Europeans can't jump

Since my friends from Breughel encouraged me to disagree more, I suppose I have to.

But seriously, most of their post of why there is no pan-European blogosphere is completely correct. There isn't one for very same reason that there is no pan-European public opinion, or even a pan-European labour market for that matter: too much heterogeneity and too many barriers to trade in ideas.

But I seriously have to disagree with the suggestion that Europeans aren't as good at arguing as the Americans. They write:

Second, there are probably also “cultural” reasons behind that phenomenon. Europeans don’t have “debate” classes in High School and they tend to have far less confrontational academic discussions (we have nothing as direct and antagonistic as the Cochrane/Hubbard vs. Krugman/DeLong for instance). European economists seem to prefer spreading knowledge rather than stirring debate. VoxEU, Telos, the column section at Eurointelligence, and the new OFCE blog all provide avenues to disseminate research and to express opinions, but are not, so to speak, blogs with arguments and disagreements.

We invented it for crying out loud! Not just parliament, but also continuation of politics by other means - an area that we have traditionally excelled at. The comments sections of our newspaper websites are full of moronic comments just like in the US. Everybody argues with everybody all over the place, often times quite unbothered by any lack of knowledge or understanding. My compatriots - the Dutch - pride themselves in their rudeness, in their willingness and ability to speak the truth, the whole truth and nothing but the truth regardless of whether it is polite, kind or politic. We're the ones who invented GeenStijl! (Official tagline: "tendentious, unfounded and needlessly hurtful".)

The problem isn't that Europeans don't debate, it is that European blogs don't debate, at least not with each other. And the reason for that, other than the ones already given in the Bruegel post, is that in Europe relatively more of the interesting topics are national rather than European. You can only have a European debate if there are things happening at the European level that make people mad.

Personally, I wouldn't mind a good debate about all this austerity nonsense, but it looks like Krugman already has that covered. (For what it's worth, I'm an economist and I think he's right.) So what else should we debate about? That dumbass PVV Polish complaint hotline? Surely not... It may be dumb in the extreme, but so is giving it more attention than strictly necessary. So what's left?

This Week in Luxembourg

The Grand Chamber ruled in two appeals in asset freeze cases. Melli Bank lost, again, but Pye Phyo Tay Za won. You can freeze the assets of people who are associated with the rulers of a foreign country, but not the assets of the family members of a person who is associated with the rulers of a foreign country. That is one step too far removed. I am left wondering, though, whether the new art. 215(2) TFEU would produce the same answer. (This case concerned sanctions based on art. 60 and 301 EC.) Cf. Verfassungsblog, EUObserver and me, concluding that it wouldn’t.

Two copyright cases courtesy of Judge Malenovský in the 3^rd chamber: Hotels have to pay for the “broadcasts” they make to their guests, Phonographic Performance (Ireland) v. Ireland, but dentists do not, Società Consorzio Fonografici v. Marco Del Corso, apparently because their guests don’t have any choice in the matter. The latter case is more broadly relevant because it contains an analysis of how the TRIPs Treaty, the WIPO treaty and the 1961 Rome Convention apply in the Union legal order. While none of them create individually enforceable rights, the former two are part of EU law.

G. v. De Visser involves a 10-part question (German, of course) about naked pictures on the internet. Or, to focus on the law for a moment, it is about service by public notice in cases where the defendant cannot be found, as it relates to art. 26(2) of Regulation 44/2001. Result: the German court can exercise jurisdiction in the normal way under art. 5(3) of the Regulation absent “firm evidence” that the defendant is domiciled outside the EU, it may issue a default judgement, but it may not certify a European Enforcement Order and it may not apply the e-commerce Directive.

Finally, on Chilling Competition there is a short but useful note on the overhaul of the state aid rules for SGEIs (the “Altmark package”).

Tay Za

Ahead of tomorrow's newsletter about this week's CJEU case law, there's a question I wanted to ask. Or rather, there's a point I wanted to make that may or may not be correct. It concerns the Grand Chamber's judgement in Tay Za v. Council.

Just to quickly line up the ingredients, Pye Phyo Tay Za is the 20-something son of the guy that owns whatever parts of the Burmese economy that aren't owned by the military. That is how both Tay Za sr. and Tay Za jr. ended up on the 2008 asset freeze list for Burma. As required by previous ECJ judgements, the legal basis for this Regulation was art. 60 and 301 EC.

Article 60
1. If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.

Article 301
Where it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for an action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures. The Council shall act by a qualified majority on a proposal from the Commission.

In 2010, the General Court (8th Chamber, Judge Dittrich rapporteur) decided that this asset freeze was lawful. Case T-181/08 Tay Za v. Council

This week, on appeal, the Grand Chamber of the Court of Justice of the European Union (Judge Cunha Rodrigues rapporteur), held that the asset freeze was ultra vires because the relative of a prominent business man is one step too far removed to qualify under art. 301. Specifically, while Tay Za sr. has close enough ties to be covered under "economic relations with [Burma]", his son does not.

While this may be inconvenient for the Council, from a legal point of view I have very little objection. Ever since my LL.M. thesis I have a strong emotional attachment to the doctrine of conferred powers (cf. also last week's Hungary v. Slovakia opinion), and I always welcome it when the Judges in Luxembourg remember that it exists. Let's just say it's a welcome change from their usual default stance of promoting European integration.

Instead, my question is this: Does this line of reasoning still apply under the Lisbon Treaty?

Post-Lisbon, the key section in the Treaties is art. 215(2) TFEU, which for the first time explicitly authorises the Union to freeze the assets of individuals. Until now, this was read as implied in the power to impose sanctions against countries, hence the initial confusion about whether or not this required the additional use of art. 308 EC as a legal basis. That was murky because that article, while extremely broad in its potential scope, was limited to "the operation of the Common Market" and "the Objectives of the Community". Ultimately, in Yusuf and Kadi, the ECJ said that art. 60 and 301 EC alone were the only permissible legal basis. The Court argued that asset freezes were useful in order to attain the objectives of the European Union, but not the objectives of the European Communities as they were listed in art. 3 EC.

In order to fix all that murkiness, Jean-Claude Piris gave us art. 215(2) TFEU:

1. Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof.
2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities.
3. The acts referred to in this Article shall include necessary provisions on legal safeguards.

Now, unless I'm crazy, this allows for asset freezes quite unrelated to any policy towards a country. Chapter 2 of Title V of the EU Treaty is simply the stuff dealing with CFSP. I guess that means they have to link it to foreign policy somehow, but otherwise I'm not sure what the limitations would be. If the Council decides that Tay Za jr.'s assets must be frozen in order to prevent his father from circumventing his own asset freeze, that seems like a perfectly good reason for the purposes of legal basis. If the Council doesn't like how Fox News influences the US Presidential elections, art. 215(2) TFEU gives them a legal basis for freezing Rupert Murdoch's European assets. Fun huh?

Now obviously there are many other limits, most importantly the protection of property rights under art. 1 P 1 and art. 17 CFREU, which translates to an obligation not to freeze people's assets without an adequate reason. And freezing someone's assets for the speech they lawfully engage in abroad is almost certainly not a good reason. (And that's after I deliberately chose an example that did not involve using the asset freeze as a punishment for a crime, which would be even more out of bounds.) Still, it is fun to ponder...

In the end, it looks like this Tay Za judgement is one of those temporary judgements that appear in the history of EU law from time to time, cases that have already lost their relevance by the time they are handed down, overtaken by subsequent developments in the law. Am I wrong?

The Stalin Option

When it comes to the international uproar about human rights abuses in places like Syria, there's something I've been wondering about for ages: Why does it work so often?

For sure, there are many places in the world that doggedly resist any and all attempts by the international community to shame them into reforming. There's North Korea, Birma, Belarus and even China (PRC). But for every one of those, there's a Tunisia, an Egypt or a South Africa. Now, for sure all those countries were extremely unstable before the regime collapsed, but that only shifts the question: Why would the leadership allow the situation to get out of hand like that in the first place? Why not go for "the Stalin option" at the slightest sign of resistance? What is it that makes dictators reluctant to engage in the kind of massive bloodshed that that entails?

One of my all-time favourite models is Mancur Olson's theory of rational dictatorship (JSTOR link). He argued that rational dictators maximise the present value of their theft. It follows that the amount the dictator steals in the present period depends on whether he expects to still be around in the next period. The more stable the dictator's regime, the more his rational self-interest requires him to maximise economic growth even if this comes at the expense of short-term stealing. It follows, wrote Olson, that it can be in the people's best interest to leave their dictator alone, at least until a succession crisis makes the regime unstable anyway.

Let's think about dictators along these lines. Surely their number 1 interest is to avoid getting killed. Second to that, and closely related, is to avoid losing power. If the correlation between losing power and getting killed were sufficiently low, we can imagine a scenario where it is rational to allow yourself to be thrown out. However, that does not seem to be the case in actual fact. Idi Amin might have lived happily ever after, but many deposed dictators don't. In those circumstances, and assuming a sufficiently high disutility from dying, the rational dictator values continued power above everything else. Put differently, the rational dictator crushes his country in whatever way is necessary to avoid being overthrown, no matter how badly that affects his ability to steal his people's money. Better to be the living dictator of a dirt-poor country than the dead dictator of something more prosperous.

Of course, not all leaders have the Stalin Option in their arsenal, but then, not all leaders are dictators. A dictator tends to become a dictator in one of two ways: On the one hand, there are dictators who came to power by force. On the other hand, there are those who inherited it, usually from their father. There, too, somewhere down the line the founder of the dynasty came to force by power. Behind every great fortune lies a great crime. So if a dictator - properly so called - does not have the Stalin Option in his arsenal, the Option certainly used to exist at some point, but it was lost.

So how does one lose The Big Gun? It seems like mighty careless thing to allow to happen. To start with the latter category, it is possible that the son has less authority than the father. If that is true to the extent that he is unable to apply the Stalin Option, his inheritance is essentially a poisoned apple. The history of the Roman Empire is full of imperial pretenders who only accepted the purple because to decline it would mean certain death. Instead, they elected to fight so they might have a small chance of not being killed by the incumbent. Heirs of dictators might face a similar situation, the only difference being that for them it is easier to flee abroad and live happily ever after. In the small time between the father's death and the son officially accepting the crown, this is certainly a viable option. (And even before, the son might indicate to his father that he is not interested.) So why would someone accept an inheritance that will get him killed? Until his older brother died in 1994, Bashar al-Assad was an eye doctor in Britain!

Regardless of whether the dictator has used the Stalin Option before himself or has simply inherited it, he can lose it through carelessness, by growing weak and forgiving in his old age. But surely this carelessness is a gradual process, uninfluenced by sudden outrage in response to atrocities? The international community is certainly able to slowly and gradually encapsulate a dictatorial regime in a web of international commitments. That's why they let China and Russia into the WTO. (Well, also so that they could do this.) Such commitments can persuade the dictator to dress up his pretend-democracy with pretend-elections, a pretend-parliament and pretend-human rights more than he perhaps should. But what kind of a dumbass dictator lets any of that get in the way of applying the Stalin Option?

The only possible answer is that all this make-believe can start to take on a life of its own. Dictatorship relies on a complex network of stag hunt games. Unlike the related Prisoners' Dilemma, the Stag Hunt is a game that is extremely vulnerable to actors' expectations about one another. It is rational for all players to cooperate as long as they expect everybody else to. (In the Prisoners' Dilemma, cooperation can only be rational if the game is repeated.) As long as everybody expects that everybody else will obey the dictator no matter what, the dictator's power is untouched. But once the dictator starts implementing make-believe democratic reforms, these beliefs can disappear, and with it the dictator's power. This is true even if nothing has actually changed about the dictator's actual intentions or the actual legal constraints that he is subject to, if any. If sufficiently many people think the pretend-democratic institutions are real, they are real.

But is this what happened in Syria? I don't think so. I'm no expert, but I am not aware of any reforms in that country, make-believe or otherwise. Instead, the difference between today and 30 years ago seems to be entirely one of international visibility. It is no longer possible to kill 40.000 people without the rest of the world noticing. And this is what the protesters seem to be banking on: their expectations about the rest of the world have changed. Given these expectations, it is rational for them to resist much more forcefully than they otherwise would. But why does Assad care? He can easily prove them wrong, simply by sending in some air force bombers.

The fact that he hasn't yet can mean one of three things: either his inheritance is poisoned and he was wrong to accept it, or he is a softie unfit for the job, or the Stalin Option was never quite as unilateral as I made it seem. Perhaps it, too, needs at least a little bit of support from the inner circle. And perhaps the (rational) resistance from the people has made them (rationally) reluctant to support anything quite so drastic. In that case, Assad should find himself a better inner circle sooner rather than later. Then again, maybe it is better for everyone if he doesn't.

Breaking news: Sanity prevails

It's been more than a month, but I didn't get around to blogging about it until now. In a dramatic break with tradition, sanity has actually prevailed in the criminal prosecution of the people behind Coffeeshop Checkpoint in Terneuzen.

The story is this: the marijuana condonement policy in the Netherlands allows any individual to possess a "personal use quantity" of marijuana without getting arrested. How much that is varies a bit depending on how close you are to the borders, but that's a different story. Essentially it's one baggie full. Of course, this poses a bit of a problem for the coffeeshops that sell the stuff, which is why they are allowed about 500 gr by way of inventory. Where they're supposed to get that inventory is anybody's guess. Those purchases are not part of the policy. But that, too, is a different story.

What happened in Terneuzen is that Checkpoint for years - since 1996 to be precise - ran a very successful business, thanks in no small part to the fact that Terneuzen is only about a 20 mins. drive from the Belgian border. They had 5 cash registers and an annual turnover of several million euros. Because all this drug tourism started to annoy the law & order crowd more and more, in 2007 the mayor and the police decided to put an end to it. They raided the shop and found, to their extreme surprise I'm sure, that there was more than 500 grams of marijuana on the premises. To be precise, there was 4,5 kg, with another 92 kg. in a storage facility nearby. At a further raid in 2008, another 160 kg. was impounded and the coffee shop was closed. Since the terms of the condonement agreement had been violated, the court held that it had no choice but to convict the defendants of the various offences with which they had been charged. (Link, in Dutch.) The main defendant got 16 weeks in jail, of which 7 were suspended. More importantly, this meant the forfeiture of various equipment.

The Court of Appeals, however, decided to use one of the two (three?) big loopholes in Dutch criminal law. (We can argue whether a decision to convict without punishment is a loophole.) Under art. 349(1) of the Code of Criminal Procedure, the court can decide that the prosecutor "cannot be received in his prosecution". The law mentions some examples of when this happens, most importantly in various cases of prosecutorial misconduct (including serious cases of unlawfully obtained evidence), but doesn't define the term. Generally, a trial is concluded in this way in the interest of fundamental fairness, when the prosecutor has forfeited his right to prosecute in some way.

In this case, the Court of Appeals - quite rightly in my view - decided that the defendant was entitled to rely on the prosecutor not suddenly changing his de facto policy towards the coffeeshop, or rather on his not doing so without without weighing the public interest against the interest of the defendant, and without considering whether the route of administrative law should be preferred instead. Now that such a weighing did not take place, the prosecutor's right to prosecute was forfeited.

While this means that the defendant gets his stuff back, the time he spent in pre-trial arrest is gone forever. Also, it is unlikely that the coffeeshop will be able to do business as before. One way or another, it will probably have to close for good or at least drastically reduce its size, particularly when it comes to selling to foreigners. (In case anyone was wondering, selling weed to foreigners is not protected under EU law. Cf. Josemans v. Mayor of Maastricht, CJEU 16 December 2010.) After all, this criminal ruling does not affect the administrative courts' decision that the mayor was right to close the coffee shop, cf. the ruling of the Council of State of March 2011. Still, justice was done...

Court of Appeals in The Hague, criminal case no. BV2572 of 2 February 2012

This Week and Last Week in Luxembourg

Unquestionably the coolest case this week is AG Bot’s Opinion in Hungary v. Slovakia (!), about a refusal by Slovakia to allow the President of Hungary access to its territory. Hungary tries to argue it as a straightforward free movement of persons case, but the AG argues that the EU is not empowered by the Treaties to make rules about the access of a Head of State to the territory of another MS. Also interesting: “the Member States should not exercise their diplomatic competence in a manner that might lead to a lasting break in diplomatic relations between two Member States”. (par. 58)

AG Mazák agreed with the General Court that the Commission’s decision to conditionally approve the takeover of Vivendi’s European publishing activities by Lagardère was OK. The main fun of this case is that Lagardère sought to make sure that Vivendi got paid as quickly as possible by having a bank act as the purchaser pending approval by the Commission, based on an undertaking that said bank would be indemnified by Lagardère for any losses resulting from the arrangement. Éditions Odile Jacob v. Commission

Conservatives everywhere will find AG Bot’s opinion in P.I. v. Oberbürgemeisterin der Stadt Remscheid a decidedly mixed bag. On the one hand, the AG argues that a child molester cannot be expelled based on “imperative grounds of public security”, because he is not a threat to the public at large. On the other hand, the AG treats the 10 year limit for the highest level of protection as nothing more than a rebuttable presumption of integration, and argues that integration has not occurred in this case. Cf. art. 28(3) Directive 2004/38

AG Mengozzi argues that online contracts that provide the information required by art. 4 of Directive 97/7 via a hyperlink do not comply with the requirement of art. 5 of that Directive that the information should be provided to consumers in a “durable medium”. In fact, given that a further click was necessary to access the information in the first place, the AG argues that the consumer in question hasn’t received the information at all. I wonder how the internets are going to solve this problem… Content Services v. Bundesarbeitskammer

On renvoi, the General Court annulled a State Aid decision that it had initially upheld (original judgment). As far as I can see, the key error identified by the Court of Justice concerned the GC’s focus on the “causes or objectives of the aid”, rather than its effects. There was also a problem with the overall level of scrutiny. British Aggregates v. Commission

Finally, there was a partial loss for the Commission in the Industrial Bags cartel case, where UPM-Kymmene had its fine reduced by about 10% because the Commission failed to prove the cartel for the full time period claimed. The remaining amount is still the highest of the 13 companies involved, though. FLS Plast and FLSmidth got an even smaller “discount” for an even smaller period of time. For those keeping score, the total fine is now approximately € 280 million (instead of € 290 million).

Last week, there was at least a partial win for Germans with Czech driving licenses. The driver in question still lost, but only because he didn’t satisfy the residence requirements for a license, not because he’d evaded the German court’s decision to refuse him a license on the grounds that he “displayed aggressive tendencies”. Akyüz

For the purposes of the part-time work directives, Ireland was allowed to discriminate between judges and workers (i.e. to say that judges are not “employees”), but not between full-time judges and part-time judges. O’Brien v. Ministry of Justice

Also last week, the General Court backed the Netherlands against the Commission regarding some of its state aid for ING. The Commission had decided (link) that the aid in question was acceptable subject to three pages of commitments, but in front of the Court they failed to prove that it was aid at all, i.e. that ING couldn’t have gotten similar terms on the normal capital markets. Netherlands v. Commission

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.