This Week in Luxembourg

In Åklagaren v. Åkerberg Fransson, the Court (Judge Safjan) applied the Charter to a case that was within the scope of EU law but not a necessarily an implementation of EU law in the sense of art. 51(1) Charter. Also fun, the Court discusses the relationship between EU fundamental rights law, ECHR law and national fundamental procedural and fundamental rights law (par. 43-49). Cf. EULaw Student Blog, European Law Blog, Eutopia Law Blog (1, 2), and Verfassungsblog (1, 2)

The execution of an EAW cannot be made conditional on the in absentia judgement in question being open to review, not even if the national court invokes the Charter. Cf. Framework Decision 2009/299. Notice also the national court’s question 3, which invoked art. 53 Charter in order to be able to use national constitutional law to evaluate a rule of EU law. Unsurprisingly, the Court (Judge Safjan) did not like that either. Melloni v. Ministerio Fiscal Cf. Eutopia Law Blog and prof. Joseph Weiler on EJIL: Talk!

Delay compensation for air passengers is not conditional on delayed departure, but only on delayed arrival at the passenger’s final destination. (Judge Malenovský.) Air France v. Folkerts Cf. European Law Blog, Eutopia Law Blog and Recent Developments in European Consumer Law Blog

A number of cases were handed down this week about the 1st Railway Package, all of them courtesy of Judge Borg Barthet and AG Jääskinen. A quick rundown:

• In Commission v. Germany, the Court followed the AG and dismissed the action.
• In Commission v. Austria, the Court followed the AG and dismissed the action.
• In Commission v. Spain, the Court followed the AG and found that Spain had failed to correctly transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (Charges are ultimately set by the minister, there is no performance scheme and the minister has too much discretion in how to deal with capacity scarcities.)
• In Commission v. Hungary, the Court followed the AG and found that Hungary had failed to transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (The financial equilibrium of the infrastructure manager is not ensured, the charges are not linked to direct costs, and there is no incentive scheme.)

In Kenny et al. v. Commissioner of An Garda Síochána et al., the Court (Judge Silva de Lapuerta) tackled a straight-up indirect gender discrimination case, providing some guidance – though perhaps not as much as the Irish court would have liked – on the burden of proof for the defendant if a pay difference is to be justified.

In Ettwein v. Finanzamt Konstanz for once the Swiss don’t get the short end of the stick. The EU-CH Agreement on the Free Movement of Persons requires equal treatment here, according to the Court (Judge Juhász).

In Arrango Jaramillo et al. v. EIB, the Court reviewed a judgement by the General Court (FR) on appeal from the Staff Tribunal (FR). Even though such a review procedure requires the ECJ to be quite deferential (“if it affects the unity or effectiveness of EU law”), it was not pleased and sent the case back to the General Court.

The Greek State Aid case of Ellinika Nafpigeia v. Commission (FR) took an unexpected turn for the interesting when the appellant – a shipbuilder – invoked art. 346 and 348 TFEU in order to get out of repaying the aid. The Court (Judge Silva de Lapuerta), however, relied heavily on the last clause of art. 346 (1)(b) TFEU to interpret that article even more narrowly than it was already going to do anyway. The General Court judgment is here, also in French.

The Court (Judge Arabadijev), explained to a Portuguese court that a system of compulsory training for chartered accountants does fall under art. 101 TFEU, meaning that, once it is shown that it is problematic from a competition law point of view, it will require an equivalently weighty justification. Ordem dos Técnicos Oficiais de Contas v. Autoridade da Concorrência


AG Kokott goes out on a limb in competition law by arguing that a company that relies in good faith on advice by outside counsel saying that its behaviour is lawful under competition law cannot be punished for infringement if the competition authorities disagree. I suppose she had the Verbotsirrtum of § 17 StGB (translation) in mind, but I doubt that the Court will go for it. Schenker and Co AG et al.

AG Mengozzi proposed that the Commission should win its cartel appeal in Commission v. Aalberts Industries et al.

AG Jääskinen, on the day of his railway victory, did some public procurement law: “Articles 47(2) and 48(3) of Directive 2004/18 (…) preclude national legislation (…) which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria concerning the economic and financial standing and/or technical and/or professional ability of an economic operator.” That seems quite obviously right. Swm Costruzioni 2 and D.I. Mannocchi Luigino v. Provincia di Fermo Cf. Eutopialaw

Last Week in Luxembourg

In ProRail v. Xpedys et al, the Court (Judge Ilešič) considered whether the procedure created by Regulation 1206/2001 for a Court to enlist the help of the Court in another Member State for taking evidence there is mandatory. The Court found that it is not; the Belgians were entitled to simply appoint an expert to report on the situation in the Netherlands without involving the Dutch courts.

In the mutual recognition of qualifications case of Ministero per i beni e le attività culturali et al. v. Ordine degli Ingegneri di Verona e Provincia et al., there is something noteworthy going on in par. 35, where the Court deals with the objection that this is a purely internal matter. It argues that it may still answer the prejudicial question where the national court is required by its domestic law to treat internal cases the same as cross-border cases.

The Court (Judge Berger) discussed the application of the rule of audi et alteram partem to the situation where a court has found, of its own motion, that a contractual term is unfair under Directive 93/13. The conclusion is that parties must be invited to submit their views about which remedies the Court should impose. Banif Plus Bank Zrt v. Csipai Cf. Recent Developments in European Consumer Law Blog post 1 and post 2.


Relying on art. 24(2) Charter, AG Cruz Villalón proposed bringing the best interest of the child standard into Dublin-II asylum law. As a result he concluded that when an unaccompanied minor (cf. art. 6 of the Dublin-II Regulation) applies for asylum in more than one Member State, the best interest of the child will usually (but not always) require that the application be treated in the Member State of the most recent application. MA et al. v. Secretary of State for the Home Department

AG Sharpston handled yet another case on financial aid for students, arguing that the German three-year rule should suffer the same fate as its Dutch equivalent. Joined cases Prinz v. Region Hannover and Seeberger v. Studentenwerk Heidelberg Cf. Eutopia law blog


Surprisingly, Melli Bank lost its latest asset freeze suit. Some of its heads of claim were held to be inadmissible, and the others were rejected on the merits. Melli Bank v. Council

This Week in Luxembourg

This week’s case of the week is Protimonopolný úrad Slovenskej republiky v. Slovenská sporiteľňa a.s. (Judge Rosas), where the Court held that it is irrelevant for the purposes of art. 101 TFEU that the competitor-“victim” of the alleged cartel was operating on the market illegally, in this case because it didn’t have the right banking licenses. If you ask me, this is a cool result, even though it is clearly correct. I’m actually surprised that the Court invoked “anti-competitive by object” in order to get there. Surely the real victims, the customers, were still affected? Cf. European Law Blog

If you are amused by subrogation of rights in the context of insurance contracts, you should be doubly amused by this week’s Refcomp v. Axa et al. (Judge Berger), which does subrogation in a cross-border conflict, focusing on art. 23 of the Brussels I Regulation. The result is that the jurisdiction clause in the original contract is not effective against a later successor in rights unless they have actually consented to it.

AG Jääskinen applied Pfleiderer to an Austrian competition law dispute, arguing that the would-be plaintiff in private damages action should have access to the full file regardless of whether any of the parties to the original administrative investigation consent under the principle of effectiveness. (The competition authority had refused.) The AG also considered whether it is OK that the rule for access to such documents is the same for EU competition law and national competition law disputes, but different from the rule for other kinds of national law disputes, arguing that the principle of equivalence is not violated here. Bundeswettbewerbsbehörde v. Donau Chemie et al. Cf.  Eutopia Law Blog

AG Mengozzi approved, in general, of a Luxembourg rule that required residence in Luxembourg for financial aid for students, regardless of where they studied. He just left it to the Luxembourg court to decide on the ultimate question of proportionality. So it appears that after Dutch and Austrian cases, we have now finally found a system that is consistent with EU law, the key being that the Luxembourg rule does not require residence for more than a few months. Giersch et al. v. Luxembourg (DE, FR) Cf. Eutopia Law Blog

Following last week’s Bank Mellat v. Council, this week the Council lost another Iranian asset freeze case against a bank in Bank Saderat Iran v. Council. Both judgements are by Judge Pelikánová. Cf. UK Human Rights Blog

This Week in Luxembourg

Apparently it took a Grand Chamber judgment (Judge Ó Caoimh) to explain why Mr. Radu’s attempt to throw the entire ECHR and Charter at his European Arrest Warrant should fail. In the end, they still ignored some of his more creative arguments, by “taking the first four questions and question six together” (question 5 was inadmissible on the grounds that it was hypothetical) and distilling them into a question about hearing the suspect before issuing an EAW, an idea that is clearly unworkable. Cf. AG Opinion, which is much more exciting, because AG Sharpston actually tried to answer the questions posed.

Just like Radu, the glorious Bulgarian case of Belov also ended in an anti-climax. Rather than analyse whether it was unlawfully discriminatory for the plaintiff to have his electricity meter installed 7 metres above the ground because he lives in a Roma neighbourhood, the Court held that the referring court was not a court, and that the question was therefore inadmissible. Cf. Recent Developments in European Consumer Law Blog

In the area of compensation for denied boarding in air transport law, the Court (Judge Šváby) held that the closing of large chunks of air space due to the eruption of Eyjafjallajökull in 2010 counts as “extraordinary circumstances”. The Court also gives some guidance as to which kinds of sums may still be claimed. McDonagh v. Ryanair Cf. Recent Developments in European Consumer Law Blog, Eutopia law and UK Human Rights Blog (This still leaves the question of whether extraordinary circumstances also covers the days Delta Airlines needed to get its timetable back in order after Sandy last year, given that others did it faster. They refused to pay me compensation, but then they would, wouldn’t they?)

AG Mengozzi had a fairly abstract, but interesting problem of public procurement law: Given that the main public procurement directive applies only to “bodies governed by public law” (art. 1(9)(2)(c), what are we to make of the Ärztekammer in Germany? It is in Annex III to the directive (p. 171), but that only creates a rebuttable presumption (cf. Hans & Christophorus Oymans v. AOK Rheinland/Hamburg). The AG relies on the fact that the Ärztekammer is funded with private dues to conclude that the presumption is in fact rebutted.

Surprisingly, AG Jääskinen left a small window open for the possibility that the Italian regulation for opticians that was at issue in Ottica New Line v. Comune di Campobello di Mazara (NL, DE,FR) might be justified under 49 TFEU. He just ruled out the possibility that requiring a minimum distance between them could be justified on the grounds of public health, while leaving open justification as part of an overarching scheme for providing public health care. Realistically, though, it’s not going to happen.

AG Wathelet concluded that making the membership and fees for a sectoral body (equivalent to a “produktschap” in the Netherlands) mandatory was not state aid, given the 2004 Pearle judgment which already settled that question for the Netherlands. The key point is that the state is not providing state resources, nor controlling this money through some other means. Doux Élevage SNC and Coopérative agricole UKL-ARREE v. Ministère de l’Agriculture and Comité interprofessionnel de la dinde française (CIDEF) (NL, DE, FR)

More contentiously, AG Wathelet also went near the issue of detention for illegal aliens pending their return to their home country. The AG argues that such detention is unlawful under Directive 2005/85 once the alien has asked for asylum, unless abuse of right can be shown. (Which, in an asylum context, will not easily be the case, I imagine, although this particular person might come close, which is why the AG brought it up unprompted.) Arslan (NL, DE, FR)

Tackling one of the less headache-inducing questions that have ever been asked about marketing authorisations for medicinal products under Directive 2001/83, AG Sharpston argues that when a marketing authorisation is given specifying the container the product is to be distributed in, you can’t – subject to some small exceptions – change the container without getting a new marketing authorisation. Novartis v. Apozyt

Cross-border doctors (in the free movement of services sense) received some help from AG Cruz Villalón, because he argued that the approach taken by the German Berufsgericht for the medical profession with regard to pricing was too probably rigid, and that their criterion for deciding what constituted unlawful advertising was certainly too vague. Konstantinides (NL, DE, FR)

In the TRIPs case of Daiichi Sankyo and Sanofi-Aventis v. DEMO Anonymos Viomichaniki kai Emporiki Etairia Farmakon (NL, DE, FR), AG Cruz Villalón takes a menu approach to answering the question. He argues:

1.       That this area of TRIPs (medical patents) is still a Member States competence, meaning that the Court shouldn’t go near it.

2.       In the alternative: That art. 27 TRIPs does not have direct effect.

3.       If the Court doesn’t like either of those: That the plaintiffs have not obtained a patent through the entry into effect of TRIPs.

AG Mengozzi applied the principle of ne bis in idem to the requirement for a corporation to publish its accounts in time. The Austrian law in question might leave somewhat to be desired, from aRechtsstaat point of view, but the AG concluded that this did not rise to the level of a violation of the free movement of services or establishment, of ne bis in idem, the rights of defence or the right to an effective remedy. TEXDATA Software GmbH (NL, DE, FR)

Apparently the Commission and some Member States are still arguing about the national allocation plans for emission rights. AG Kokott argued that the General Court was wrong to annul the Commission’s decision against Latvia, and that it should be asked to try again. Commission v. Latvia (NL, DE, FR)

In the General Court, an unsuccessful tenderer failed to obtain a second chance in Cosepuri v. EFSA, and another (Iranian) asset freeze was shot down in Bank Mellat v. Council (Judge Pelikánová). Cf. UK Human Rights Blog

Finally, the EFTA court this week rejected attempts by British and Dutch investors (by way of the EFTA Surveillance Authority, i.e. the European Commission of EFTA) to make the state liable for its failed deposits insurance scheme under Directive 2009/14. EFTA Surveillance Authority v. Iceland Cf. EJIL: Talk! and European Law Blog

This Week in Luxembourg

The Grand Chamber (Judge Juhász, the usual competition judge) upheld the General Court’s judgment in Tomkins v. Commission, where the General Court annulled a decision making the parent liable for the cartel infringement of its subsidiary for a period prior to acquisition of said subsidiary. Tomkins only has to pay from the moment it acquired Pegler Ltd. Commission v. Tomkins

The Grand Chamber (Judge Von Danwitz) also stood up for the right of all Europeans to see short news reports about Europa League games. In Sky Österreich v. Österreichischer Rundfunk, it held that art. 15(6) of Directive 2010/13 is not in violation of art. 16 and 17 Charter, which protect the freedom to conduct a business and the right to property, respectively, or art. 1 of Protocol 1 to the European Convention on Human Rights. Cf. IPKat Blog and the Recent Developments in European Consumer Law Blog

The Danish tax rates for seafarers case of 3F v. Commission (Judge Ó Caoimh) is fun particularly because it is already the second time the case is before the ECJ.

·         3F originally asked the General Court to annul the Commission’s state aid decision of no objection in January 2003. (Following a complaint made in August 1998.)

·         In 2007, the General Court dismissed the action as manifestly inadmissible, on the grounds that neither the union nor its members were individually concerned by the Commission’s decision.

·         This order was overturned – through the pen of Judge Ó Caoimh, in 2009. 3F v. Commission

·         On remand, the action was once again rejected, this time on the merits. By now it is September 2011. 3F v. Commission

·         Now, in January 2013, this judgment is upheld by the Court. 3F v. Commission

In Commission v. Spain (Judge Kasel) the Court holds that Spain failed to comply with a Commission Decision requiring it to recover unlawful state aid. Before it gets there, though, it discusses some issues to do with the doctrine of res judicata in EU law in order to decide to what extent the present action overlaps with Case C-499/99, Commission v. Spain (2002).

In a case dealing with state aid law in the context of bankruptcy proceedings, the Court (Judge Arabadijev) set aside the judgement of the General Court in Case T‑11/07 Frucona Košice v Commission, where that court had upheld the Commission’s finding of unlawful state aid. The Court held that the Commission had failed to take into account the duration of the bankruptcy proceedings in applying the private creditor test. The case is remanded for further examination. Frucona Košice v. Commission

The Court (Judge Toader) handed down another betting case, this time coming from Greece. The conclusion is that Greek law is found in violation of EU free movement law. Stanleybet et al. v. Ypourgos Oikonomias kai Oikonomikon and Ypourgos Politismou

AG Bot argued that the General Court was wrong to decide that a person whose assets had been frozen pursuant to the Al Qaeda asset freeze list could no longer sue to have that act annulled after their name was already voluntarily taken off. The AG argues that the applicant still has an interest in preventing a recurrence in the future, and that a positive outcome would rehabilitate him.

AG Sharpston tried to bring copyright law into the 21^st century in an opinion about German printers. (The devices, not the people.) VG Wort v. KYOCERA Document Solutions et al.

In the General Court, this week, there was another Bud case, this time on remand from the Court of Justice’s judgment from March 2011. This time, the Czechs lost. Budějovický Budvar, národní podnik v. OHIM Cf. IPKat Blog

Last Week in Luxembourg

Last week’s Grand Chamber judgment deals with two of my favourite things: The Aarhus Convention and Elchinov-style right to as prejudicial questions issues. Unsurprisingly, the Court (Judge Bay Larsen) concluded that the Slovak Supreme Court could even ask a prejudicial question while it was acting on remand from the Constitutional Court. As to substance, the Court concluded in favour of the plaintiffs, i.e. in favour of the environment. Križan et al. v. Slovenská inšpekcia životného prostredia

In Geodis Calrberson v. FranceAgriMer the Court (Judge Safjan) found that Article 16 of Commission Regulation 111/1999 is in the nature of an arbitration clause within the meaning of Article 272 TFEU. This means that the plaintiff in the original French case loses, and that they will have to start an identical case in Luxembourg to get the money they claim they are owed.

The Unfair Commercial Practices Directive is exhaustive in the sense that it precludes a national court from ordering the cessation of a commercial practice not covered by Annex I to that directive on the sole ground that the practice has not been the subject of prior authorisation by the competent administrative authority, without itself carrying out an assessment of the unfairness of the practice in question against the criteria set out in Articles 5 to 9 of that directive. Köck v. Schutzverband gegen unlauteren Wettbewerb

Mr. Zakaria had his papers checked extensively when he flew into Riga airport in 2010. Ultimately, he was allowed into the Schengen area, but he found his treatment “offensive and provocative”, and the delay caused him to miss his connection. So new he’s trying to figure out how to sue the Latvian border police. Unfortunately, he cannot rely on art. 13(3) of the Schengen Borders Code, because that only covers a refusal of entry.


In a case of significant importance, AG Kokott looked at the definition of a “regulatory act” under art. 263 TFEU, an issue so far tackled only by the General Court in its Microban judgment and in its Canadian seal products order. In her opinion, the AG endorsed the General Court’s interpretation, which held that legislative acts enacted through the normal legislative procedures were not “regulatory”. As a result, the trade in seal products continues to be banned. Inuit Tapiriit Kanatami and Others v. Parliament and Council

AG Mengozzi delivered four opinions on suits brought by the Commission against Council decisions under the state aids Regulation 659/1999 regarding aid for investment in the purchase of formerly state-owned agricultural land in four different new Member States. The problem in each case is that the Council cleared an aid scheme that the Commission thought they’d already forbidden. Commission v. Council (1, 2, 3, 4)


In the General Court, Bruno Grollnisch, MEP lost his suits against the Parliament’s decisions to lift his immunity and to not defend it. Grollnisch v. Parliament (FR) Cf. Journal du Marché Intérieur blog

More interestingly, the General Court examined a complaint by an Italian motorway company against a Commission decision not to pursue a state aid case against one of its competitors. The Court (Judge Pelikánová) concluded that the applicant was only partially individually concerned, which reflects some interesting issues regarding the extent to which motorways compete. To the extent that the case is admissible, it is rejected on the merits. Aiscat v. Commission (NL, DE, FR)


Earlier this month, there was a rare example of the use of art. 99 Rules of Procedure, whereby the Court may deal with an “easy” prejudicial question by reasoned order instead of with a full oral hearing and judgement. I feel confident in my prediction that this will happen more often in the future. Brunovskis v. Lauku atbalsta dienests (FR)

Victor Hugo

It was [Victor] Hugo, who, during the International Peace Congress that was held in Paris in 1849, declared, “A day will come when you France, you Russia, you Italy, you England, you Germany, you all, nations of the continent, without losing your distinct qualities and your glorious individuality, will be merged closely within a superior unit and you will form the European brotherhood.” The idea of the European Union has by now been allowed to seem so narrowly bureaucratic that it is hard for us to recall that it once shone with the light of a romantic vision. Each year, the British historian John Julius Norwich publishes a “Christmas Cracker,” a commonplace book full of fragments of funny reading from the pas twelve months; for 2012, he includes Gerry Hanson pointing out that, while the Lord’s Prayer contains sixty-nine words, and the Declaration of Independence two hundred and ninety-seven, an E.U. directive on duck eggs contains twenty-eight thousand nine hundred and eleven words.

O.K., it has its absurdities. But the dream of European union was for Hugo not just a way of preventing the disasters of war and approaching the problem of poverty; it was a larger way of insisting that cultural pluralism—indeed, pluralism of every kind—was essential to freedom. Hugo kept Republican liberalism from seeming fatuous by insisting that the liberal Republican has a singular, mystic insight into the intrinsic doubleness of life. At the height of the twentieth century’s calamities, Hugo’s Romantic Republicanism could seem fragile and unconvincing; the Javerts then held the floor. There are many things wrong or encumbering or even foolish about the European Union, but when we watch “Les Misérables,” we should save a thought for how much of Hugo’s vision has now been achieved. What Hugo wanted, and what he used all that melodramatic and storytelling power to promote, was a Europe accepting in its pluralism, and widely based in its prosperity. His ghost now has it.

Read more: http://www.newyorker.com/online/blogs/books/2012/12/the-persistent-greatness-of-victor-hugos-les-miserables.html

Today in Luxembourg

Today the Court handed down its last judgements before its Christmas vacation:

The Grand Chamber (Judge Bay Larsen) clarified the meaning of art. 12(1)(a) of Directive 2004/83 in a case about three Palestinian refugees. Do they qualify as refugees, given that they originally qualified for UN support in a refugee camp in the region, but had to leave for reasons beyond their control? El Kott et al. v. Bevándorlási és Állampolgársági Hivatal

The Grand Chamber (Judge Šváby) also looked at an Italian public procurement case (cf. Directive 2004/18), where the Azienda Sanitaria Locale di Lecce asked the university of Salento to study the earthquake-sensitivity of various hospitals without a formal tender. While punting to the national court, the ECJ says that such tender-less contracting between public entities is not OK:  

“[1] where the purpose of such a contract is not to ensure that a public task that those entities all have to perform is carried out,

“[2] where that contract is not governed solely by considerations and requirements relating to the pursuit of objectives in the public interest or

“[3] where it is such as to place a private provider of services in a position of advantage vis-à-vis his competitors.”

Azienda Sanitaria Locale di Lecce and Università del Salento v. Commission

For the second time in as many weeks, the Court handed out a fine for non-compliance with a judgement. Following last week’s Commission v. Spain (€ 20 million + € 50.000 per day), now it is Commission v. Ireland (Judge Bonichot), to the tune of € 2 million + € 12.000 per day. The offending case is Commission v. Ireland (2009, also by Judge Bonichot) about Directive 75/442 on waste. In a separate case, Ireland was ordered to pay a further € 1,5 million for failing to comply with a 2006 infringement case about environmental impact assessments. Commission v. Ireland (Judge Toader)

Heineken (NL, FR) and Bavaria (NL, FR) lost their appeals in the Dutch Beer Cartel case (NL). (Both judgements by Judge Silva de Lapuerta.) The General Court had annulled the non-price collusion part of the decision, and had ordered a further reduction of the fine as compensation for the extraordinary length of the procedure. Cf. Case T-240/07, Heineken v. Commission and case T-235/07, Bavaria v. Commission.

In the interesting state aid litigation of Mitteldeutsche Flughafen and Flughafen Leipzig v. Commission, the appeal was likewise rejected (judge Jarašiūnas). As before the General Court (NL, DE, FR), the appellants failed to convince anyone with their claim that airport construction is not an economic activity. Cf. European Law Blog

The Court (Judge Lõhmus ) affirmed that a trademark can be put to “genuine use” even if it is used in only a single Member State. Leno Merken v. Hagelkruis Cf. the IPKat

In the category of “really?” we have Gbagbo et al. v. Council, where Laurent Gbagbo and his associates are trying to get their asset freezes annulled. The General Court struck the cases from the docket on the grounds that they were manifestly inadmissible because they were untimely. Gbagbo argued that he didn’t know about the Decision in question in time, because of distance and because of the war (!). AG Cruz Villalón now argues that the General Court should have at least heard the parties on this point.

Ultimate Guarantor

Despite Marc de Werd's excellent newsletter on EU and ECHR law, I seem to have missed Longa v. the Netherlands. The problem of that case is pretty simple: Are individuals who are detained by the ICC "within the jurisdiction" of the Netherlands in the sense of art. 1 ECHR? The Court's answer is as follows:

73. The applicant was brought to the Netherlands as a defence witness in a criminal trial pending before the International Criminal Court. He was already detained in his country of origin and remains in the custody of the International Criminal Court. The fact that the applicant is deprived of his liberty on Netherlands soil does not of itself suffice to bring questions touching on the lawfulness of his detention within the “jurisdiction” of the Netherlands as that expression is to be understood for purposes of Article 1 of the Convention. 

74. It is however the applicant’s case that now that he has given his testimony, his continued detention by the International Criminal Court lacks a basis in law. The vacuum thus created can be filled only by the Netherlands legal order, in which the Convention is directly applicable.

75. The Court finds that as long as the applicant is neither returned to the Democratic Republic of the Congo nor handed over to the Netherlands authorities at their request, the legal ground of his detention remains the arrangement entered into by the International Criminal Court and the authorities of the Democratic Republic of the Congo under Article 93 § 7 of the Statute of the International Criminal Court. This is reflected in Trial Chamber I’s Order of 1 September 2011 and its Decision of 15 December 2011 (see paragraphs 23 and 24 above), which make it clear that the International Criminal Court is waiting to comply with its obligation under Article 93 § 7 (b) of its Statute to return the applicant to the Democratic Republic of the Congo once the reason for his presence on its premises has ceased to exist. There is thus no legal vacuum.

The Dutch courts have now followed this approach, as they are required to do by the Dutch constitution. Today, the Court of Appeals in The Hague held that three comparable individuals to Mr. Longa - defence witnesses detained by the ICC who asked for asylum in the Netherlands - are not being held unlawfully, but are rather being held pursuant to art. 93(7) Rome Statute, even though their testimony is already over. (Cf. par. 2.5, here.)

While I understand where the ECtHR is coming from, I find this result fundamentally problematic. This has to do with a sense of conservatism, but it is also a corollary of my rather drastic formalism when it comes to law generally and international law in particular. Let me explain each in turn.

From a vague sense of conservatism, I think it is important to protect The Great Writ. I know it is an English thing, and I know that it is not really under attack here, but I still don't like the proposition that "the fact that the applicant is deprived of his liberty on Netherlands soil does not of itself suffice to bring questions touching on the lawfulness of his detention within the “jurisdiction” of the Netherlands". Wherever else the Writ might run, it should at least run to every square centimetre of the Kingdom in Europe. The ICC Detention Centre is not so much a Centre as it is 12 cells in the former "Orange Hotel" in Scheveningen, under the same roof as the prisoners of the ICTY and as any number of ordinary Dutch prisoners. All of them should, ultimately, be able to ask a Dutch court to review the lawfulness of their detention.

This does not mean, of course, that the Dutch court then has to examine the issue exhaustively, i.e. de novo. It would be perfectly fine for the Court to defer to the decision of the Trial Chamber of the ICC, unless there is a good reason not to. In this case, the ultimate answer is fine: the detainees are held on the basis of art. 93(7). The ICC's Trial Chamber decided that this provision is still the legal basis even after the trial, during the period that the witnesses are waiting for the conclusion of their asylum proceedings, given the fact that they were being detained in Congo in the first place, before being sent to The Hague. This judgement is not unreasonable, so there is no violation of art. 5 (or 13) ECHR. Easy enough.

Ultimately, the reason why I find it important to take this extra step, illusory as it might be in the vast majority of cases, is that I am worried about cases like Kadi.

In Kadi, the Grand Chamber of the European Court of Justice, through the mouth of the Dutch Judge Timmermans, pretended that it had the authority to let human rights trump the obligation of the European Union to comply with UN law without ever explaining where that authority came from. Being quite formalist about such things, I prefer the approach of the General Court, which held that it did not have the right to carry out judicial review of the UN Security Council resolution in question, or of the EU's implementing legislation, except to the extent that a violation of ius cogens was alleged. (Cf. also this post about the Dutch Srebrenica litigation.) In general, the rule is that "in the event of a conflict between the obligations of the Members of the United Nations under the (...) Charter and their obligations under any other international agreement, their obligations under the (...) Charter [should] prevail", and that includes obligations that flow from the EU Treaties, which are still international agreements, and obligations that flow from the European Convention on Human Rights. (Cf. also the ECtHR's Nada case.)

The problem with this approach is that it leaves Mr. Kadi up the creek without a paddle. He can't get judicial review in Sweden, because the Swedish courts are bound by directly effective EU law, which trumps even the Swedish constitution. He can't get judicial review in Luxembourg, because UN law goes above EU law. And finally, he can't get judicial review at the UN level, because the ICJ does not allow private citizens to bring a case, and no other review body is available. It is this conundrum that caused the ECJ to make up a remedy out of whole cloth.

Personally, I prefer to see such creativity at the level of maximum legitimacy, which is to say at the level of the state. In my view, that is what sets the state apart from all other levels of government: The state is the ultimate guarantor of the compliance of all the other levels with the most basic aspects of Rechtsstaat. When the normal rules of law threaten to create a legal vacuum, it is at the level of the state that a solution must be found. Normally, that solution will involve a deliberate breach of international law by the state. (As a general matter, a state cannot plead domestic legal rules as an excuse for a failure to comply with international law.)

There is ample precedent for this approach, most famously the German Constitutional Court's Solange-I ruling, where the Court said:

in the hypothetical case of a conflict between Community law and a part of national constitutional law or, more precisely, of the guarantees of fundamental rights in the Basic Law, there arises the question of which system of law takes precedence, that is, ousts the other. In this conflict of norms, the guarantee of fundamental rights in the Basic Law prevails as long as the competent organs of the Community have not removed the conflict of norms in accordance with the Treaty mechanism.

(Translation courtesy of the Institute for Transnational law at the University of Texas at Austin.)

In some countries, such as the Netherlands, this is a result that is difficult to achieve. Under Dutch law, international law has direct effect even when it contradicts the constitution. (Treaties that contradict the constitution simply have to be ratified with a supermajority.) However, this means there is all the more reason to create some freedom of manoeuvre in this regard. Dutch courts should avoid saying anything that permanently rules out the use of the Ultimate Guarantor power. After all, all those who are present in the Kingdom in Europe should be able to rely on the Dutch courts to protect them if no one else will.

This Week in Luxembourg

The Grand Chamber (Judge Arabadjiev) ordered Spain to pay a € 20 million lump-sum fine plus € 50.000 per day for failure to comply with a state aid judgement. Just for fun, look at the timeline: Commission Decision: December 1989, Action for annulment brought: December 1999, Judgement delivered: July 2002, first Commission requests for information: 2004, Commission letter of formal notice: November 2009, Art. 260 TFEU action brought: March 2011, Judgement: December 2012.  Commission v. Spain

Today was the long-awaited (by competition lawyers) ruling in Expedia v. Autorité de la concurrence and Others. AG Kokott took a serious trip in uncharted territory in this case, when trying to sort out what to do with a case that is based on a case of behaviour that is anticompetitive by object but not by intent, and that is alleged to be de minimis. The Court (Judge Lõhmus) agreed that the sole criterion is that there has to be an “appreciable restriction of competition”, but otherwise skipped over the details. Cf. Competition Policy Blog and Kartellblog

To the surprise of (pretty much) no one, the Court (Judge Von Danwitz) followed AG Mengozzi and slapped down the Parliament’s most recent attempt to reduce its number of trips to Strasbourg by one. France v. Parliament Cf. Euractiv, ECJ Blog and France v. Parliament (1997)

Yet more Court (Judge Ó Caoimh) interference in what we might consider the outer reaches of social security: “Article 45 TFEU must be interpreted as precluding legislation of a Member State which makes the grant to employers of a subsidy for the recruitment of unemployed persons aged over 45 years subject to the condition that the unemployed person recruited has been registered as a job seeker in that same Member State, in the case where such registration is subject to a condition of residence in the national territory”. Caves Krier Frères v. Directeur de l’Administration de l’emploi

In Forposta and ABC Direct Contact v. Poczta Polska, the Court (Judge Juhász) held that Polish public procurement law was a little bit too generous with automatically excluding bidders for past misconduct. Cf. art. 45(2)(d) of Directive 2004/17, which only allows such exclusion in cases of “grave professional misconduct”.

AG Jääskinen delivered the second batch of opinions in the 1^st railway package infringement cases:

• Commission v. Luxembourg (NL, DE, FR): The AG agreed with the Commission that the capacity allocation body was insufficiently independent from the incumbent passenger transport company.
• Commission v. Poland (DE, FR): The AG agreed with the Commission that Poland had failed to create sufficient incentives for the infrastructure company to reduce its operational costs and the track access charges, and that it had unlawfully allowed indirect costs to be taken into account for the calculation of the track access charges. The AG did not agree, however, that Poland had failed to create the circumstances for the infrastructure to be managed without structural financial shortfalls, or that it had failed to sufficiently unbundle.
• Commission v. Czech Republic (DE, FR): The AG agreed with the Commission that the Czech legal maximum for track access charges was unlawful, that it failed, like Poland, to create proper cost-reduction and access charges-reduction incentives, that its track access charging system is insufficiently performance-related, and that the Czech transport ministry has too much power over the regulator. He disagreed, however, with the Commission’s objection to the range of costs that are taken into account for access charging and its objection to the insufficient scope of powers of the regulator.
• Commission v. France (NL, DE, FR): The AG agreed with the Commission that the French capacity allocator is insufficiently independent from SNCF, and that France does not have a sufficient incentive system for the infrastructure manager as required by art. 11 of Directive 2001/14. He disagreed with the Commission, however, regarding the need for an incentive system more generally.
• Commission v. Slovenia (NL, DE, FR): Slovenia, too, was judged to have a capacity allocator who is insufficiently independent from its incumbent operator, an infrastructure company insufficiently incentivised to reduce costs and access charges, to improve reliability and performance more generally. 

AG Jääskinen also considered the clash between the powers of football and the powers of the EU. He concluded that UEFA’s and FIFA’s appeals against the judgements of the General Court should be dismissed. (Cf. General Court: UEFA v. Commission, FIFA v. Commission and FIFA v. Commission) The European and World Championships stay on the open net. UEFA and FIFA v. Commission

On the very same day that the Parliament voted to approve the unitary patent, AG Bot argued that the action against this enhanced cooperation project by the two nay-sayers, Spain and Italy, should be rejected. He argued that the most interesting objection – of  failure to respect the judicial system of the Union (cf. opinion 1/09) – was inadmissible, because it was too early. Also fun: the AG did not seem to have a problem with judging the “last resort condition”. I would have thought it was non-justiciable. Spain and Italy v. Council

AG Kokott had an opinion in Ziegler v. Commission, rejecting a stack of objections against the General Court’s judgement regarding its application of the de minimis notice and the motivation of the level of the fine, including the alleged failure of the Commission to take into account the applicant’s financial difficulties in setting the fine.

Former Judge Melchior Wathelet has returned to Luxembourg, this time as an Advocate-General. In his first opinion, he argues that “European Union law must be interpreted as meaning that, where a Member State levies a tax incompatible with European Union law – in the present case, Article 110 TFEU – that State must repay the amount of the tax and pay interest on that amount from the date of the payment by the taxpayer”, a conclusion he reaches without invoking more general principles of EU law or the Charter. Irimie v. Administraţia Finanţelor Publice Sibiu and Administraţia Fondului pentru Mediu

In the General Court, Electrabel lost its competition law challenge against Commission Decision C (2009) 4416, whereby the Commission imposed a fine of € 20 million for having gone through with the acquisition of the Compagnie nationale du Rhône before notifying the Commission. Ultimately, the acquisition was approved, but Electrabel still got a fine for being four years late asking. Electrabel v. Commission (FR)

In yet another asset freeze case relating to the Iranian nuclear programme, the Court annulled the Council’s decision against Sina Bank for a failure to state (sufficient) reasons. Sina Bank v. Council

Also in the General Court there were four challenges against the Commission’s Decision in the Calcium Carbide and Magnesium cartel case, none of them successful. The total haul stays at € 61 million, with Akzo Nobel being the snitch that got away for free. Novácke chemické závody v. Commission, 1. Garantovaná a.s. v. Commission, Ecka Granulate and non ferrum Metallpulver v. Commission and Almamet v. Commission Cf. the Antitrust Hotch Potch regarding the question of whether the Commission sufficiently took into account the applicants’ ability to pay