt gehouden, sonder dat bij dengheenen, die in den voorz. jaere eenige penningen als voeren sullen hebben geleent, staende desen de oerloeghe ende troublen, ’t voorz. gemeen Landt daervan eenige restitutie sal moegen worden geeyscht, ofte dezelve ter oersaecke van dien den gemeenen Staeten moyelicken ofte lastich sullen mogen vallen; ende dat bovendien die voorscreven Suppoesten ende Lidtmaten van dien, mitsgaders die voorsz. Magistraet van den Haege, den voorsz. Staeten tot des gemeen lants behouff, aen baeren ende gereeden gelden opleggen ende betaelen sullen die somme van duijsent Carolus guldens eens; welcke somme zyluyden volgende dyen denzelven Staeten op huijden promptelicken aengetelt ende opgeleijt hebben. Zijne Excellentie en de Staeten voornoemd den voorz. Suppoesten ende Magistraet vastelicken wederomme belooft hebben ende beloven by desen, dat ’t vooz. Bosch ende Warande van den Haege daermede blijven sal geredimeert ende geaffecteert, dat men ’t selve tot geenen tijden uuijt wat saecke van necessite oft noot ’t selffde soude moegen geschieden, en zal mogen vercoepen omme offtehouden ofte doen offhouden, ten behouve van de gemeene Saecke ofte andersints, ende dat men nijet en sal gehengen ofte gedogen ’t zelve te geschieden, behoudelick ende welverstaende, dat ’t voorsz. Bosch ende Warande van den Haege sal blijven tot alsulcken gebruijck, ende service als ’t van ouden hercommen heeft gestaen, ende dat by kennisse van die van de Reeckeninge ende den Rentmeester Generael van Noorthollandt naer ouder gewoente.

Gedaen tot delff den XVI Aprilis XVc sessent zeventich ende was ondergeteijckent Guillaume de Nassou.

Onder stont gescreven: Ter ordonnantie van de staeten, by my, onderteyckent C. de Rechtere.

Hebbende opgedruct Zijne Princhelyke Excellentie groot Segel, ende daerbeneffens ’t Segel van de Staeten van Hollandt.

This Week in Luxembourg

This week's Grand Chamber ruling concerns Council Decision 2008/633 "concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences". Is this a Schengen measure, meaning that the UK does not get to play, or a JHA measure? Applying fairly straightforward structural logic, the ECJ holds that the Decision was correctly taken under the Schengen acquis. UK v. Council.

The First Chamber agreed with AG Sharpston and the Commission that Lithuania should have revoked its pre-accession authorisation of a product called Grasalva under - inter alia - Directive 2001/83 on the Community Code relating to medicinal products for human use. Commission v. Lithuania

The First Chamber also had a case about art. 18(a) of Directive 86/653 on self-employed commercial agents. The question was whether they still had to pay a goodwill indemnity (cf. art. 17(2) of the Directive) if the contract is terminated with notice, followed by a default during that notice period that would have entitled the principal to terminate immediately under art. 18(a) of the Directive. The ECJ now ruled that the indemnity still has to be paid. Volvo Car Germany

In the competition cases of ThyssenKrupp (NL, FR) and ArcelorMittal (FR), AG Bot discusses some interesting nulla poena issues relating to the expiration of the ECSC Treaty in 2002. In the end he concludes that the CFI was right to let the Commission's Decisions stand. However, in both cases there are problems with the attribution of the infringement to one company or another within the group at different moments in time, and with the relevant limitations periods. (Cf. art. 25 and 26 of Regulation 1/2003.) For this reason, the AG suggests partial annullment.

In the General Court, there was some more fun with attributability/single economic entity, this time regarding a cartel in the Spanish raw tobacco market. In the end, the court concluded that the Commission got it wrong as to one of the applicants. While they had the opportunity to direct the business of the company they owned a large majority share in, there was no evidence that they actually did. Alliance One.

Also in the General Court, Germany and the Commission had a disagreement about the application of art. 32 of Regulation 1290/2005, which deals with "irregularities" in the Common Agricultural Policy. The fun of this provision is in section (5), which makes the MS liable for 50% of the sums wrongly paid if they haven't recovered them yet after four years. After some haggling over cutoff dates and a "unilateral Commission undertaking annexed to the minutes of a Coreper meeting" (!), the General Court (Second Chamber) finds for the Commission. Germany v. Commission.

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

Tuesday, October 26, 2010

Campione d’Italia

It's probably not even legally relevant, but how awesome is it that the applicant in the first ECtHR terrorism sanctions case just happens to live in a tiny speck of Italy within the Swiss canton of Ticino? The Swiss won't let him enter their country, so he hasn't been able to leave the 1,6 square km of land that make up his home town for nine years now. Campione d'Italia is located on the southern/eastern shore of lake Lugano, less than 1 km away from Italy in a straight line. It has about 2200 inhabitants, including Youssef Mustafa Nada.

Google Maps (Satellite view)

As to the substance of this case, I don't even agree with the ECJ's handling of this problem, where I prefer the approach of the General Court, as recently reiterated in their Kadi-II ruling:

115 More fundamentally, certain doubts may have been voiced in legal circles as to whether the judgment of the Court of Justice in Kadi is wholly consistent with, on the one hand, international law and, more particularly, Articles 25 and 103 of the Charter of the United Nations and, on the other hand, the EC and EU Treaties, and more particularly Article 177(3) EC, Articles 297 EC and 307 EC, Article 11(1) EU and Article 19(2) EU (see, also Article 3(5) TEU and Article 21(1) and (2) TEU, as well as declaration No 13 of the Conference of the representatives of the Governments of the Member States concerning the common foreign and security policy annexed to the Treaty of Lisbon, which stresses that ‘the [EU] and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security council and of its members for the maintenance of international peace and security’.

[Detailed discussion of the criticism omitted for brevity.]

121 The General Court acknowledges that those criticisms are not entirely without foundation.
It follows that I think the ECtHR should certainly not pretend that it has the jurisdiction to review the conformity of a Security Council Resolution with the principles of human rights. That is not to say that they should uphold the Swiss policy here, but if they do not, they should emphasise that they have only examined the conformity of said policy with the ECHR, not its overall lawfulness.

Fokke & Sukke

How hard can it be to translate some (non-topical) Fokke & Sukke cartoons into English? It's not like it's a serial, where you have to know the back story to make sense of it. Here's a few that I found elsewhere on the internets:

Friday, October 22, 2010

Penalty Payments 4 Jesus

Here's a question:

Homeowner paints a giant message on the roof of his farm, saying "Jesus saves". (Not that the content of the message is legally relevant, but it goes to motivation.) The municipality decides that it is a zoning violation, in the sense that it is ugly and therefore in violation of the zoning codes that say what you can and cannot do with your house, for the greater living enjoyment of all. The homeowner seeks annullment and loses. (Well, he loses partially. Technically, the court annulled the decision, but not on freedom of speech grounds, but on motivation grounds. As a result, the municipality was able to simple take the same decision again, only with a better explanation.) The homeowner appeals to the Council of State, and loses again. The verdict of the courts is simple: he has to take down the message or forfeit a penalty payment of € 500 a week, with a maximum of € 15.000.

Now here comes the tricky part (even more tricky than the conflict between zoning regulations and freedom of religion, which is actually easy enough as the recent early morning church bells case shows):

Instead of taking down his message, the homeowner paints it red and orange, compared to the original white. Question: Can the municipality still forfeit the penalty payments? Or does it have to litigate the case all over again?

Normally, the colour of the message would be an irrelevant detail. If he had written something defamatory or otherwise offensive on the roof, the penalty payment would still be forfeited after the second paint job. But in this case, the esthetic quality of the paint job was the entire basis of the municipality's argument. As a result, it is understandable that the court in Dordrecht ruled today that, while the homeowner's freedom of religion argument is covered by issue estoppel and can therefore not be relitigated, the municipality has to take a new decision concerning the new colour scheme, which will then undoubtedly be subject to renewed litigation.

Clever huh?

P.S. The title of this post is obviously based on the famous American Supreme Court "Bong Hits 4 Jesus" case, otherwise known as Morse v. Frederick (2007). It should be noted that, despite its name, that case was not actually about religious speech. Instead it was about speech in a school setting.

Thursday, October 21, 2010

New Inter-Institutional Agreement

I can see why the Council Legal Service would be ill at ease with the new Commission-Parliament Inter-Institutional Agreement. (The Legal Service Opinion about a draft version of this IIA is here.) While I would have to consider more carefully whether I think any specific provision actually violates the Treaties, it is certainly true that the whole thing breathes an air of Europhilia, without the Euroscepticism that the Council usually brings to the table. Without the reality check of a COREPER discussion, one would naturally expect the document to display a bias in the direction of treating the EP like a regular parliament, which indeed it does. Chapter II, for example, seeks to establish a relationship of ministerial responsibility between the Commission and the Parliament, even though it pays lip service to the fact that only the President of the Commission can dismiss an individual Commissioner. (par. 2-8 and 45-50). Similarly, the EP is to be involved in various ways in the negotiation of international agreements (par. 23-29 and Annex 3), in budgetary implementation (par. 30-31), in Commission meetings with experts (Annex 1), and in infringement suits against Member States (par. 44 and Annex II par 1.5).

On the whole, the Council Legal Service is certainly correct to remark that "[t]here is a clear lack of balance between the number of commitments made by the Commission to the European Parliament and the number of commitments made in turn by the latter" (fn. 5 of its opinion). On the other hand, virtually all the commitments contained in the IIA are either purely political, or at least political in their effects. I'm not sure that it is unlawful for the Commission to yield some of its political power to the Parliament. While the legal balance of powers is certainly enshrined in the Treaties, I'm not so sure that the political balance of powers is, too.

Finally, I'm content to see the European Parliament once again interested in implementation. While I was in Brussels, I had the great pleasure to attend a hearing on the topic organised by then-Green co-chair Monica Frassoni (cf. her EP profile here) in her capacity as a member of the JURI Committee, who seemed to have a refreshingly practical interest in wondering what happened to EU legislation after the EP was done with it. (Cf. the resulting rapport here.) Unfortunately, there is no proof that I was there, since I seem to have written Aidan Feeney's name on the attendance list (cf. the end of the minutes). What can I say, it was only the first month of my stage, so I didn't have the nerve yet to put down my own name. But I assure you that there is absolutely zero chance that the legendary Mr. Feeney was there, given that the hearing did not concern anything remotely codecision related.

Russia 1910

Look at these amazing colour pictures of Russia 1909-1910.

Just an example:

Pinkhus Karlinskii, eighty-four years old with sixty-six years of service. Supervisor of Chernigov floodgate, part of the Mariinskii Canal system. Photo taken in 1909. (Prokudin-Gorskii Collection/LOC)

This Week in Luxembourg


The big case this week is the European Arrest Warrant case of I.B. The question concerns in absentia trials. Under art. 4(6) of the Framework Decision, the executing MS may elect to lock the (resident) person up themselves instead of sending him (back) to the issuing MS. But what if they want to send him back only so that he can have a full trial, but want him back afterwards? Do art. 4(6), 5(1) and 5(3) of the Framework Decision allow that? Following AG Cruz Villlalón, the Fourth Chamber now rules that Belgium is indeed allowed to ask Romania to send the gentleman back if found guilty as a condition for surrender. I.B.

In Eredics, the Second Chamber considers whether legal persons can count as victims within the meaning of the Council Framework Decision on the Standing of Victims in Criminal Cases (Framework Decision 2001/220/JHA), and specifically its art. 10(1) on mediation. Given the express wording of art. 1(a) of the Decision, that is a no go. Only natural persons count. However, given that Hungarian law does allow legal persons access to such mediation, the ECJ still gives some guidance on how art. 10 is supposed to work. (cf. par. 33)

In Greece, they have a law that allows the television and radio regulator to impose a fine jointly and severally on the station and on its shareholders. It defends this arrangement under the first Council Directive 68/151, enacted under what is now art. 50(2)(g) TFEU. The Court agrees that there is nothing in that Directive forbidding the Greek approach, but holds that the Greek law violates art. 49 and 63 TFEU, i.e. the general restablishment and capital articles. Idryma Typou

The Third Chamber took a look at art. 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, which deals with the private use exception to copyrights. The question concerns the nature of the "fair compensation" referred to, which is now held to be an autonomous concept of EU law, reflecting a fair balance between the harm caused to authors and the interests of the private person. All of this in the context of a Spanish case about copying levies on "digital reproduction equipment". SGAE.

In the Cypriotic case of Symvoulio Apochetefseon Lefkosias, there are some issues about the right of judicial review on the side of the contracting authority (as opposed to the more common case of the private tenderer seeking judicial review). The Third Chamber now holds that contracting authorities do not have to be given access to judicial review "of the decisions of non-judicial bodies responsible for review procedures concerning the award of public contracts". Cf. art. 2(8) of Directive 89/665.

According to AG Jääskinen, pharmaceutical companies are allowed to mention results from research in their advertising, even if those results aren't part of the summary of product characteristics (cf. art. 11 of Directive 2001/83). What they're obviously not allowed to do is mention results that contradict (or are contradicted by) that summary. (cf. art. 87(2) of the Directive). Novo Nordisk (DE, FR)

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

Monday, October 18, 2010

Liberals and Social-Democrats

I'm sure plenty of people have written about it in the past, but it still remains an interesting topic to ponder: How are American liberals (i.e. the Democratic Party) different from their alleged European brethren (i.e. the social-democrats)? And why?

One "why" is obvious: Separation of powers. The uniquely drastic separation between executive and legislature in the US is a problem particularly for many "liberal" policies, including health insurance. In other jurisdictions such policies usually involve a great deal of delegated legislation, something that is difficult in the US. As a result, any reform effort invariably gets bogged down in the details of 2000 page monstrosities. (Which, incidentally, is also due to another important institutional factor: single seat constituencies, meaning independent mandates and greater incentives for rent seeking on the part of the individual legislator.)

Another "why" is one of history. While it is hardly my area of expertise, I know enough to know that the position of unions is drastically different in the US, and in many ways much more precarious. As a result, they have an outsider's position similar to their French brethren. (I read a beautiful analysis recently about the French propensity to strike, as explained from the traditional French distance between the unions and the halls of power, as compared with the Dutch and German systems, where there is more consultation between the government and the unions. Unfortunately, however, I can't find it anymore, so I can't link to it.) This, in turn, causes them to rely more on the methods of conflict - and to resist attempts to curtail their ability to rely on such methods - than on the methods of consensus. What many European social-democrats have in common with their christian-democratic cousins is their reliance on consensus and consultation. In the jargon of the Dutch christian-democrats, unions are part of the "maatschappelijk middenveld", the middle ground between government and society. In such a corporatist/syndicalist society, there is no reason for unions to go on strike (which Dutch and German unions rarely do), and there is no reason for the government to unilaterally regulate every aspect of everyone's behaviour. Instead, they make a million different "covenants", whereby everybody promises to act in good faith based on certain general principles.

To be continued when I have more thoughts...

UPDATE: This BBC article discusses some of the history points I mentioned.

P.S. Another interesting topic to look into: European courts often treat human rights issues from a proportionality perspective: Is the infringement of right X proportionate to goal Y? An case in point is the burqa ban decision of the French Constitutional Council. In the US, this issue is resolved with levels of scrutiny: rational basis review for the little sins, intermediate scrutiny for the whatever-inbetween category, and strict scrutiny for things like core free speech and discrimination based on a suspect classification. So I've been wondering: substantively, is there a lot of difference between these approaches? Do they actually lead to different outcomes? Or is it a different way to phrase the same question?

Thursday, October 14, 2010

This Week in Luxembourg

The Third Chamber denied the appeal of Deutsche Telekom, just like AG Mazák had recommended. (The CFI's ruling is here.) This means that the EU will continue to have two different state agencies supervising regulated industries: the regulator and the Commission's DG Comp (or the national competition authority, of course). Deutsche Telekom could not derive a legitimate expectation of legality from the German Regulator's approval of its pricing scheme. (par. 97-110) Deutsche Telekom v. Commission. (At some point I'm going to write more about this case, I promise.)

UPDATE: There is a post about this case here. It should be noted that I left out the actual substance of the case (i.e. the alleged margin squeeze) on purpose. I don't think that it is the most interesting aspect of the case, being highly fact-specific, and it didn't fit in the limited space that I like to use for any one case. It will however appear in my paper about this case, as it did in the earlier draft paper.

The Grand Chamber this week considered problems of age discrimination, retirement and severance in the German case of Rosenbladt and the Danish Andersen case. Much to the relief of everyone (except me), the Court did not invalidate the mandatory retirement age.

In Nuova Agricast and Cofra v. Commission, the First Chamber sorted out an Italian state aid mess in the context of a damages claim against the Commission. In the middle of it all there an interesting question of legal certainty.

[UPDATE: has a post about this case.]

AG Sharpston has an opinion on the law of nobility in EU citizenship law. Austria has always been rather harsh in its rejection of noble titles. (Former nobles aren't even allowed the prefix "von" or "zu".) The AG now argues that the public policy arguments behind this rule are capable of justifying a certain amount of free movement inconvenience, but only to a point. As a final cherry on the pie, there's also a problem about surnames and titles that vary depending on the sex of the person, which of course gets all the Slavic countries very excited. Ilonka Sayn-Wittgenstein.

[UPDATE: has a post about this case.]

AG Bot has an opinion on the patentability of Graphical User Interfaces under Directive 91/250, the software patent directive. He doesn't think they are patentable under that directive, but he does think that they are capable of being copyrighted under Directive 2001/29. Bezpečnostní softwarová asociace – Svaz softwarové ochrany v. Ministerstvo kultury (NL, DE, FR)

Finally, AG Kokott has an Aarhus Convention case, specifically an access to documents case under Directive 2003/4. In this case, the information is requested by the City of Lyon, though that is legally irrelevant. The city wants information about the sale of emission rights by certain district heating companies, because they're trying to decide who to award a concession to. She concludes that the Caisse des dépôts et consignations was justified in rejecting access until after the five year confidentiality period of art 10 of Commission Regulation 2216/2004 was over. Ville de Lyon (NL, DE, FR)

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

Friday, October 08, 2010

Comité interprofessionnel du vin de Champagne v. Unilever

Today's ruling in Comité interprofessionnel du vin de Champagne v. Unilever is interesting exactly for what it assumes rather than deciding. In par. 4.1 we find:

Niet in geschil is dat Unilever door het verhandelen van de Champagne shampoo inbreuk heeft gemaakt op de beschermde oorsprongsbenaming Champagne in de zin van artikel 118 quaterdecies van “Verordening 491/2009” (de voorzieningenrechter begrijpt: Verordening 1234/2007 zoals die luidt na wijziging door Verordening 491/2009).

Meaning (my translation):

Not in contention is that Unilever has infringed on the Protected Indication of Origin Champagne by selling Champagne shampoo, as forbidden by art. 118m of Regulation 491/2009 (the Court in Expedited Procedure understands: Regulation 1234/2007 as it is after amendment by Regulation 491/2009).

Given that parties seem to have stipulated to this fact, the rest of the ruling is quite straightforward. CIVC gets its injunction, backed up by a penalty payment of € 5.000 per day, with a maximum of € 500.000.

Based on the text of that provision, it is not surprising that the actual infringement was not incontention. It reads:

Article 118m

1. Protected designations of origins and protected geographical indications may be used by any operator marketing a wine which has been produced in conformity with the corresponding product specification.
2. Protected designations of origins and protected geographical indications and the wines using those protected names in conformity with the product specification shall be protected against:
(a) any direct or indirect commercial use of a protected name:
(i) by comparable products not complying with the product specification of the protected name; or
(ii) in so far as such use exploits the reputation of a designation of origin or a geographical indication;
(b) any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation”, “flavour”, “like” or similar;
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to the wine product concerned, and the packing of the product in a container liable to convey a false impression as to its origin;
(d) any other practice liable to mislead the consumer as to the true origin of the product.


This is a surprisingly broad provision, given that we're talking about PDOs and PGIs here, not trademarks. It seems to allow not only direct infringement proceedings, but also dilution claims of the kind brought by CIVC here. I'm not sure that I agree with the rationale for such a high level of protection. Of course, users of PDOs, just like trademark holders, invest in brand capital, and are entitled to see that investment protected by the courts, but unlike trademarks PDOs are a collective good, meaning that its users will have a much smaller investment. Also, PDOs are in a real sense a gift from the legislature; it is about truth in advertising as much as about trademark law.

For these reasons, I would consider the damage done to the Champagne PGI by the introduction of Champagne shampoo much smaller than the damage that would be done if Unilever introduced Chanel shampoo. (Assuming Chanel aren't in the shampoo business themselves, which they may well be.) Given that these laws are about a balance of equities between the users of the PDO or PGI on the one hand and the company that would like to use the designation in question on the other hand, I would have favoured a more narrow protection for PDOs in this regard.

Of course, given that the entire 56 page Regulation, like the 149-page original, is devoted to "establishing a common organisation of agricultural markets and (...) specific provisions for certain agricultural products", it is easy to see how this generous protection came about, but that doesn't make it any less unfortunate.

French Burqa Ban Constitutional

Unencumbered by any real knowledge of French constitutional law, I note simply that the Conseil Constitutionnel decided today that the law forbidding the hiding of one's face in the public space was in conformity with the constitution, except as applied to places of worship, which seems like a reasonable restriction. (I wonder why that exception wasn't included in the original law.)

Apart from its own case law and two cases from the Conseil d'État, the Council refers to four ECtHR cases:

Kokkinakis is a case about proselytising Jehova's Witnesses in Greece, which was apparently a crime. This law was held (6-3) to be in violation of art. 9 freedom of religion. It was cited as authority for the proposition that the freedom of religion implies more than only the freedom to have a religion, i.e. that it includes the "freedom to "manifest [one's] religion". Bearing witness in words and deeds is bound up with the existence of religious convictions."

Arslan, which concerned a terrorism suspect who refused to take of his turban in court, as well as the headscarf cases of Şahin and Dogru are obvious precedents to consider if you're trying to figure out how to do the proportionality analysis in these circumstances. However, the strange thing is that the Council seems to cite them more for the scope of the freedom of religion in the first place, which seems to be covered by Kokkinakis just fine. For proportionality, it cites only its own case law.

As a matter of ECHR law, it seems like quite a stretch to go from Turkish dresscode cases, which are clearly to some extent unique to Turkey, and a case about headscarves in gym class, to a ban on covering one's face in public. Judging from the ruling, which is as terse as always, it seems like the only way they got there is because they asked whether the law was "manifestly disproprotionate" to the goals pursued. (par. 5) This is a very deferential test, one that may well be more deferential than the "margin of appreciation" that the ECtHR tends to give the High Contracting Parties.

I suppose we shall see what the Strasbourg court will do...

P.S. One of the CDE cases they referred to is my beloved Dwarf Tossing Case! (Which clarifies to what extent human dignity, as an element of public order, is sufficient to justify government intervention.)

UPDATE: Not everybody's a fan.

Thursday, October 07, 2010


Seriously??? Sustainable gold?

Here's a free tip from me to you: if you want people to live in a more sustainable manner, get your priorities straight. The last thing you want is to create a movement that seems to have no other goals than to take away every ounce of fun people might actually have. You can't be, or appear to be, against every single thing that people derive enjoyment from. Somehow it has to be balanced out.

One place to start would be to distinguish between planet-sustainability and people-sustainability. (To borrow the age-old adage of People, Planet, Profit.) The objection these people seem to have against the way gold is ordinarily produced seems to involve both "people" and "planet". They don't like the way gold mining ruins the environment, they don't like the way gold mining hurts the health of the miners, and they don't like how little these miners earn.

This is a problem because it makes me much less sympathetic for their cause. As a general rule, I would suggest that those three concerns widely differ in the extent to which people in the West will care, with the environment ("planet") easily beating out the interests of the miners ("people"). Personally, I'd certainly care more about the "planet" that can't speak for itself than about the workers who are making the best of a difficult situation. Not buying the gold they produce will only make them worse off; the only way to improve their lot it to support their efforts at collective bargaining and, more importantly, to help them improve the rule of law in their countries. Trying to get Western consumers to pay a "White Liberal Guilt" Premium on their gold is hardly the solution.

This Week in Luxembourg

The Grand Chamber declined to follow AG Cruz Villalón's revolutionary proposal to overturn the Rheinmühlen/Cartesio doctrine. When a MS court is faced with a case that has been referred back by a higher court, EU law trumps that higher court's instructions. Personally, I think this is unfortunate, but I don't get a vote. Elchinov v. Natsionalna zdravnoosiguritelna kasa. (Cf. below.)

In Commission v. France, the Grand Chamber pushed back (a little) the law on free movement of medical services. The French system of prior authorisation is permitted under Community Law. The Bulgarian scheme at issue in Elchinov, on the other hand, went too far and was found to violate art. 49 EC/56 TFEU and art. 22 and 36 of Regulation 1408/71. Particularly the latter case gives some useful guidance on the state of the law in this area, for those who might be interested.

On Wednesday, the 4th Chamber handed down two judgement about universal service obligations and electronic communications in Belgium. It held that it is (theoretically) permissible for the legislature to designate itself the National Regulatory Agency under art. 2(g) of Directive 2002/21, as long as the requirements of art. 3 are met. It also held that art. 13 of Directive 2002/22 requires a specific examination of the circumstances of the undertaking that is allegedly subject to an "unfair burden". The net result is that Belgacom, the old incumbent, loses. Commission v. Belgium and Base. (Cf. De Standaard.)

On Thursday, Portugal was found (by the 3rd chamber) to have failed to adequately transpose that same Directive 2002/22. Apparently, they've been a bit cavalier about their universal service obligations, which still lie with the old incumbent, but without the kind of legal framework and official findings required by the USO Directive. (cf. art. 3(2) and 8(2)) Commission v. Portugal (FR)

In Lassal, the 3rd Chamber illuminated the retroactive effect of Directive 2004/38, the general free movement of persons directive. The answer is that, yes, a continuous period of 5 years residence (cf. art. 16(1)) still counts if it was completed before the date of transposition of the directive. Once that 5 year residence period is completed, only an absence of 2 consecutive years or more can make a person lose their right of residence. (Cf. art. 16(4)).

AG Sharpston was surprisingly forgiving about Spain's (and Catalunya's) "anti-Wall Mart" law. They have a licensing scheme in place for "large retail establishments". Instead of striking it down in one fell swoop as a violation of the freedom of establishment (albeit based on indirect discrimination), she goes over it one aspect at a time to see if it is justified. As a result, she concludes that some parts are OK, while others are not. Commission v. Spain.

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

Tuesday, October 05, 2010


Today the Grand Chamber of the European Court of Justice ruled in Елчинов v. Национална здравноосигурителна каса, or, in Latin script, Elchinov v. Natsionalna zdravnoosiguritelna kasa. Just like today's other Grand Chamber case, Commission v. France, it was a case about the free movement of medical services, including Regulation 1408/71. The French won, the Bulgarians didn't. (For more facts on Elchinov, cf. here.)

However, there is something special about Elchinov beyond this medical services stuff. The brand new Advocate General Cruz Villalón used it to advocate for the Court to overturn a 37 year old precedent: Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel. (And yes, 37 years is pretty old for an ECJ precedent.) In Rheinmühlen - a case ruled in a time when both the answers and the questions were still simple - the ECJ held that:


In Elchinov that meant that the referring court, the administrative court of Sofia-grad, was bound under Bulgarian law by the ruling on points of law of the Supreme Administrative Court, which had considered the case and had referred the matter back to the lower court for further consideration consistent with its ruling. At the same time, however, the referring court had the right, under Rheinmühlen, to ignore the binding force of the Върховният административен съд's ruling and ask a prejudicial question. (Which presumably the SAC should have done, but didn't.)

The AG argued that there was no reason to disturb the distribution of power between the lower and the higher court, since it is a matter of Bulgarian procedural law. If there is a prejudicial question to be asked, it is the obligation of the higher court to ask it. (This obligation flows directly from art. 267(3) TFEU if the higher court is also the highest court, as it was here.) If the higher court fails to ask such a question, remedies are available under Francovich and under Brasserie du Pêcheur & Factortame. Sensible federalism implies that we do not mess with the constitutional arrangements of the Member States unless it is absolutely necessary, and it does not appear to be necessary here, at least not anymore, as AdjudicatingEurope puts it.

The Grand Chamber today disagreed. It argued that the competence to ask a prejudicial question flows directly from the Treaty, meaning that no rule of national law may interfere with it. In fact, given the primacy of EU law, the lower court may even ignore the higher court's ruling without first asking a prejudicial question. (The ECJ cites Kücükdeveci, par. 54-55 for this proposition.) The result is that the ECJ will continue to undermine the authority of MS Supreme Courts over their inferior courts. All MS courts will receive in equal measure the wisdom of Luxembourg dicta, without the Court favouring higher courts over lower ones, that is to say without any kind of pluralist dialogue.

(Remember, under the AG's preferred rule, if a MS lower court were faced with - in its view - conflicting precedents from its own higher court and from Luxembourg, its first instinct should and would have been to try to reconcile the two through some form of Community law conform interpretation of the national law. That is to say, there would be some attempt at a compromise, instead of the current system of CYA.)

Voluntary Fire Department

Here's a question: can the fire department work on a voluntary basis? I'm not talking about a voluntary fire brigade, but about their customers. Is it possible to create a fire department that only services those that first contract with it for the privilige? In Obion County, Tennessee they seem to have done just that. As a result, last week "firefighters watche[d] as home burn[ed] to the ground".

As a first approximation, the answer is simple: it can be done as long as there aren't too many externalities from house fires. If a fire in one house, unchecked, causes other homes to burn as well, mandatory fire services are the only solution. However, if the houses are far enough apart, as seems to have been the case here, there is no objection to making the fire department optional, except possibly the moral one that society should always come to the aid of people trapped in burning buildings, even if they are trapped there by their own laziness or selfishness.

A more interesting question - also useful for microeconomics 101 exams - is what to make of the offer to pay "whatever the cost" if the firefighters would come immediately. In the comments to the Volokh Conspiracy post about this story, Sasha Volokh gives - I think - the correct answer:

The fire department could have said “$75 per unit of time for insurance OR
$10,000 if you need protection on the spot.” But the amount for spot protection
had better be pretty high, or else you’ll see people systematically forgo the
insurance and just pay on the spot. Just like with optional insurance generally,
you can see unraveling (or just inefficient development) of the insurance market
by adverse selection; only since the price of spot protection is going to have
to be lower than the actual cost of losing your house in a fire, the problem
will probably be worse.

Of course, this is all well and good but how do you recover this fee from someone whose house just burned down?

UPDATE: Krugman heard about this story too, and he doesn't like it. He compares it, somewhat implausibly, to the health care debate. I don't see how that analogy can work: surely there is a difference between allowing someone's house to burn down and denying them medical care?

Friday, October 01, 2010


Surprisingly few people seem to be complaining about AG Kokott's - euh - unfortunate insurance opinion from yesterday. (link) Most reports seem to simply accept that this kind of excessive political correctness is what passes for EU law these days, never mind that she had to (propose to) annul an explicit provision of EU law to reach her preferred conclusion.

De Standaard (Dutch), after all, it is a Belgian case.


Wall Street Journal

NRC Handelsblad (Dutch)


Like with the German word geil, I can't help but laugh every time I see the French talking about colère. For a Dutch speaker, both words are always going to be unavoidably funny.

(And yes, last Saturday, 11 days after the event, the Jean Quatremer was still angry about Commissioner Reading's Nazi comparison, his usual left-wing tendencies notwitstanding. To make matters worse, she said it in English! [Warning: that article also talks about colère.])