- one-off implementation costs: 150 points
- total annual costs over a period of 5 years: 150 points
- average hourly rate: 50 points
Friday, January 27, 2012
Thursday, January 26, 2012
Sunday, January 22, 2012
Chutzpah ( //) is the quality of audacity, for good or for bad. The Yiddish word derives from the Hebrew word ḥuṣpâ (חֻצְפָּה), meaning "insolence", "audacity". The modern Englishusage of the word has taken on a broader meaning, having been popularized through vernacular use in film, literature, and television. The word has also been able to be interpreted as meaning the amount of spunk or ability that an individual has. In more traditional usage, chutzpah is invariably negative.
Courtesy of the German-language law blog Verfassungsblog, we have the story of the argument made by Heinrich Boere - Dutch Nazi war criminal - before the German Federal Constitutional Court. He argued - wait for it - that he could not be prosecuted in Germany because he had already been prosecuted, and found guilty, in the Netherlands in 1949. Of course, this Dutch sentence (originally death, later commuted to life in prison) had never been carried out, because the German authorities always took the view that he had (or in recent decades: "might have") German citizenship. In 2007-2008, it briefly looked like he might have to serve his Dutch sentence in Germany, but that ruling was overturned on the grounds that the Dutch trial had been in absentia. Which is how he finally ended up being retried in Germany.
Art. 50 CharterNo one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.
The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases:
2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;
Article 54Boere, however, was not resisting extradition. He was resisting his second trial in Germany. As such, only art. 50 Charter applied to him, putting the Constitutional Court in a difficult position. The solution proposed by the Regional Court in Aachen and the Federal Supreme Court in Berlin was upheld by the FCC: art. 54 CISA was lifted from its context and interpreted as a general limitation of the art. 50 right under art. 52(1) Charter, which allows for limitations of the rights stated under certain conditions.
A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.
(Not that I necessarily agree with the concept of preventing a councillor - be it "symbolically" or otherwise - from attending a City Council meeting, but I just love the creativity and the humor of it.)
Friday, January 20, 2012
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.My argument at the time rested on the distinction between the government acting as legislator and the government acting as counterparty. (Notice the effortless switching between my persona as jurist and my persona as (financial) economist.) In my opinion, art. 1P1 does not protect bondholders from normal counterparty risk anymore than it does for strictly private bonds. To say otherwise would require the conclusion that Bankruptcy Acts are in violation of the Convention. The fact that in this case Greece is considering forcing the issue by enacting a statute is irrelevant. If you buy a government bond, you assume a measure of counterparty risk of exactly the nature that is at display here.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 2901. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:(a) the European Parliament or the Council may decide to revoke the delegation;(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.3. The adjective ‘delegated’ shall be inserted in the title of delegated acts.Article 2911. Member States shall adopt all measures of national law necessary to implement legally binding Union acts.2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.4. The word ‘implementing’ shall be inserted in the title of implementing acts.
[As an aside, there was a little discussion about whether the two conditions of art. 290(2) are the only possible conditions. Having read the text now, I'd agree with the Commission and Council legal services that the list is indeed exhaustive. Re-introducing Comitology one Legislative Act at a time would not be permitted.]
Thursday, January 19, 2012
The only Grand Chamber judgment this week involved employee rights for a person working on the Dutch continental shelf. Read it if you like. Salemink v. UWV
AG Kokott considers the problem of public service contracts and military hardware. Conclusion: “An item which, according to the contracting authority, is to be used for specifically military purposes, but which, viewed objectively, is essentially no different from similar items used in the civilian sector cannot, through reliance on Article 296(1)(b) EC in conjunction with Article 10 of Directive 2004/18, be excluded from the procurement procedures prescribed in that directive.” That makes sense… Insinööritoimisto InsTiimi
AG Bot gets involved in the issue of fees for 3rd country citizens who are long-term residents in the Netherlands. The Netherlands was already convicted by the ECtHR on this issue last week (G.R. v. the Netherlands), and AG Bot thinks the fees are also too high under Directive 2003/109. (The former case concerned their level relative to the applicant’s ability to pay, while the EU law issue focused on their level relative to comparable intra-EU fees.) Commission v. Netherlands (NL, DE, FR)
AG Trstenjak looked at some copyright law from Denmark. Apparently, the Danish copyrights organisation is annoyed with the use of copyrighted music by public broadcasters under a statutory exception to the normal rules. For this reason, it has asked the courts to rule that this exception only applies to programmes produced by the TV companies themselves, not to programmes commissioned elsewhere. However, the AG doesn’t seem to go for it. DR and TV2 Danmark v. NCB
Last Thursday, AG Mengozzi took a restrained approach to employment discrimination and Directives 2000/43 and 2006/54, by declining to support the idea of an obligation for employers to explain to the unsuccessful applicant why they hired the person that they did, and by encouraging the national court to take a look at the big picture of the application procedure. Given the facts, however, this context point will probably get the defendant in trouble. Meister v. Speech Design Carrier Systems
Before Christmas, the General Court ruled in a highly interesting case that I overlooked because it looked like just another competition case. In CDC Hydrogene Peroxide Cartel Damage Claims v. Commission, the Commission argued that it could not give the applicants access to documents because then they might sue the subject of the (successful) competition investigation. While it is easy enough to understand the Commission’s concern, of course this argument was never going to fly as a legal matter. Cf. Eutopia Law
Finally, I would like to point out that on 15 June this year, the Florence School of Regulation is organising its First Annual Conference on the Regulation of Infrastructure Industries. The deadline for submitting abstracts is March 1, 2012. Please forward the Call for Papers to anyone you think might be interested.
Monday, January 16, 2012
Observers of this process have become increasingly critical about the fact that liberalization has not delivered on its promises, that regulation has failed as well, and that new challenges are emerging in the infrastructures, requiring novel approaches to regulation. The most prominent such challenges pertain to investments, public services and public service obligations, infrastructure systems’ coherence, and more generally responsiveness of infrastructure operators to public policy objectives.
These constitute as many challenges for regulation and regulatory bodies. This conference aims at exploring these challenges for regulation and regulators across the infrastructures and in an interdisciplinary manner, combining engineering, economics, law, and political science.
Deadline for Submission: 1 March 2012
Wednesday, January 11, 2012
The Court noted that the applicants had not complained of any medical disorders linked to their exposure to the waste, and that the scientific studies produced by the parties had made conflicting findings as to the existence of a link between exposure to waste and an increased risk of cancer or congenital defects. Although the Court of Justice of the European Union, which had ruled on the issue of waste disposal in Campania, had taken the view that a significant accumulation of waste on public roads or in temporary storage sites was liable to expose the population to a health risk (link), the applicants’ lives and health had not been in danger.The collection, treatment and disposal of waste were hazardous activities; as such, the State had been under a duty to adopt reasonable and appropriate measures capable of safeguarding the right of those concerned to a healthy and protected environment.It was true that the Italian State, from May 2008 onwards, had adopted several measures and launched a series of initiatives which made it possible to lift the state of emergency in Campania on 31 December 2009. However, the Court could not accept the Italian Government’s argument that that state of crisis was attributable to force majeure. Even if one took the view, as the Government did, that the acute phase of the crisis had lasted only five months – from the end of 2007 until May 2008 – the fact remained that the Italian authorities had for a lengthy period been unable to ensure the proper functioning of the waste collection, treatment and disposal service, resulting in an infringement of the applicants’ right to respect for their private lives and their homes. The Court therefore held that there had been a violation of Article 8.
Monday, January 09, 2012
Here are some cases that I didn’t get around to before the holidays. Regularly scheduled programming resumes next week.
The biggest case of the weeks before Christmas is undoubtedly the Grand Chamber’s Emissions Trading for Airlines judgment in Air Transport Association of America et al. v. Secretary of State for Energy and Climate Change. While there is too much to this case for me to mention it all here, I have to say that I’m not convinced by the Court’s insistence that charging airlines for all emissions produced, from the moment it starts taxiing until the moment it reaches the gate at the other end, does not infringe the sovereignty of third countries (cf. par. 127-130).
In asylum law, The Grand Chamber followed the ECtHR’s ruling in M.S.S. v. Belgium (cf. Strasbourg Observers), as well as AG Trstenjak, and held that “European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.” N.S. v. Home Secretary and M.E. et al. v. Refugee Applications Commissioner et al.
The Grand Chamber rejected France’s appeal against the General Court’s ruling in PMOI v. Council. Essentially the French took some of Kadi’s rights of defence language head on, and lost. France v. PMOI In sanctions news, the Third Chamber takes a flexible approach to interpreting Regulation 423/2007 (sanctions against Iran). Clearly attempts at finding loopholes are not being tolerated. Afrasiabi et al.
The Grand Chamber also convicted Austria of breaching art. 28 and 29 EC “by prohibiting lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley (Austria)”. It is always fascinating to see how the law can force parties to argue from a completely unrealistic framework. After all, this is not really a free movement of goods issue, this is a transportation issue. (The Netherlands and Italy appeared as intervenors.) And yet, MEE it is. Commission v. Austria
In Ziolkowski et al. v. Berlin, the Grand Chamber considered how people acquire a permanent right of residence if their home country only joins the EU while they’re already abroad. The conclusion is that their residence abroad not only has to be legal under the law of the host MS, but also has to meet the conditions of art. 7(1) of Directive 2004/38. However, residence in an EU MS that meets those requirements counts towards the required minimum period even if it occurred before accession. (So a Czech who has lived in Germany since 2000 acquires the right of permanent residence in 2005.)
Following AG Mengozzi, the Grand Chamber held that Directive 85/374 does not prevent Member States from making make hospitals and doctors liable for using a defective product in addition to the liability of the producer. The French law in question created no-fault liability for the users of the medical product in addition to the liability for the producer of the product that is required by the directive. Centre hospitalier universitaire de Besançon v. Dutrueux et al.
In energy law, the Second Chamber endorsed an Italian Universal Service Obligation for energy producers, notwithstanding art. 11 of Directive 2003/54. ENEL Produzione v. Autorità per l’energia elettrica e il gas
After September’s Gueye and Salméron Sanchéz (cf. also here for a detailed analysis), the Court now again has a case on the protection of vulnerable victims under Framework Decision 2001/220. And again, the answer is not quite what the victims in question will have hoped. Prosecutor v. X
In Cicala v. Sicily, the Italian court asked two questions about the obligation to state reasons under the Charter of Fundamental Rights. While it might have been interesting to hear the answers, the case in question did not otherwise touch on EU law, so the Third Chamber threw it out for lack of jurisdiction.
In 2004, the ECJ rejected sui generis Intellectual Property protection under art. 7(1) of Directive 96/9 for a database of football fixtures. Cf. Fixtures Marketing v. Oy Veikkaus. Now, a new plaintiff is trying for straight up copyright protection under art. 3 of that Directive. AG Mengozzi, however, does not seem enthusiastic. He argues that this is only possible if the database is “an original intellectual creation”, and the work of putting together the database does not count. Moreover, he argues that MS are not allowed to create additional protection. Football Dataco et al. v. Yahoo! UK et al.
In the Grand Chamber case of Kamberaj (NL, DE, FR, IT), AG Bot proposes an answer that passes most of the problem back to the Italian judge. The question is whether an Albanian long-term resident of Italy can have his rental assistance taken away in a manner that violates the equal treatment he is in principle entitled to under Directive 2003/109. The AG suggests that the national judge should sort out whether this qualifies as social security, etc. under art. 11(1)(d) of the Directive, and, if so, whether it is a core benefit under art. 11(4). He does, however, propose some guidance for the latter.