Last Week and This Week in Luxembourg

In rail transport news, the Court (Judge Borg Barthet) took the same approach in Westbahn v. ÖBB-Infrastruktur that AG Jääskinen did. That is to say, the Court resolved the problem in favour of more competition and a better service for passengers. I discussed the issues of the case here in June, i.e. before the AG published his opinion. Cf. also Recent Developments in European Consumer Law Blog

Moving on to air transport, the Court gave some more details on the rights of passengers. In Moré v. KLM, it held that the limitation period for a claim for damages due to denied board is that of the law of the Member State, not the 2 year limit of the Montreal Convention. At the same time, in Sánchez et al. v. Iberia, the Court invoked the Montreal Convention to protect the right of passengers to sue for lost or damaged baggage. Both judgements are by Judge Šváby. Cf. Recent Developments in European Consumer Law Blog

E.On lost its appeal against the decision by the General Court to uphold the fine imposed by the Commission for a broken seal. This may well have been the most expensive seal in history, because it cost E.On € 38 million. E.On v. Commission (Judge Lenaerts)

In terrorism/asset-freeze law, the Court gave the Council and the Member States some more leeway again. In Stichting Al-Aqsa v. Council, the Court (Judge Von Danwitz) forgave the Council a rather significant procedural SNAFU. (The General Court ruling to the contrary is here.) And in Council v. Bamba, the Court (Judge Lenaerts) is more generous than the General Court about the factual reasons offered by the Council for its decision to impose an asset freeze on Ms. Bamba for her involvement in the Gbagbo regime in Ivory Coast. Cf. Verfassungsblog (in German)

In Gothaer Allgemeine Versicherung et al. v. Samskip, the Court (Judge Lenaerts) is having some fun with international jurisdiction: the relevant contract purports to give jurisdiction to Icelandic courts. The plaintiffs sued in Belgium, where the courts – on appeal – held that they did not have jurisdiction, because the case should have been brought in Iceland. So the plaintiffs sued in Germany. Question? Is the German court bound by the Belgian determination that the case should go to Iceland? The Court says it is, relying on art. 32 and 33 of Regulation 44/2001.

There was another case on medical devices. The holding is that “the concept of ‘medical device’ covers an object conceived by its manufacturer to be used for human beings for the purpose of investigation of a physiological process only if it is intended for a medical purpose.” Brain Products v. BioSemi et al. (Judge Juhász)

Eur-Lex has started publishing Court orders on its main jurisprudence page as well, and it is interesting to see the Court (Judge Lõhmus) kicking out a Romanian prejudicial question about a salary decrease for public officials as manifestly inadmissible. Apparently, prejudicial questions are starting to become a work-load problem for the Court, and it will be interesting to see if they respond by kicking more questions out at an early stage. Corpul Naţional al Poliţiştilor – Biroul Executiv Central v. Ministerul Administraţiei şi Internelor et al. (FR)

Similarly, the action for annulment in Städter v. ECB (DE, FR) is also summarily rejected because it is untimely. Cf. art. 181 of the new Rules of Procedure. (Judge Fernlund)

In Commission v. Systran (NL, DE, FR), AG Cruz Villalón argued that the General Court was wrong to decide that it had jurisdiction to decide the case. (Cf. here.) While Systran, the original applicant, brought the action in tort, he argued that it is better viewed as a contractual dispute that should be heard by the national courts in Luxembourg. (Cf. art. 340 TFEU.) The Commission allegedly violated the copyrights of certain computer programmes it purchased.

In Sweetman et al. v. An Board Pleanala AG Sharpston discussed the precautionary principle in the context of the Habitats Directive.

In the infringement case of Commission v. Poland, AG Cruz Villalón argued that the Commission had “moved the goalposts” since its reasoned opinion, meaning that the action should be declared inadmissible for most of its heads of complaint. (In the alternative, the AG argues that Poland should lose.)

The General Court considered some complaints about two inspection decisions taken by the Commission against companies that produce electricity cables. The Court mostly sides with the Commission, but holds that the decisions were too broad in that the Commission did not have reasonable grounds for suspecting an infringement anywhere except in the high voltage underwater cable sector. Nexans v. Commission and Prysmian v. Commission (FR) Cf. Kartellblog (in German)

In competition law, Akzo Nobel won interim relief from the President of the General Court in its attempt to keep certain confidential information confidential. Akzo Nobel v. Commission

Spain lost in its action for annulment of a Commission decision reducing its fishing quotas as compensation/punishment for previous overfishing. Spain v. Commission

Finally, in the UK the Court of Appeals held that the rule that takes away UK citizens’ right to vote after 15 years of living abroad is not a violation of art. 21 TFEU. R. (on the application of Preston) v. Wandsworth LBC Cf. Eutopia Law Blog

Subsidiarity: Women Quotas (2)

For reasons passing understanding, Mrs. Reding is still keen to have the world think that she made it into the College of Commissioners only because she's the only woman politician they could find in Luxembourg, rather than because she is actually competent. (Especially for a small Member State, coming up with a woman candidate is essential if one is to snatch up a coveted portfolio or Vice-Presidency.) Hence the presentation, last week, of the official Commission proposal for a Directive on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures. Since I already subjected this proposal to my patented Subsidiarity Test once before, I thought I'd look at the finished product.

As always, I approach this problem in the way I would like the Court to, by looking at the Commission's own arguments and judging whether they are at least plausible. In dubio pro reo, when in doubt the dealer wins, but the argument has to achieve at least some minimum level of plausibility. Moreover, it has to be internally consistent.

In the gender quotas proposal - it is not strictly speaking about women quotas, because it treats men and women equally, with the minimum representation for each being 40% - the discussion of subsidiarity is on page 9-10. The key point raised in the opening paragraphs is that gender equality is a fundamental objective of the Union, which is correct but irrelevant. This is what it says in art. 19 TFEU:

1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex,(...) .

(Emphasis mine.)

One of those limits is the principle of subsidiarity, a principle that applies in all cases, unless the Treaties give the Union an exclusive competence, i.e. a right to act that is not shared with the Member States. That is quite clearly not the case here. Incidentally, the proposal is not based on the general equal treatment article, but on art. 157(3) TFEU:

3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

(I would like to note for the record that, assuming that it is shown that less drastic measures do not work, I have no problem with art. 157 TFEU as a legal basis for this proposal.) Then the argument once again goes on to say that "action by Member States individually will not achieve the objective of a more balanced gender representation on company boards (...) by 2020 or at any point in the foreseeable future." This, again, seems quite correct but also quite irrelevant. The mere fact that the Member States "do not show any willingness or face resistance [sic]" is not sufficient reason to propose a directive at the European level. Quite the contrary, the manner in which European legislation is frequently used to strong-arm Member States into doing things they would never be willing to do at the national level alone is exactly what gives the EU such a bad reputation. The fact that desirable but unpopular legislation can be passed at the EU level because of the lower level of public scrutiny there is unfortunate and not to be exploited at the pain of even lower levels of legitimacy for the EU.

Fortunately, the proposal proceeds to make an argument that is at least based on positive and negative spillovers. It argues that "Member States may indeed hesitate to regulate in this area on their own, as they could perceive a risk of putting their own companies at a disadvantage with companies from other Member States." Wit the reader's permission, I would like to leave this point to one side for the moment, and return to it later. But please make sure to remember it.

Next, the Commission argues that differing rules in this area form an obstacle to the functioning of the Internal Market. That is still rubbish, just like it was when I discussed the draft proposal in September. Company law rules vary in many, many respects, which is why the EU has passed more than a dozen harmonizing directives in the last four decades. As long as every company has to comply only with the rules of its own home country - and it is difficult to see how it could be different -  I don't see how this creates a substantial problem.

Which brings us to competitiveness and growth. Remember how, two paragraphs ago, the Commission explained that the Member States might be hesitant to put their own companies at a disadvantage? Well, now it turns out that having gender balance on the board of companies is good for competitiveness and growth. Yes, feel free to take a moment to admire the awe-inspiring internal contradiction at work here. 

[pause]

Now I believe that the balance of academic research shows that teams work better if they include a reasonable balance of men and women. The first question is, however, to what extent that research applies here. As I already wondered when I spoke with Sophie in 't Veld MEP about the appointment of Yves Mersch to the executive board of the ECB, is meeting once a week - or, in the case of most companies' supervisory boards, once a quarter - sufficient to make a group of executives a "team" as that concept is used in the relevant management literature? Having read some of that literature, I highly doubt it. A team, in the theoretical sense, involves a much closer collaboration with a much greater frequency, something that is more commonly found lower on the corporate ladder.

But even if we grant that an economic benefit is to be expected from a gender balanced board, why does this justify EU-level legislation? As noted, if this were true, the Member States would be fools not to enact such laws on their own initiative. The fact that they do not suggests that they are not convinced. Moreover, if this were true, the companies in question would be fools not to appoint more women on their boards voluntarily. Why don't shareholders demand more women executives? The same goes for the argument that it is important to make "full use of the talent pool of the best qualified women". This final version of the proposal does offer one new argument in reply:

"[The low numbers of women board members that are to be expected absent legislation] would not be sufficient to bring about the “critical mass” of women on boards across the Union which, as research shows, is needed to generate positive effects on company performance."

This is a tantalising statement, which makes one wonder about that "research". Fortunately, the impact assessment that goes with the proposal gives more details about said research:

As to the share of women which is necessary to make a substantive change, it has to be noted, that one or two women are easily marginalised when their presence in a larger group is modest and they are viewed as a token. Only if the size of the female group increases to the point that it is no longer a token minority this can this cause a fundamental and sustainable change in the boardroom and enhance corporate governance. Only then are women no longer seen as outsiders and are able to influence the content and process of board discussion more substantially. Studies have shown that only after a 'critical mass' of about 30% women has been reached – or where the board size permits where at least three board members are female -, gender diversity can produce significant effects in terms of catalysing board activities and better corporate governance and performance. The research on the 'critical mass' suggests that there are two elements to the critical mass, first the percentage share of directors of the under-represented sex and second the absolute number of persons from the under-represented sex holding a director's post. There is a high degree of consensus among scholars that for the benefits of gender diversity to fully materialise it is preferable to reach the critical mass in both respects where the board size so permits.

(page 16, footnote omitted)

Here is why this is stupid: The research cited (I have omitted the references in the above quote, for reasons of brevity) is undoubtedly correct that having one woman in a board room full of men is unlikely to make much of a difference. But that is not the essential question of subsidiarity purposes! If the Commission is to make an argument for intervention, it needs to show that the benefit of having more women in one board room is diminished if other companies do not follow suit. If such a thing were shown, it would indicate a collective action problem that requires legislation to correct. Likewise, if the benefits of a woman quota in one Member State can be undermined by other Member States, that suggests a collective action problem at a European level that requires EU legislation to fix. But the question of how many women it takes in an individual board room to make a difference has nothing to do with any of that.

(All the more so because the Commission ignores the difference between the percentage women among board members and the percentage of companies that have more or less balanced boards. If half the companies in Germany had a perfectly balanced board while the other half were all men, the Commission would say that 25% women board members is not very good, while perhaps the better view is that 50% of companies are doing what they are supposed to, begging the question of why the other 50% do not.) 

Without further arguments, I do not even see why any government intervention is justified, much less EU intervention. None of this comes even close to explaining why the EU should commit what is perhaps the ultimate EU-evil: having politicians do in Brussels what they cannot do at home.

Resistance is Futile (2)

The story of Tonio Borg's confirmation as the next Maltese Commissioner for Health and Consumer Protection keeps getting stranger. In response to the objections in the S&D group, the Parliament has listed a series of commitments that Mr. Borg is to make in order to be confirmed. They are:

1. The delivery of the legislative proposal on tobacco products by January 2013;
2. The adoption of legislative proposals on animal cloning and novel food by mid-2013;
3. The full respect of the March 2013 deadline for the ban of animal testing for cosmetics;
4. Better enforcement of EU law on animal transport;
5. Full respect of the EU Charter on Fundamental rights, in particular of Article 21, as well as of EU anti-discrimination legislation and case-law;
6. Recognising the innate dignity of all citizens of the EU, regardless of their sexual orientations, actively working to address health inequalities and to acting against stigmatisation of people with HIV and AIDS;
7. Actively supporting EU policies with regard to women’s rights.

You don't have to be a Commission (or Council) insider in order to feel that many of these commitments would seriously infringe on the Commission's prerogatives. After all, last I checked, it is the Commission and the Commission alone that decides whether a proposal will be made, and if so what is in it. The same goes for a proposal to amend existing legislation. If the Commission thinks the deadline for the ban on animal testing for cosmetics should be extended, it would be unconscionable for it to refrain from making such a proposal just because one of the members of the College promised the Parliament that they wouldn't. Similarly, the Commission is supposed to decide on its own enforcement priorities, given that it only has so many lawyers and so many other fonctionnaires. Only the last three commitments are of a more general political/ideological nature, and Mr. Borg should have no difficulty making them.

That said, I argued in my earlier post on Mr. Borg that it is entirely legitimate for the Parliament to leverage its power over the appointment in order to win power elsewhere. I have to say, this is not quite what I imagined, but it might nonetheless be legitimate along the same lines. I think the best way to consider this is to look at the first three commitments first, and then at the fourth.

A commitment by the Commission to publish a proposal - or not to - by a certain date seems quite legitimate as part of a larger negotiating deal with the Parliament. The Commission may make a proposal, but it does not have to, and as such I see no reason why the exercise of this power could not be made part of a wider political bargain. In this case, however, I am unsure what the Parliament is looking for. After all, it is Mr. Borg who is asked to make these commitments, not the Commission as a whole, and as we have seen with the women's quota proposal recently, the relevant commissioner alone is not in charge of making proposals. If a tobacco products proposal has insufficient support in the College of Commissioners, for example because it fails the criterion of subsidiarity, there is not much Mr. Borg can do. At best he can promise the Parliament that he will do his best to get such a proposal adopted. The reverse is, of course, not true: it is difficult to see how the College can force him to draft a proposal that he does not want.

Enforcement, on the other hand, is more problematic. Much as this, too, is a matter of considerable discretion, I think any attempt by the Parliament to control it is seriously misguided. Given that enforcement is a matter of deciding what to do with scarce resources, enforcement priorities have to be decided all at once, or at least all at once for each Directorate-General. If the Parliament thinks the law on animal transports should be enforced better, it should also say which area of the law should be supervised less. In the absence of an overarching Parliamentary approach to enforcement, it should leave these kinds of decisions to the Commission, which is in fact how it is done in most Member States. While normal Parliaments have the right of initiative, they do not tend to have the power to commandeer government resources to improve enforcement of certain laws except through the budgeting process, when the trade-offs involved are made clear to everyone.

So if the Parliament wants to maintain commitment four, it should be clear that it is to be understood as a soft, political commitment only. If Mr. Borg says that yes, he really does think that animal welfare during transport is important, the Parliament should accept this. To go beyond such a hand-waving political statement would be unwise, and to the detriment of all, including Europe's animals.

Resistance is Futile

Parts of the Socialist Group in the European Parliament, as well as their civil society supporters, seem to have taken a rather unusual approach to the question of whether the Conservative Maltese Tonio Borg should be permitted to serve as the new Commissioner for Health and Consumer Affairs. In general, their objection seems to be that he's, well, Maltese and Conservative, but beyond that it is not clear what to read into this move. So I'll quickly explore the implications of both possibilities:

One possibility is that, whether they know it or not, these Socialist MEPs (not all of them) are trying to take the next step towards the democratisation of the European Commission. It has been argued, most famously by Simon Hix and since then by pretty much everyone else, that the election of  a new European Parliament should have consequences for the make-up of the Commission, and particularly for the election of its President. The idea is that an ALDE win should be translated into a greater ALDE representation in the Commission, even if most pundits wouldn't go so far as to propose true coalition politics where at least one of the big three (EPP, S&D and ALDE) would be sidelined. This is why all three major political groups have promised that they will propose a candidate for Commission President prior to the next EP election. (Although I'm not sure how they expect to bind the Council to their choice, given that it is the Council who ultimately nominate the Commission President.) While the EPP and the S&D groups have not yet discussed who they will nominate for the 2014 election, ALDE has most recently declined to nominate their logical choice - Guy Verhofstadt - at this point, although they might nominate him later.

More generally, this approach suggests that European Commissioners should be submitted to an ideological as well as a technocratic examination. Not only do they have to have the necessary skills for the job, preferably combined with an absence of skeletons in closets, but they would also have to have values that correspond to those supported in the Parliament. Taking this idea to the next step, it would no longer be self-evident that S&D would support an EPP candidate without something in the way of a quid pro quo. In the normal Commission appointments process, the quid pro quo is the support of EPP for S&D candidates, but what if there is only one candidate under consideration? Why would S&D and ALDE support Tonio Borg instead of pushing for a more centrist candidate? Why not reduce the EP hearings for a single new Commissioner to the EU equivalent of an American Supreme Court Justice nomination process? In the US, in the last few decades, no one who is not able to pretend to be a moderate has any chance of receiving the consent of the Senate. The only question is whether the Justice is a moderate nominated by a Democratic President or a moderate nominated by a Republican. The party affiliation of the White House still matters, but not as much as it used to.

Now is this approach legitimate? This is a question where, unfortunately, I have to part ways with my one-time God (i.e. Supreme Leader) Jean-Claude Piris. Both in his writing and in his lectures he has - by his standards - sharply condemned the way the European Parliament has, in recent years, leveraged its existing powers in order to blackmail the Council and the Commission into giving it more power still. (The best example I could find on short notice is this one from May, where the Parliament blocked budget approval for several EU agencies in order to force the Council to give it information it may or may not have been entitled to.) Perhaps it is because he is from France, a place where democratisation has only ever happened in the wake of violent revolution, but Dutchies like me, or Brits, or commentators from many other countries will recognise this dynamic from the history of their own parliaments. This is how parliaments have gained power since time immemorial: by leveraging the power of the purse. (Even the French tried to do it in 1789, that is how the Estates General came to be summoned in the first place, but we all know how that ended.) In this way, I would not consider it illegitimate for the Parliament to try to force more democracy on the choice of Commissioners. But then I'd rather they actually do it on purpose, and with malice & aforethought. That does not seem to be the case here. But if Swoboda, the ring-leader of this rebellion, were to get together with Schultz, Verhofstadt and Cohn-Bendit and decide together that they will reject Borg for ideological reasons, I would be all for it.

But it is not obvious that this is in fact what Swoboda and the others are doing. Judging, for example, from the headline of this opinion article on Public Service Europe, Mr. Borg's critics seem to consider their objections to concern his "suitability" for the Health and Consumer Affairs portfolio in particular. They are not worried about the ideological balance of power in the College of Commissioners, and they are not even necessarily worried about ideology in general, but rather they seem to argue that his ideology will get in the way of his job performance in concrete ways. The author of this opinion article,Monika Kosiñska from the the European Public Health Alliance, for example, lists the candidate's views on abortion, homosexuality and immigration as being particularly problematic. This is particularly curious because I'm not entirely sure how the Health and Consumer Affairs portfolio touches on these fields.

In her article, Ms. Kosiñska lists a lot of soft power things that are happening at the EU level, none of which actually materially affect what happens in the Member States regarding health care policy, and quite a few of which the EU shouldn't be involved in in the first place. Then she moves on to things that are happening that might actually matter but that have no clear connection to Mr. Borg's views on abortion or homosexuality or immigration. Instead, at that point in her article she seems to have moved the goal posts towards a general rejection of conservatism, which is great but not very helpful unless the Parliament wants to reject the idea that this seat belongs to a Maltese EPP member (see above).

Likewise, Mr. Swoboda and Mr. Cashman, the other key S&D dissident, emphasise the candidate's stance on "sexual and reproductive health rights", which again is an entirely unimportant part of the Health and Consumer Affairs portfolio, and one that should perhaps be a smaller part still. No power to make binding legislation whatsoever. Moreover, neither they nor Ms. Kosiñska offer any explanation of how Mr. Borg's views on these matters are any different than those of his predecessor, Mr. Dalli. It is difficult to see how they can object to Borg without showing concrete harm done by Mr. Dalli.

This difficulty in distinguishing between technocratic concerns and ideological concerns has cropped up in recent years in a variety of contexts all over Europe. It has resulted in the new Dutch government proposing a law that would phase out "Weigerambtenaren", who are municipal officials charged with officiating wedding ceremonies who object on religious grounds to same sex marriages and refuse to perform them. As the Council of State emphasised again in its advice on the bill recently, there is no reason not to distinguish between cases where a same sex couple would have difficulty finding an official willing to perform their wedding and a situation where there are plenty of non-objecting officials available. Phasing out Weigerambtenaren across the country unreasonably interferes with these individuals' freedom of religion and conscience. More generally, when considering the appointment of an official to a non-political post, a careful balance has to be struck between making sure that the person appointed will actually do the job in the manner required by law and making sure that unpopular religions or opinions are not unreasonably discriminated against. In the words of art. 3 of the Dutch Constitution: "All Dutch nationals shall be equally eligible for appointment to public service." And that is how it should be.

This, of course, begs the question of how technocratic or political the job of a European Commissioner really is. But that goes back to the first approach I discussed above. If the idea is that Commissioners are politicians, then say so. Then a game of political bargaining can be played over this appointment to the Commission, and democracy can prevail. But please don't pretend your ideological objections go to job performance. Such (self-)deceit does a disfavour to the European electorate and the European Parliament alike.

This Week in Luxembourg

The most interesting case this week is the competition damages case of European Union v. Otis and others. In that case, the Grand Chamber (Judge Arabadijev) held that it is not in violation of the Charter, specifically the right to a fair trial of art. 47, for the European Commission to first find a competition law infringement, imposing more than € 990 million in fines, and then to turn around and sue the perpetrators in tort, based on the fact that the EU bought elevators from the defendants. Cf. European Law Blog

The Grand Chamber (Judge Juhász) dismissed the appeals in the Éditions Odile Jacob/Lagardère merger review litigation. The most important result is that Lagardère is now officially permitted to buy most of the book publishing subsidiary of Vivendi. Part of the fun of this case is in its treatment of the “upfront buyer” who purchased Vivendi Universal Publishing pending approval by the Commission of the purchase by Lagardère.  Éditions Odile Jacob v. Commission and Commission v. Éditions Odile Jacob

An asylum seeker who should have been sent back to Poland can instead remain in Austria and have her application decided there because she has a daughter-in-law in Austria who has already been given asylum and who is dependent on her. Cf. the humanitarian clause – art. 15 – of Regulation 343/2003. K v. Bundesasylamt

The Court (Judge Tizzano) shot down the clever Hungarian government plan of forcibly retiring all judges older than 62, so as to allow the government to appoint plenty of pro-government new judges. Apparently, this constitutes unlawful discrimination under Directive 2000/78. Commission v. Hungary

To the surprise of absolutely no one, the Court (Judge Borg Barthet) found that Greece has failed to transpose parts of the first railway package. Commission v. Greece (FR) Likewise, Greece’s protection of its “strategic” companies was held to fall short of the rules on the freedom of establishment (Judge Prechal). Commission v. Greece For the latter, cf. Eutopialaw blog.

In other transport news, the Court (Judge Berger) gave some guidance on Commission Regulation 2042/2003 on the continuing airworthiness of aircraft. TEE et al. v. Ipourgos Esoterikon, Dimosias Diikisis kai Apokentrosis et al.

As they did the last few dozen times, Germany again lost a Turkish workers case (Judge Silva de Lapuerta, unusually). Gülbahce v. Hamburg

The Court (Judge Silva de Lapuerta) again rejected an appeal to the Ruiz Zambrano line of cases, this time because the applicant was seeking to live in the home Member State of his EU citizen wife and daughter. (The Court cited McCarthy and Dereci, which are both closer to the case at bar than the original Ruiz Zambrano case.) Iida v. Stadt Ulm Cf. Eutopialaw

AG Kokott explained that an environmental impact study under Directive 85/337 is not meant to assess the reduction in value of immovable property. Moreover, when a project goes ahead despite such damage, this damage does not necessarily have to be compensated. Leth v. Austria and Land Niederösterreich (NL, DE, FR)

Interesting state aid case in the General Court: The Court (Judge Vadapalas) annulled a decision by the Commission (NL, FR) approving aid given by the Belgian authorities to certain Brussels hospitals. CBI v. Commission (NL, DE, FR)

Finally, for those who can read Dutch, the Dutch College van Beroep voor het bedrijfsleven has upheld the NMa’s methodology and results for the valuation of the assets of Gas Transport Services BV, whereby the regulator arrived at a valuation of € 4,8 bn as of 2006, to be depreciated over 55 years. The plaintiffs/appellants were arguing for 0,9 bn and 20 years. Cf. Regulation 715/2009. VEMW et al. v. NMa

Last Week In Luxembourg

For some reason, it was necessary for the Grand Chamber to reaffirm the 2009  Sturgeon judgment. (Both Sturgeon and this week’s judgment are by Judge Malenovský.) Three hours delay is still the cutoff, and airlines can still get out of the obligation to pay compensation only in extraordinary circumstances. Joined Cases Nelson v. Lufthansa and R. (on the application of TUI Travel et al.) v. Civil Aviation Authority Cf. EurActiv and Recent Developments in European Consumer Law Blog

The Grand Chamber (Judge Arabadijev) also did some more Portuguese car insurance law, holding that Directives 72/166, 84/5 and 90/232 “do not preclude national provisions which, where two motor vehicles collide giving rise to personal injury to the passenger in one of the vehicles and the event is not attributable to the fault of the drivers of those vehicles, [but to the fact that the passenger wasn’t wearing his seat belt] allows the civil liability of the insured persons to be limited or excluded.” Almeida v. Carvalheira et al.

The first judgment is in of the infringement proceedings brought against half of Europe regarding the First Railway Package. Predictably, Portugal lost (Judge Borg Barthet). Commission v. Portugal Cf. here for my discussion of the AG’s opinions in these cases.

Following AG Jääskinen’s opinion in April, the Court (Judge Safjan) finally sorted out what to do with the German “Negative Feststellungsklage”, i.e. the suit that asks the Court to say that no liability in tort exists. Unlike the AG, however, the Court decides that this kind of suit does fall under art. 5(3) of Regulation 44/2001. Folien Fischer and Fofitec v. Ritrama

In the wake of the recent Dutch studiefinanciering case, the Court (Judge Prechal) follows AG Cruz Villalón and holds that a Belgian measure which gives allowances for young persons seeking their first job only to persons who have spent the last six years in Belgium should be considered in violation of the free movement of workers. Prete v. Office national de l’emploi

France did not transpose Directive 2003/96 on the taxation of electricity in time, leaving in place the possibility for municipalities or departments to set a tax higher than the minimum established by law, rather than enacting a uniform tariff for the entire country. Commission v. France (FR)

AG Jääskinen proposes some clarifications of the Authorisation Directive – Directive 2002/20 – in the context of a dispute between the Belgian mobile telecom operators and the Belgian government. I leave it as an exercise for the reader to sort out which side benefits from the interpretation he proposes. Belgacom et al. v. Belgium

AG Mengozzi does some car insurance law in Csonka et al. v. Állam (NL, DE, FR), where he proposes a reading of the law that the Hungarian government will like: the Member State does not have to stand in for an insolvent insurance company. At the same time, the AG emphasized that you can’t use a prejudicial question procedure to get the ECJ to decide whether the national law infringes EU law.

AG Cruz Villalón also takes a look at Hungarian car insurance, albeit in the context of competition law. First of all, in par. 20-48, he proposes a narrow reading of the case law on the admissibility of purely internal questions where they rely on concepts derived from EU law, as it was applied only last week by the Court in Punch Graphix (par. 27). Alternatively, the AG proposes that the contracts in question unlawfully reduce competition in the car repairs market, but not the insurance market. Allianz Hungária et al. v. Gazdasági Versenyhivatal (NL, DE, FR)

The General Court annulled the asset freezes of two companies accused of being involved in Iran’s nuclear proliferation programme for failure to state (adequate) reasons. CF Sharp Shipping v. Council and Oil Turbo Compressor Co. v. Council (NL, DE, FR)

Finally, I came across an interesting recent journal article this week about free movement of goods law by Gareth Davies. The fun isn’t in the substantive law he discusses, but in the approach he takes to distilling meaning out of a body of case law. (Cf. p. 25-27, in particular.) Other reading tips include this blog post by Deirdre Curtin about the future of Kadi-litigation and this summary of a high-level conference in Luxembourg about the future of ECJ-ECtHR collaboration. (Key quote: “speakers like Hans Nilsson from the Council of the EU do not expect the accession to enter into force until the end of the decade.”)

Subsidiarity: Right of Access to an Attorney

Virtually all Europeans imagine their right to an attorney to be more or less the way they see it in American cop shows on TV. In reality, however, the law in most European countries is not quite so generous. Even under the 2008 ECtHR ruling of Salduz v. Turkey, the right to have an attorney present during questioning by the police is not guaranteed in all circumstances, nor do European countries necessarily think that is a bad thing. More than their American counterparts, European authorities tend to balance the right to an attorney against the interest of the state in discovering what happened.

My intention here is not to discuss the Salduz case and its implications. Plenty of people have done that already. Instead, I want to look at the Commission's proposal for a Directive harmonising this area of the law, which is currently making its way through the EU legislature. (Cf. also this Dutch-language blog post about the attempt by the Netherlands to restrict the right to serious felonies only.) Given my oft-expressed concerns about subsidiarity, it is no surprise that I wonder why it is necessary to harmonise an area of the law that is already harmonised through ECtHR case law. After all, all EU Member States are parties to the European Convention on Human Rights, so what is the added value of this directive? 

The Commission's answer is brief enough that I can quote it here in full:

34. The objective of the proposal cannot be sufficiently achieved by Member States alone, since there is still significant variation in the precise method and timing of the right of access to a lawyer in criminal proceedings across the European Union. As the aim of the proposal is to promote mutual trust, only action taken by the European Union will establish consistent common minimum standards that apply throughout the whole of the European Union. The proposal will approximate Member States’ procedural rules regarding the time and manner of access to a lawyer for suspects and accused persons and for persons subject to an EAW, the aim being to enhance mutual trust. The proposal therefore complies with the subsidiarity principle.

I have to say, this is actually pretty convincing. During my weekly surveys of ECJ case law I frequently come across cases where the referring judge is trying to push against the limits of the grounds for non-execution of the warrant of art. 3 and 4 of the Framework Decision, on the grounds that they were informed of some circumstance of the procedure in the requesting state that they do not like, for example that the warrant was issued by a prosecutor instead of by a judge, that there might be a ne bis in idem issue, or that the original trial was in absentia. Another recent example of the referring court going for broke is the Romanian case of Rusa, where the applicant really did not want to be sent back to Germany.

So if we agree - as I do - that the European Arrest Warrant is justified under the principle of subsidiarity, it is plausible that the level of trust necessary to sustain that legislation cannot be achieved through Strasbourg alone. That is particularly true to the extent that the Member States of the European Union decide that they want to offer a level of protection that significantly exceeds the level required by the ECtHR. That, as it turns out, is what they are currently trying to figure out. However, while a lower level of protection would undermine the case for this Directive, it is in any event true that its enactment would add one hell of a set of teeth to the enforcement mechanism on offer under the ECHR. That alone makes it a law worth contemplating.

How to get rid of Dalli

Now that Commissioner Dalli suddenly appears to have un-resigned, the question is what to do. As far as I can see, under the Treaties there are two ways to get rid of a Commssioner. On the one hand, there is the approach that President Barroso has taken so far, which is codified in art. 17(6) TEU:

A member of the Commission shall resign if the President so requests.

Contrary to what one might think, this does not seem to be optional. "Shall" usually indicates a positive obligation in European law, meaning that the resignation of a Commissioner is only a formality once the President of the Commission has asked for it pursuant to art. 17(6) TEU. The second approach is a forced resignation under art. 247 TFEU:

If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.

This begs the question: if resignation is mandatory once requested under art. 17(6) TEU, what is the point of art. 247 TFEU? (Other than to allow the Council to bypass the President of the Commission and have a Commissioner sacked directly, which does not seem like a very likely scenario, given the usual balance of powers between the Council and the President of the Commission.)

I think the explanation for this seeming redundancy is in the history of the Treaties. On the one hand, we have art. 247 TFEU, which already appears in identical form as art. 12(2) of the Treaty of Paris, which established the European Coal and Steel Community. Clearly, this was traditionally the way to get rid of Commissioners like Mr. Dalli. On the other hand, as the number of Commissioners grew, a more Presidential system started to emerge, where in successive Treaty amendments the position of the President of the College was strengthened relative to his colleagues. Thus, as of the Treaty of Maastricht the President is selected first, and then consulted on the selection of his colleagues. The Treaty of Amsterdam introduces the proposition that "The Commission shall work under the political guidance of its President." (art. 219 EC) And finally the current rule of art. 17(6) TEU was introduced in the Treaty of Nice, as art. 217(4) EC.

In this way, the old rule has become ever less important, and there is a decent chance that it was only maintained unamended because no one thought to get rid of it. However, the current crisis does show a potential use for the provision. As it happens, Mr. Dalli seems to accept that if President Barroso formally asks for his resignation, that he is required to give it, regardless of whether the President has a good reason for asking. In this case, for example, it is highly doubtful that it can be proven that Mr. Dalli is "guilty of serious misconduct", although the Commission might be able to persuade the Court that Mr. Dalli "no longer fulfils the conditions required for the performance of his duties" on the grounds that his reputation is too tarnished for him to function. But what if Mr. Dalli refused to go? Of course, the President could bar him from the building, but it would be nice if there were a more formal way of resolving the dispute. In this cases where it is able, the Commission should want to have the opportunity of proving in open court that its black sheep really should go. Deleting art. 247 TFEU would remove the possibility of removing, once and for all, all doubt about whether the President of the Commission was right to ask a Commissioner to go. For this reason, I would certainly suggest that it should be maintained, although possibly in amended form.

In the case of Mr. Dalli, however, his letter to President Barroso suggests that all of this can be solved by having President Barroso send him a letter formally invoking art. 17(6) TEU. I am not sure why Mr. Dalli thinks that the President has to ask for his resignation in writing, or why he thinks he is entitled to "defend himself" or "to consult with [his] lawyer", but he seems to be prepared to resign if and when he is formally asked. So let's just ask him again and get it over with.

UPDATE OCT 24: Apparently President Barroso is also wondering what Mr. Dalli is talking about. In a letter published today, he writes: "Under the Treaty, no written form is required for a declaration of resignation, and it is irrevocable. As a consequence, no further question arises about the effectiveness of your resignation."

This Week in Luxembourg

This week the Grand Chamber (Judge Tizzano) ruled in Hungary v. Slovakia, siding with the latter. Slovakia was entitled to forbid the President of Hungary from entering its territory. This seems like one of those highly contested judgments, because there are a few steps of the argument missing. The Court cites Kadi for the proposition that international law is part of the European legal order (!), and explains that under international law Slovakia is allowed to keep him out, but skips over the question of why that rule is not superseded by art. 21 TFEU. Also odd: The Commission intervened in support of Slovakia. Cf. Verfassungsblog and European Law Blog

The Grand Chamber (via the brand new Vice-President of the Court Judge Lenaerts) also held that the Austrian Datenschutzkommission is insufficiently independent from the Federal Chancellor in violation of Article 28(1) of Directive 95/46.

In the base closures case of United States v. Nolan, the Court (Judge Juhász) deviated from AG Mengozzi’s opinion and declared the prejudicial question inadmissible. The Directive in question, Directive 98/59, explicitly excludes from its scope “workers employed by public administrative bodies” so there is no issue of EU law here. I suppose that that is a substantive answer disguised as a procedural one. Note that there are some interesting considerations at the end regarding when the Court might nonetheless be prepared to answer a question like this one. (par. 46-56) An example of that happening is in the Belgian case of Punch Graphix v. Belgium, where Belgian law referred to EU law even where the latter didn’t technically govern.

In the UK, it turns out, it rains a lot, which gives the UK problems in a few places to comply perfectly with art. 3, 4, and 10 of Directive 91/271. So the question is whether that Directive leaves room for the occasional water overflow. The Court (Judge Borg Barthet) now held that the extent of overflow at the two facilities at issue in Commission v. UK can hardly be considered to be limited to “unusual” situations, meaning that the UK has failed to fulfill its obligations.

In tendering law, the Court (Judge Šváby) disappointed a Hungarian and a German company who were hoping to get around the requirement in the tendering document of three consecutive years without a loss by referring to the differences in accounting rules across Member State, or to their relationship with their respective parents. As long as the criterion is reasonably justified in light of the requirements of the project, the companies are out of luck. Cf. art. 44 and 47 of Directive 2004/18. Édukövízig and Hochtief v. Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

The attempt by the Dutch authorities to put “formally limited residence permits” – in this case limited to the exercise of the duties of a spiritual advisor – under the exception for au pairs and seasonal workers of art. 3(2)(e) of Directive 2003/109 will almost certainly not fly. The Court (Judge Silva de Lapuerta) left room for the possibility that the limitation might prevent, as a practical matter, long-term residence, but that does not seem to be the case here. Staatssecretaris van Justitie v. Singh

The Court (Judge Lenaerts) followed AG Cruz Villalón and defended the protection of databases under art. 7 of Directive 96/9. Football Dataco et al. v. Sportradar

You still can’t give away fake prizes as a marketing tool. Purely Creative et al. v. Office of Fair Trading Cf. Recent Developments in European Consumer Law Blog and, more critically, the European Law Blog

CE Markings may not be made mandatory, because that would be a Measure Having Equivalent Effect. Elenca v. Ministero dell’Interno Cf. The IPKat

The Czech Republic unlawfully allowed butter spread to be sold as butter. Commission v. Czech Republic

AG Jääskinen’s opinion in Ettwein v. Finanzamt Konstanz suggests that, yet again, the Swiss – or in this case Swiss residents – should bear the negative consequences of the fact that Switzerland is not in the EU. In this case the dispute concerns the direct taxation of self-employed frontier workers.

In the EAW case of Ministerul Public - Parchetul de pe lângă Curtea de Apel Constanţa v. Radu, the robbery suspect in question is throwing a lot of serious sounding legal arguments against the wall to see if they stick. AG Sharpston gives them exactly as much attention as they deserve, which is to say: not much. The most interesting answer is that a Member State may not refuse to execute a European Arrest Warrant on the grounds that the requesting state has not, or not correctly, transposed the EAW Framework Decision.

AG Kokott dealt with the question of what it means for an Aarhus-Convention procedure to be “prohibitively expensive” (cf. art. 3(7) of Directive 2005/35) and, more importantly at which stages of the procedure this should be verified and by whom how. R. (on the application of Edwards) v. Environment Agency and Others Cf. UK Human Rights Blog part 1 and part 2.

La Poste

This has to be some kind of conspiracy: No sooner had I advocated for the greater use of EPICs than the CJEU declared them unlawful. On September 20, the 6th Chamber of the General Court, with Judge Wahl acting as rapporteur, upheld the Commission's State Aid Decision again France over La Poste, the French Postal Services.

So where did it go wrong?

Well, maybe the problem is already here:

(155) The Commission concludes that:
— unlike the creditors of undertakings governed by commercial law, creditors of La Poste (which is not subject to the ordinary law rules governing the compulsory administration and winding up of firms in difficulty) are not in danger of seeing their claim cancelled in whole or in part following court liqui­dation proceedings;
— the fact that La Poste has legal personality is no bar to a state guarantee to La Poste; and
— in the absence of any express limitation on the State’s liability in respect of La Poste, La Poste’s creditors may legitimately act on the principle that the State will bear the debts of La Poste, even though La Poste possesses legal personality

Then again, it is hard to argue against these findings of fact.

The better view is probably that the problem is here:

(308) Lastly, the unlimited state guarantee in favour of La Poste cannot be considered to be compatible on the basis of Article 106(2) TFEU. This exemption provides that undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly are to be subject to the rules contained in the Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union.

(309) French law has imposed public service obligations on La Poste. On that basis, the postal operator may receive financial compensation or enjoy certain prerogatives derogating from certain generally applicable rules of law. However, such financial measures or prerogatives must be limited to what is necessary to offset the addi­tional costs incurred by La Poste by virtue of its public service obligations.

(310) The Community framework for State aid in the form of public service compensation sets out the conditions under which the Commission considers such compen­sation to be compatible under Article 106(2) TFEU. In particular, the compensation paid cannot exceed the cost of providing the public service, taking into account the relevant receipts and a reasonable profit for discharging the obligations.

(311) In the present case, such an analysis would presuppose a market valuation of the unlimited state guarantee in favour of La Poste in order to verify that its value does not exceed the net cost of providing the universal postal service. However, this analysis is impossible to carry out, which rules out application of the exemption provided for in Article 106(2) TFEU.

Let me see if I got this: The Commission spends a great deal of time talking about the interest rate advantage La Poste supposedly obtains because of this state guarantee, including a detailed discussion of the various ratings agencies' methodologies (par. 263 - 274, in particular), but they think it is too much trouble to estimate the Euro value of this advantage in annual interest expense terms? If so, how can we know whether this advantage is even big enough not to be de minimis? Much as I agree that there is an advantage, I am far from convinced that the transformation of La Poste from an EPIC to a private-law SA has made a difference of more than a few basis points. At the very least, such a difference seems like the kind of thing the Commission would have to prove. And I don't see why this calculation should be so "impossible" to carry out, at least not once the Commission, in its infinite wisdom, has estimated the number of basis points that La Poste would pay extra if it were a private law company. (Not a private company, mind. Either way it will be state-owned.)

The non-banking part of La Poste had a total debt at the end of 2011 of € 4,5 bn, so each basis point of additional interest expense corresponds to an additional interest expenditure of € 450.000. If the Commission cannot say how many basis points, approximately, we are talking about, they have no business bringing this case. And if they can put a number on it, it should be fairly easy to compare this number to the value of the Public Service Obligation imposed on the company. (As it happens, the net financing costs of the company are up 4,3%, from € 166 million in 2010 to € 173 million in 2011, while total debt is down from € 4,8 bn to € 4,5 bn, implying an increase in average borrowing costs of 39 bp. But that could be for a variety of reasons.)

The French government does not seem to have taken this particular approach, either in its communications with the Commission or in its arguments before the Court. Instead, it argued mostly about the existence of a guarantee and the existence of an advantage in general, without pressing particulars. The General Court, predictably, replied that the Commission had adduced sufficient evidence to show an advantage (par. 121-123).

Then there is another question that the French do not seem to have asked. Why did the Commission find it necessary to order France to turn La Poste into a Société Anonyme instead of permitting France to resolve the problem through less drastic means? Why not let France enact an explicit denial of guarantee? The answer is probably that France was already planning to convert La Poste into an SA anyway (cf. par. 318-323 of the Commission's Decision).

For the future, however, this is a possibility worth considering. After all, I am told that it is highly likely that this precedent will be applied to SNCF, the French railways. If so, the French might consider asking the Commission to do their job more carefully.