Mustafic II

A quick update on Mustafic: In the recent judgement of Al-Jedda, it seems that the Grand Chamber of the European Court of Human Rights at least considered the possiblity that the UN and the coalition might have both been the "principal" of the coalition forces in Iraq:

80. The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations. The Multi-National Force had been present in Iraq since the invasion and had been recognised already in Resolution 1483, which welcomed the willingness of Member States to contribute personnel. The unified command structure over the force, established from the start of the invasion by the United States and United Kingdom, was not changed as a result of Resolution 1511. Moreover, the United States and the United Kingdom, through the Coalition Provisional Authority which they had established at the start of the occupation, continued to exercise the powers of government in Iraq. Although the United States was requested to report periodically to the Security Council about the activities of the Multi National Force, the United Nations did not, thereby, assume any degree of control over either the force or any other of the executive functions of the Coalition Provisional Authority.

Cf. Marko Milanovic's writeup of this case and the related case of Al-Skeini on EJIL:Talk!

This Week in Luxembourg

These are (some of) the last opinions issued by the Court before its August break:

In Synthon BV v. Merz Pharma and in Generics (UK) Ltd. v. Synaptech, the Second Chamber held that “a product (…), which has been placed on the market in the Community as a medicinal product for human use before obtaining a marketing authorisation in accordance with Directive 65/65, and, in particular, without undergoing safety and efficacy testing, is not within the scope of Regulation 1768/92 and can not therefore be the subject of [a Supplementary Protection Certificate].” In both cases, the product predated all of the relevant legislation.

In other pharma news, the First Chamber put a stop to an attempt by Merck, Sharp & Dohme to get yet more power over the value chain out of its trademarks. The story is a bit complicated, but it has to do with authorisation for repackaging in the process of parallel imports and the question who should be listed on the box as the repackager: the company that physically does it or the company that instructed it to be done and that is legally liable. It is the latter, or at least Merck aren’t allowed to say otherwise. Orifarm et al. v. Merck, Sharp & Dohme

In some Privileges & Immunities fun, the Fifth Chamber ruled that Finland were not allowed to say that Lotta Gistö was no longer a resident for tax purposes, just because she moved to Luxembourg because her husband works there as a translator for the EU. This might be different if she had gainful employment in Luxembourg, but as long as she does not, art. 14 of the Protocol on the Privileges and Immunities of the European Communities requires Finland to keep treating her as resident in Finland for tax purposes. Lotta Gistö

To the surprise of absolutely no one who has ever been in Belgium, the various Belgian governments did not manage to transpose Directive 2005/81 in time, insofar as it applies to the financing of the various public television stations (i.e. VRT and RTBF). Too many different parliaments having to pass too many pieces of sensitive legislation. However, the matter does appear to be arranged now. Commission v. Belgium (FR)

In an Aarhus case, the Third Chamber reiterated that a public authority may cumulate refusal factors in order to explain why it is denying an access to documents request, even when no individual exception would be sufficient. Office of Communications v. Information Commissioner

Finally, in an asylum law case, the Second Chamber ruled that it is not necessary for Luxembourg to allow separate judicial review of the national authority’s decision to employ the accelerated procedure, as long as the propriety of this decision can later be examined in the judicial review of its ultimate decision on the merits. Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration

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

This Week in Luxembourg

The First Chamber issued another big pro-transparency judgement this week. In the appeal in Sweden and MyTravel v. Commission, the Court upheld the appeal, dismissing the legal advice and protection of decision making process arguments relied upon by the Commission. Put simply: problems for future decision making have to be shown, and it's not legal advice unless there is a specific court case you're advising on. In March, AG Kokott had already reached the same conclusion. The case is party referred back to the General Court.

The Second Chamber refused an argument of abus de droit where a Turkish national lawfully resident in the UK started a business there in violation of his residence permit, and then claimed the right to say in the UK under art. 41 of the 1970 Additional Protocol. I'm not sure that I follow the argument, but OK. Oguz v. Home Secretary In another Turkish case, Ünal, AG Sharpston argues that the Dutch may not retroactively take away the applicant's residence permit absent a showing of fraud. (Meaning that his 1 year lawful employment is still lawful.)

Can you build wind-turbines (cf. Directive 2001/77 and Directive 2009/28) in an area that is protected under the Birds Directive or the Habitats Directive? The First Chamber concluded that Italy was entitled to forbid the construction of wind turbines not intended for self-consumption in such areas even without any kind of environmental impact study, as long as the do so in a manner that is proportionate and non-discriminatory. Azienda Agro-Zootecnica Franchini and Eolica di Altamura v. Regione Puglia

In a - for once - vertical discrimination directive case, the Second Chamber is letting the German Land Hessen have its somewhat flexible (and therefore potentially discriminatory) retirement law for civil servants. (As long as it is appropriate and necessary, etc.) Fuchs and Köhler v. Land Hessen

The Second Chamber also dismissed the appeal in the Italian preferential electricity tariffs state aid case of Alcoa Trasformazioni v. Commission, while the Sixth Chamber rejected the appeal in the DHL Leipzig/Halle state aid case of Freistaat Sachsen and Land Sachsen-Anhalt v. Commission (DE, FR).

In Telefónica de España v. Administración del Estado, the Seventh Chamber approved a Spanish administrative charge on telecom companies, as long as the total amount collected does not exceed the administrative costs incurred.

AG Cruz Villalón looked at the Italian market for day-ahead and intraday electricity, specifically the legally mandated power of the network company over the producers. He concludes that there are certain unusual aspects to this system, but that it passes muster as long as certain conditions are met. It will be interesting to see what the ECJ does with this case. ENEL v. Autorità per l'energia e per il gas (NL, DE, IT, FR)

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

Florence & Firenze

Sometimes, the internet can be really satisfying. We've all gotten used to the ease of finding out the answers to easy questions, that is to say questions that have been made easy by the internet. But sometimes, every once in a while, the internet gives you an answer that by all normal logic shouldn't be easy at all. Like this one: why does the entire world call Florence Florence, or something resembling Florence, except the Italians? It is normal for different languages to have different names for certain places, but it seems really odd for Italian to be so drastically the odd one out when it comes to the very place where Italian was invented. So why is that? Florence sounds kind of French, but the French didn't come to Italy until the time of Machiavelli, while the Florentine coins were known as Florins centuries before then, so that can't be it.

This seems like a question that doesn't come with any obvious search terms. The English wiki-page talks about Florence, and the Italian one about Firenze. Never the twain shall meet. And yet, there it is, in the very first line of the English wiki:

Florence (Italian: Firenze [fiˈrɛntse] ( listen), alternate obsolete form: Fiorenza; Latin: Florentia)

In other words: we start with a Roman colony called Florentia (the region was of course Etruscan before it was Roman, but the Etruscans preferred to build their cities on tops of hills, which is why they founded Fiesole instead). After centuries of vulgate Latin and Italian, this l becomes an i, giving us "Fiorenza" and, to this day, Fiorentina. From there, it is easy to see why the Italians might drop the awkward o to end up with Firenza/Firenze. (The latter is the plural, if my memory of Italian grammar is correct. I'm not sure why the town would have a name in plural, though.)

Meanwhile, the rest of the world stuck with the original Latin, where Florentia becomes Florence in France, and via there in the rest of the world as well. Easy as pie. In fact, even in the internet age this was surprisingly easy.

This Week in Luxembourg

This week's Grand Chamber ruling is a bit of a long story. The upshot is, though, that perfume companies can sue online auction sites like Ebay, as well as the sellers who use them, for trademark infringement for selling perfume samples into the EU. In the process of so holding, the Court relies on and develops both the Google Adwords case law and the earlier L'Oreal case and its progeny. L'Oreal et al. v. Ebay et al.

In 2002, Italy suffered some natural disaster, which the government tried to repair by providing compensation. This compensation was not directly linked to the damage incurred, however, but to a proxy: the difference between 2002 and previous yeaars in the volume of investments. In October 2004, the Commission concluded that this was unlawful state aid, and Italy did not seek annullment. Now, in July 2011, Italy has still not completely complied. (FR, IT)

More fun with PGIs and trademarks: Bureau national interprofessionnel du Cognac v. Gust. Ranin Oy

AG Sharpston concludes for dismissal in the latest round of PMOI litigation. In other words: The Terrorists Win! France v. PMOI

In Seaport (NI) et al. v. Department of the Environment for Northern Ireland, AG Bot explores separation of powers & environmental impact assessments under Directive 2001/42. Oddly enough, he is not thrilled about the idea of government entities consulting with themselves for the purposes of art. 6 of the Directive.

In Medeva, AG Trstenjak makes some undoubtedly fascinating observations about the grant of supplementary protection certificates for medicinal products under Regulation 469/2009, in particular when it comes to multi-disease vaccines.

This week the General Court handed down a whole stack of competition law judgements. It declined to uphold the Commissin's decision in the following cases:
· In Toshiba v. Commission and Mitshubishi Electric v. Commission, the fine (but not the rest of the decision) was annulled, because the Commission used the wrong reference year - a different one than the one used for the European cartel members - for the purposes of obtaining the company's turnover, which is an essential ingredient in calculating the starting amount of the fine. So the Commission is going to have to go back to the drawing board on that one.
· In Fuji Electric v. Commission, there is a similar problem. Only this time, the General Court does the new calculation itself. Also, the Holding company gets deleted out of the decision altogether.
· In a different cartel dossier, ENI gets a 33% reduction because the Commission incorrectly marked it as a repeat offender. ENI v. Commission (NL, FR) The same discount, and for the same reason, is obtained by Polimeri Europa (NL, FR)
· In that same cartel, Dow Chemical apparently didn't participate in the first two months, Dow Chemical v. Commission, while the Polish Company Stomil and the Czech company Tavorex apparently didn't participate at all, at least not in a way that the Commission was able to prove. (For the latter: Kaučuk v. Commission and Unipetrol v. Commission.)
· Much to the dismay of the Swiss (cf. also this editorial), Schindler's elevator cartel fine was upheld. (FR) In the various joined ThyssenKrupp cases, however, there was again a problem with the notion of repeat offendor status for successor companies. (NL, DE, FR)

Also in the General Court, and interesting mostly from a procedural point of view: the state aid case of Freistaat Sachsen v. Commissin (RENV) (DE, FR). The first time this case came to the General Court, in 2007, the Court held for the applicant. In December 2008, however, the ECJ upheld the Commission's appeal, and sent the case back to the General Court for consideration of the (factual) please that the General Court did not originally consider. The latter has now remedied that problem, and found those pleas to be meritless.

The 2010 Annual Report of the Court is now available electronically here.

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

Banning something illegal

I don't necessarily have an opinion about this one, I just think it is awesome. The Judicial Chamber of the Dutch Council of State, the Supreme Court for most administrative law matters, has ruled that the city of Amsterdam cannot ban "blowing", i.e. smoking weed, because this is already banned by the Opium Act. Of course, the latter ban is subject to a policy of condonement, meaning that it is not enfoced as a matter of policy, but that doesn't mean that using marijuana isn't illegal. Without further explanation, the RvS states that duplicating a statutory ban in a municipal act (APV) "violates" said statute, and is therefore null and void.

I suppose this is one of those cases where I would like to see a Dutch court explain what it is doing a little more carefully. After all, it is reasonable enough to argue that the system of the Dutch constitution demands that municipalities and provinces cannot duplicate a statutory ban without express statutory authorisation. Alternatively, we might reason that the policy of condonement trumps the municipal act here, despite the fact that that policy is promulgated by the Crown and not parliament. After all, there are plenty of areas where the Crown has power over the lower governments, including through the judicial chamber of the RvS itself. (As its rulings say, it does justice "in name of the Queen".) So it would be nice if the RvS would say which constitutional theory it is applying here. If it did, I would probably agree with the outcome.

UPDATE: I'm only surprised that it took this long: A Christian-Democratic MP is claiming that this ruling means that all coffee shops ought to be closed, because smoking marijuana is illegal. It could be worse, though. The newspapers are reporting his view and the ruling it is based on in an even more distorted manner. They're saying that the Council of State ruled that these municipal bans are not allowed because they're superfluous, which the court didn't say, because it isn't true. Moreover, they're reporting that the CDA thinks that this ruling makes closing the coffeeshops mandatory.

Access to Documents

The Court of Appeals in The Hague keeps batting for the fences. This time, they're being adventurous on the conservative side. The case is X. v. Leerdam, July 6, 2011.

Put simply, the question is whether a municipality can charge money for providing the service of access to documents. There's no question that they can charge for the costs of copying, but what about the time and effort of the poor civil servant who has to dig up the requested files?

It is also beyond doubt that the national government may not demand money for access to documents, except for things like copying costs. However, the regulation that establishes that does not apply to other government entities. Fortunately, the Constitution says that taxes may only be imposed pursuant to a law, so the municipality's actions have to have a basis in a statute. The statute in question, the Municipalities Act, says that levies can be charged for services provided by the municipality. Under Supreme Court precedent, this means services that are not part of the municipality's public duty, and that can be related directly and predominantly to a private interest that can be individualised. (Sorry for the clunky translation, but I'm trying to stay close to the original.) The case in question was about the fire department, which was held to be part of the municipality's public duty, meaning that no levies could be charged.

From this, and from the command in art. 110 Constitution that the government should carry out its duties in public, it should be clear that access to documents is part of the municipality's public duties. However, the Court of Appeals reasons differently. They agree with the defendant-appellant Leerdam that, since this request was made for the benefit of X's business (the ruling doesn't say, but X appears to be some kind of media company), the private interest of X predominates, meaning that levies are possible.

The municipality had charged € 54 for copying and € 1082,40 for the research carried out by the civil servant involved. The odd thing was that this last charge would not have been imposed if X had asked to see the documents. But since they asked for copies to be sent, they got the whole bill. Since this distinction makes no sense, the CoA ends up agreeing with the Court of First Instance and leaves the bill at € 54. However, that is just a particularity of this case. At the end of the day, this ruling would allow Leerdam to charge everyone who makes an Access to Documents request for the time and effort of the civil service. (Unless it's an environmental matter, in which my beloved Aarhus Convention forbids "charges that exceed a reasonable amount".)

The CoA pointedly remarks in the end of its ruling that it did not take into account the Council of Europe Convention on Access to Documents of 18 June 2009 because the Netherlands has not ratified it yet. (In fact, they haven't even signed it yet.) This is of course the correct approach. However, I would still consider the result they reached to be a fairly implausible application of precedent. It doesn't take a CoE Convention to conclude that:

Article 7 – Charges for access to official documents
1 Inspection of official documents on the premises of a public authority shall be free of charge. This does not prevent Parties from laying down charges for services in this respect provided by archives and museums.
2 A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document. Tariffs of charges shall be published.

Under current Dutch law, too, that is easily the more obvious conclusion.

This Week in Luxembourg

For once I am making an exception as to OHIM cases. I tend to ignore them, but this week the Grand Chamber is looking into the question of whether you can register a trademark that is also the name of a well-known person. Under Italian law you can, but only with this person's consent. And despite the fact that Elio Fiorucci sold his business and all its creative assets to the appellant, he never gave express consent for them to register his name as a trademark. Edwin v. OHIM

Then there is some market abuse law. According to the 2nd Chamber, art. 1(2)(a)(2) Directive 2003/6 does not require, in order for the price of one or more financial instruments to be considered to have been fixed at an abnormal or artificial level, that that price must maintain an abnormal or artificial level for more than a certain duration. (In this case, they messed with the price for only a few minutes.) IMC Securities v. AFM

In the case of Pavlov and Famira, about the pre-accession discrimination of a Bulgarian would-be lawyer in Austria, the Court skips over the direct effect question (Cf. AG Mengozzi (NL, DE, FR), who did not), and simply concludes that access to the regulated professions was not covered by the relevant provision in Bulgaria's Association Agreement.

These emails do not usually cover Romanian tax law, but in this case it is interesting to note the case of Nisipeanu (FR). Apparently, the Romanian tax in question, a "pollution tax on motor vehicles upon first registration in Romania", was set up in such a way that it had the effect of favouring the domestic second-hand car market over the market for imported second-hand cars. As such, it is unlawful under art. 110 TFEU.

In another Romanian case, Ministerul Justiţiei și Libertăţilor Cetăţenești v. Ştefan Agafiţei et al., the prejudicial question was declared inadmissible, on the grounds that it didn't actually have anything to do with EU law. The case is about the "unfairly" high salary enjoyed by the prosecutors working for the National Anti‑Corruption Directorate and the Directorate for Investigating Organised Crime and Terrorism. While there may be an element of discrimination there, it is not the kind of discrimination that is forbidden by any EU law.

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

Mustafic

Unfazed by last week's spanking in the electricity unbundling case, the Court of Appeals in The Hague again has an eyebrow-raising judgement. This time, they sided with the plaintiffs-appellants one of the Srebrenica cases.

Taking the case back-to-front, the underlying legal argument is actually not that implausible. Rather than attempting to make the State liable for the genocide in Srebrenica as such, which would be a stretch no matter how you look at it, this case is only about one single victim, a victim who was supposed to be among those transported out of the town, but wasn't. Theoretically, the agreement made by Dutchbat with the Bosnian Serbs involved the evacuation not only of Dutchbat itself, but also of all locals that worked for them. And the victim in this case, Rizo Mustafic, worked as an electrician for the UN peacekeepers. Yet for reasons that are not entirely clear from the court's judgement, Mustafic was not with them when they left. As a result, he was killed.

Given that the plaintiffs thus have a colourable argument on the other three elements of an unlawful act under Dutch law (unlawfulness, causation and damage), it makes sense that the court of first instance focused on the attributability issue: If UN peacekeepers screwed up, why sue the Dutch government? Why not the UN? In practical terms, the answer is easy: Because the UN is immune from suit. But legally that is not a sufficient answer. To the extent that Dutchbat was under the "control" (see below) of the UN and not the Dutch state, only the former can be sued for any unlawful acts committed by Dutchbat. The court of first instance came to exactly this conclusion: the plaintiffs should lose because they sued the wrong person. Dutchbat was under the command and control of the UN.

The Court of Appeals now overrules. It already gets interesting in par. 5.5, where the CoA, citing the Commissie van advies inzake volkenrechtelijke vraagstukken, claims that Dutch army operations in Bosnia were - in general - capable of giving rise to liability under national Bosnian law. Not having see the CAVV's opinion, I can only say that I have my doubts. In any event, the CoA concludes that in this particular case this is irrelevant, and moves on.

With regard to control, the CoA rules that it is not "command and control" that matters, but the more factual "effective control" criterion. (They cite the International Law Commission.) On that basis, it proceeds to examine to what extent the UN and the Dutch government were actually in control of what the soldiers were doing on the ground in Srebrenica in 1995. I think we can all agree that this is an unfortuante conclusion. When it comes to messy matters like military SNAFUs, courts should generally prefer criteria that involve as little factfinding as possible. Bright lines and no second-guessing, whenever possible. The ILC rule cited seems to be one of respondeat superior generally, meaning that the CoA apparently failed to consider whether it might be appropriate to fashion a different rule for military matters.

The examination of the facts obviously yields the result that the Dutch government exercised significant control. As a result, the CoA finds the government liable, although the damages award is kept on ice for a later day. The same goes for the related case of Nuhanovic, to which the above applies mutatis mutandis, which was also handed down by the same panel today. According to the press, the landsadvocaat wants to study the decision before deciding what to do with it, but I would be highly surprised if he didn't ask the Supreme Court to affirm the court of first instance's "command and control" rule over the CoA's "effective control" approach.

UPDATE: Something occurred to me when I was emailing about this ruling. Is the Court of Appeals saying that the UN was not the principal - for respondeat superior liability purposes - of Dutchbat at the relevant time, or are they saying Dutchbat had two principals? The latter seems like a perfectly acceptable theory in normal civilian life, including the kinds of cases that the ILC rule applies to, but in a military situation it seems quite anomalous. In the military, they would normally try to establish a clear - and unique - chain of command. And to the extent that peacekeeping missions don't achieve this goal, I would think it is nonetheless preferable for the a court to limit itself to the primary chain of command, and ignore the others, just like the military on the ground would have attempted to do. And this means, normally, a "command and control test", not an "effective control test", since the latter will almost always conclude that peacekeepers have more than one chain of command.

UPDATE 2: The reporter for European Voice makes a similar point: "The ruling will give pause to governments that contribute troops to peacekeeping missions around the world. National contingents in such missions routinely receive instructions through national chains of command even though they are formally under the command of the UN. That practice is now likely to come under scrutiny: the Hague court based its ruling on the finding that the soldiers in Srebrenica acted on orders from the Dutch ministry of defence when they handed the three men over to the Serbs."

Otto von Habsburg

Otto von Habsburg: 20 November 1912 - 4 July 2011.

An early advocate of a unified Europe, Otto was president of the International Paneuropean Union from 1973 to 2004. He served from 1979 till 1999 as a Member of the European Parliament for the conservative Bavarian CSU party, becoming the Senior Member of the supranational body. He was also a member of the Mont Pelerin Society. He was a major supporter of the expansion of the European Union from the beginning and especially of the acceptance of Hungary, Slovenia and Croatia.