Seselj (2)

It turns out someone already tried to get the European Court for Human Rights to render judgment on proceedings before the Yugoslavia Tribunal. In 2009, the Court gave judgement in Blagojevic v. Netherlands, where it held that the Tribunal was not within the jurisdiction ratione personae of The Netherlands. Essentially, the argument was Al-Sadoon in reverse. Just like sometimes a state has power over a place outside its territory, it can also lack power over a place that is otherwise within its territory. Fair enough.

Last Week in Luxembourg

Last week’s first Grand Chamber judgment dealt with the retroactive effect of the EU competition laws: Can a company also be fined for being part of a cartel in a Member State before its accession? The Grand Chamber replies that it cannot be. Instead, the national competition authority has to apply its national law for that period. Toshiba et al. v. Úřad pro ochranu hospodářské soutěže

The other Grand Chamber case was Flachglas Thorgau v. Germany, about my beloved Aarhus Convention. It is the companion case to last year’s Boxus v. Région wallonne and this week’s Solvay v. Région wallonne. While those two cases dealt with a parliament doing the work of the administration, this German case deals with ministries working as part of the legislative process. The holding is that ministries can be exempt from the Aarhus Convention if and when they are part of an ongoing legislative procedure. Flachglas Thorgau v. Germany

SABAM loses again on internet filtering. Following last year’s Scarlet Extended (also 3^rd chamber, also with judge Malenovský as rapporteur), there is now SABAM v. Netlog. The Belgian courts may not issue an injunction ordering ISPs to install certain filtering software.

In the joined cases of Costa and Costa, it turns out that Italy has made quite a mess out of its attempts to remedy its infringements of EU law in the area of gambling. The “remedy” is insufficient, it still favours the old license holders, it infringes against the principle of equal treatment, and finally it infringes against the principle of legal certainty.

In what may well be the shortest substantive judgment I have ever seen, the Court explains that “Article 7 of Directive 90/314 on package travel, package holidays and package tours is to be interpreted as covering a situation in which the insolvency of the travel organiser is attributable to its own fraudulent conduct.” (Seriously, the consideration of the question referred consists of only 17 lines and 8 paragraphs.) Blödel-Pawlik v. HanseMerkur Reiseversicherung

AG Cruz Villalón has an opinion in a combination AdWords & jurisdiction over online torts case. I.e. “who has jurisdiction over AdWords cases?” The answer is, as usual, a lot of different countries: “the courts of the Member State in which the trade mark is registered, and (…) the courts of the Member State where the means necessary to produce an actual infringement of a trade mark registered in another Member State are used.” Wintersteiger v. Products 4U

AG Sharpston argued that the Dutch “three out of six years” rule for eligibility for student grants is discriminatory towards immigrants. Note the pretty introduction discussing the life of Erasmus. Commission v. Netherlands

A state aid case: The Commission approved restructuring aid paid by the French government to FagorBrandt, but subject to conditions. Two of its competitors, Electrolux and Whirlpool, brought an action for annulment, and the General Court now annulled the decision on the grounds that the Commission failed to take into account the cumulative effect of earlier aid and this new aid. Electrolux and Whirlpool v. Commission

Also from the General Court, an interesting bit of EU-MS diplomacy in light of developing case law. Initially, the Commission sided with Germany when the latter resisted giving access to documents generated in the course of a past infringement procedure, but as the case law in this area developed, the Commission reconsidered and gave access anyway. Germany brought a case before the GC, and now loses. Germany v. Commission

In other news, it seems as if the Czech Constitutional Court has decided to wage war on the CJEU, by declaring a Luxembourg judgment ultra vires. A discussion of the case on the court’s website is here, and there is a full analysis on the Verfassungsblog here.

Also interesting is the intervention by the European Commission in the Dutch pricing system for wholesale mobile telephony. Originally, the regulator (Opta) had used the Commission’s preferred approach, but they were overruled by the courts (the CBB, to be precise). Now that the Opta followed the CBB’s ruling, their new decision was frozen by the Commission using a new competence under art. 7a of the Telecoms Directive. This gives the Commission (and BEREC) three months to work out a better alternative. Press Release

This Week in Luxembourg

This week’s Grand Chamber case is only an AG opinion, but it is a fun one: Post-Lisbon, does the Parliament get a say in anti-terrorism asset freezes? Should the legal basis be art. 75 TFEU or art. 215 TFEU? AG Bot argues, insofar is relevant here, that Security Council sanctions can be transposed into EU law through art. 215 TFEU, if the Council so decides, while EU-only sanctions must be enacted through art. 75 TFEU. Parliament v. Council

In the anti-dumping case of Brosmann Footwear et al. v. Council, the 3^rd Chamber overruled the General Court. According to the Court, the Council (and the Commission) were in error when they failed to extend Market Economy Treatment to the appellants under art. 2(7) of the Basic Regulation. (The appellants are Chinese companies.)

AG Cruz Villalón argues against the suggestion that “ the decisive date for the purposes of application of [Regulation 44/2001] is the date on which it entered into force generally, not the date on which it entered into force in the particular Member State.” Cf. art. 66 of the Brussels I Regulation. Wolf Naturprodukte

AG Mazák has some fun with a case concerning abuse of dominance in the market for machines for the collection of used beverage containers, before concluding that the appeal should be rejected. The only part that might be interesting is the brief section on anticompetitive intent (par. 7-14) Tomra v. Commission

Leers

Yesterday, I took the liberty of writing on my Facebook page that Minister Leers, the Dutch Minister for Immigration, is an idiot. His lawyers should never have let him near this matter, given that they should be claiming in the face of all evidence that it is not his responsibility. My response is based on this newspaper report from EUObserver:

Dutch minister: Border cameras do not break EU law

BY ANDREW RETTMAN

BRUSSELS - The Dutch interior minister has told Brussels his new border cameras will catch illegal immigrants without breaking EU rules.

Gerd Leers defended the project - which has already seen military-grade surveillance technology installed on main roads from Belgium and Germany - in a letter sent to the European Commission on Friday (27 January) and seen by EUobserver.
(...)

Now, this story is not as bad as other versions I have seen. However, it still defends the measure as essentially one of immigration - as indeed it has to as long as Minister Leers's name is under the letter - even though this is a highly suboptimal defence.

When this camera-idea was first mooted, I looked into the actual Schengen Border Code, in order to decide for myself whether this would be legal. The SBC distinguishes between two kinds of border control:

9. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance;

10. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it.

11. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks;

Of these, border checks are abolished for the internal borders under art. 20 SBC. Moreover:

Member States shall remove all obstacles to fluid traffic flow at road crossing-points at internal borders, in particular any speed limits not exclusively based on road-safety considerations. (art. 22 SBC)

Now here's the problem: Border checks are not defined based solely on whether they involve an "obstacle to fluid traffic flow". Instead, they are defined based on the intent of the check: you may not check individuals to make sure that they are authorised to enter your territory. As far as I can tell, those random checks the Minister is talking about have no basis in the SBC. What does have a basis, however, is checks that "do not have border control as an objective" (art. 21(a)(i) SBC) for "the exercise of police powers" (art. 21(a) SBC).

And this is what the reports were talking about last year: using these cameras in order to detect cars travelling into and out of the country in a pattern that would indicate the smuggling of drugs or people. And that is how the Dutch government should have defended this measure: They should have had Minister Opstelten, the Justice Minister, talk about how they were going to catch drug dealers with these cameras. Stopping drug smugglers always gets the Eurocrats excited (see AG Bot's opinion in the Josemans case). There's no chance that the European Commission would tell the Dutch government to stop doing something that might arguably catch drug runners. But in order to get away with that defence, you have to avoid mentioning immigration. Seriously, don't talk about it, ever. Don't even let any of Minister Leers's people in the same room as that letter to the Commission. Ever. No matter what anybody says, just insist that it's legitimate law enforcement, not an immigration matter.