22 oct. 2011

ECJ bans patents on transplantation of embryo cells, Brüstle, C-34/10

Professor Olivier Brüstle got the German patent related to neural precursor cells and the processes for their production from embryonic stem cells for therapeutic purposes, but was attacked by Greenpeace and finally lost proceedings before the Grand Chamber of the ECJ.

Professor Brüstle tried to argue that, in fact, he does not work with “embryo”, but the ECJ replied that “embryo” is an autonomous concept of the EU law and gave it the widest sense possible – thus, covering any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis (§§ 26, 38).

Professor Brüstle then argued that he does not use embryos for “industrial or commercial purposes” but for “purposes of scientific research” only. The ECJ replied that the word “patent” implies its industrial or commercial application (§§ 41-42). Therefore, according to the Grand Chamber, “industrial or commercial purposes” cover “scientific” ones (§ 46).

Thus, the transplantation of embryo cells became unpatentable.

21 oct. 2011

ECtHR: contradictions between judgments of 2 national supreme courts must be tolerated, Şahin v Turkey, 13279/05

On 16/05/2011, a Turkish military plane crashed on return from an anti-terrorist operation in Iraq (§ 10). Families of 14 victims addressed the Ankara Administrative Court/Turkish Administrative Court and got pensions due to the death of relatives during an anti-terrorist operation (§ 64). However the Şahin family appeared before the 4th Chamber of the Ankara Administrative Court that found that the case shall be forwarded to the Turkish Supreme Military Administrative Court. The latter concluded that this was not a death during an anti-terrorist operation (§ 65). Yesterday, on 20/10/2011, the Grand Chamber of the ECtHR found on appeal that this case law contradiction must be tolerated, that it does not violate the right to fair trial.

The Şahin family tried to argue that this contradiction violates the principle of the consistency of the law, and the principle of legal certainty (§§ 40-41). The 10 v 7 ECtHR majority replied that this conflict of the Turkish Administrative Court and the Military Administrative Court must be tolerated, that it does not undermine legal certainty, that the principle of good administration of justice cannot impose a strict requirement of case law consistency, that one must respect the autonomy and independence of the 2 Turkish Courts, that it is not the ECtHR role to intervene simply due to a conflict of judgments (§§ 83-84, 88).

The minority of 7 judges held that the conflict of judgments gives an impression of “arbitrariness”, that this is contrary to the legal certainty, that consistency is necessary to preserve public confidence in the administration of justice (§§ 3-4, 6 of the dissenting opinion).

I like this kind of cases because it shows the extent of unknowability we live in, and supports the general Critical Legal Studies perspective on indeterminacy of law in slightly more complex cases.

16 oct. 2011

ECJ: contractual clause prohibiting Internet trade is illegal, Pierre Fabre, C-439/09

Pierre Fabre Dermo-Cosmétique SAS manufactures and markets cosmetics and personal care products under brands Avène, Galénic, Ducray and Klorane. Their general contractual clause imposed an obligation on distributors was that the products have to be sold in a “physical space” in the presence of a person with a diploma in pharmacy, which de facto excluded internet trade (§§ 13-14).

Pierre Fabre tried to justify the clause with an intention to provide a personalized advice in order to ensure “cosmetovigilance” (§§ 17, 25), avoiding the risks of counterfeiting and free-riding between authorized pharmacies (§ 23), need to maintain the prestigious image of the products (§ 45). The French Competition Authority decided that the real aim of the clause is to prevent selling the goods to non-authorised distributors, to reduce considerably the ability of an authorized distributor to sell the contractual products to consumers outside its contractual territory, and to restrict competition (§§ 19, 38). Pierre Fabre got a fine of € 17 000.

The ECJ adjudicated that the reasons given by Pierre Fabre did not have a legitimate aim for restricting competition (§§ 44, 46).

15 oct. 2011

ECtHR supports squatters, Rhino v Switzerland, 48848/07

About 100 squatters (mostly art students) occupied 3 buildings in the center of Geneva in 1988, and established the squat association “Rhino” (acronym for “Retour des habitants dans les immeubles non occupés” or “Return of inhabitants to non occupied buildings” in English). On 10/05/2007 the Swiss Federal Tribunal prohibited the association due its “illegal aims”, i.e. “subtract the buildings that they occupy from the market and speculation” (§ 45), and on 23/07/2007 police expelled the squatters (§ 28). However on 11/10/2011 the European Court of Human Rights adjudicated that the liquidation of the squatters association violated the freedom of association (Article 11 of the Convention).

The Swiss Government argued that the liquidation of the squatters association was necessary, since they had illegal aims and were implementing those aims with illegal actions (occupying buildings). It was necessary to forbid the association in order to re-establish the rights of the owners of the buildings. The ECtHR replied that there is no link between the protection of property rights and the liquidation of the association (§ 63).

The Court dismissed the argument that the dissolution was necessary in order to preserve public order (§ 64). Chairwoman of the squat association M. Kerchenbaum, secretary M. Pier and treasurer O. Connolly were awarded € 65 651 for pecuniary damage and € 21 949 to cover the lawyers.

7 oct. 2011

Wikileaks proves that MEP Uspaskich is persecuted for political reasons

The European Parliament never saw such a striking case of political persecution as that of Viktor Uspaskich, Member of the EP, Chairman of the Lithuanian Labour Party. His political party was accused of non-payment of certain taxes, and last year the European Parliament waived his immunity. However the question is now re-opened due to the disclosure of secret notes of the US Embassy in Vilnius by Wikileaks:
  1. It is stated in the 1st secret document that the State Secretary of the Lithuanian Government told to USA diplomats that it was the Government who “engineered the departure” (or expel) of Mr Uspaskich from Lithuania. It also follows that he also confessed that the real reason of the attack by the State was quite different from the formal one: the suspicion of Ministers that he might be related to Russian secret services. However there is no even a single proof of such a relationship. Therefore, he is formally accused of something else. As a Lithuanian, I would add that we, Lithuanians, have a general cultural-historic tradition to accuse Russians of all possible problems.
  2. The 2nd secret document discloses that the Defense Minister of Lithuania told to the US Ambassador that the aim of the Governing Political Party was to remove the opposition leader Uspaskich from the post of head of the Labour Party and to put there someone else. By the way, the 2nd and 3rd Chairmen of the Party signed the final fiscal declarations for 2004 and 2005. Uspaskich (1st chronological Chairman) did not sign them. However nor the 2nd, neither the 3rd leader of the Party are even suspected of anything. Doesn’t it go in line with this secret document?
    The scope and danger of this political persecution is much wider than any of the persecutions in cases Blumenfeld, 1-123/84, Amadei, A2-0034/86, Gaibisso, A2-0101/86, Valenzi, A2-0220/86 and A2-0221/86, Herklotz, 1-321/81, Marciani, A5-0422/03, or Brok, A7-0047/2011. The Committee of Legal Affaires of the European Parliament will consider this issue on Monday.

    6 oct. 2011

    ECHR: Standard of “increased prudence” in a retrospective application of criminal law, Soros v France, 50425/06

    Today George Soros lost his case in Strasbourg. In 1998 his investment fund Quantum Fund acquired 160 000 shares of the French bank Société Générale, and sold them several days later. This looked as a participation in a takeover attempt. The operation brought the profit of $ 2.28 million ($ 1.1 million at the French market, §§ 10-11). However in 2007 the Paris Appellate Court convicted Soros of buying shares based on insider information (Mr. P), and imposed a fine of € 940 507.22 (§ 30).

    George Soros argued before the European Court of Human Rights that the French judgment had violated Article 7 of the Convention (nulla poena sine lege). The classic understanding of “insider trading” was that it is a use of “privileged information” by a person employed by the respective company or otherwise contractually related (§ 54). Does this conception cover Mr. Soros? The report of the French Commission of Stock Exchange Operations stated that it had been impossible to appraise whether the French law had forbade this kind of operations at the respective time (§ 14). However later the French law was amended in a manner making that operation clearly illegal.

    The ECHR majority (4 versus 3) ruled on introduction of additional tests.
    1. The 4 judges stated that he had “to doubt” about that operation, since previously the French first instance tribunals had ruled that an insider employed by a company could not use privileged information for such a personal benefit (§§ 56-58). Note: this question never went to appeal or cassation stage.
    2. They qualified George Soros as “institutional investor”, and since he was this kind of person, he had to bring a “proof of increased prudence” (§ 59).
    The minority opinion of 3 judges insists that the criminal law interpretation must be strict. The very fact that after the operation the French Government had to amend the written law shows that it was not precise at the respective time. The minority underlines the difference between “unavoidable imprecision” and “avoidable imprecision” of criminal law, and proposes to use this as a judiciary test.

    3 oct. 2011

    Competition law policy of the ECHR

    ECHR adjudicated that the competition law must be assimilated with the criminal law for the purposes of the European Convention of Human Rights in case A. Menarini Diagnostics SRL v Italy, 43509/08, § 44. This Florence company was subjected to a fine of € 6 million by the Italian competition authorities for a participation in a cartel fixing prices and dividing the market of tests for diagnosis of diabetes.

    A. Menarini Diagnostics insisted on violation of the right to court, i.e. the right to a full review of the competition authority decision: as the Administrative Tribunal of Latium had recognized, the judicial control of competition cases is “weak”, “it is prohibited to the judge to exercise an in-depth control”, the judge cannot substitute its appraisal to that of the competition authority, the judge can only apply the legal norms identified by the competition authority, cannot modify the elements of the investigation and the very decision. The judicial control is limited to the verification of legality, of the logic and coherence of the decision (§ 52).

    Nonetheless, the ECHR considers that the Italian Courts have a full jurisdiction in competition cases, since they can examine the elements of proof, verify whether the administration used the powers in an appropriate manner (§ 63), verify the reasonableness and proportionality of the choices within a decision, verify the technical things (§ 64), and change the sanction (§ 65).

    2 oct. 2011

    ECHR: company tax litigation is a criminal and property case

    Moldovan company Agurdino SRL producing chemical products was ordered to pay Value-Added Tax of € 126 000, and a fine of € 101 000. The Moldovan Supreme Court of Justice found in favour of the company, since it was operating in the Expo-Business- Chişinău Free Economic Zone, and therefore hadn’t been obliged to pay VAT (§§ 6-7). However then the Moldovan Parliament adopted an Act on Interpretation of the Act on the Free Economic Zone (§ 8). On the basis of this Act, the Supreme Court of Justice re-opened the case and ordered the Agurdino SRL to pay the money (§ 11).

    Since the fine of € 101 000 has the purpose to deter re-offending rather than merely imposing a pecuniary compensation, the tax litigation must be qualified as “criminal” (§ 23). The money that could be kept after the first Supreme Court of Justice judgment is covered with the category of “possession” (§ 40).

    The ECHR qualified re-opening the file after issuing a legislative interpretation as “appeal in disguise” violating the principle of legal certainty and property rights.

    1 oct. 2011

    ECJ: in the absence of “complementary elements”, controlling 98 % of shares does not presume liability of the mother company, Elf Aquitaine, C-521/09 P

    The ECJ annulled the decision of the European Commission ordering mother company Elf Aquitaine SA to pay the fine of € 45 million jointly with its daughter company Arkema SA for a participation in cartel AMCA at the monochloroacetic acid market. The EU General Court held the mother company liable due to the fact that it controls 98 % of the daughter’s shares (§ 158). The ECJ set aside this judgment and dismissed the conclusions of its own Attorney General.

    Elf Aquitaine argued that she is a “pure holding” without operational functions, the daughter company never got any instructions from the mother company, the daughter company did not inform the mother company, the daughter company was financially autonomous and could act without any authorization, and the daughter company was perceived as autonomous by the third parties (§ 160).

    The ECJ adjudicated that the right to motivation required the European Commission to bring “complementary elements” showing an interference of the mother company into the commercial behavior of the daughter company.

    26 sept. 2011

    EU General Court: USSR coat of arms may not be registered as a trademark, Couture Tech Ltd., T-232/10

    UK company Couture Tech Ltd. tried to register Soviet coat of arms as a trademark. The EU General Court refused because this symbol is prohibited in Hungary, Latvia and Czech Republic, and therefore is contrary to public policy and morality (§ 60).

    Couture Tech argued that, unlike the swastika, the political connotation of the USSR coat of arms has been diffused and transformed into a provocative one, connected with the concept of the avant-garde, so that the trademark applied for had acquired “a new distinctiveness” (§ 46).

    The EU General Court replied that it is still perceived as a political symbol (§ 64).

    25 sept. 2011

    “Incontrovertible and direct proof” standard prevents oil company YUKOS from getting the desired victory, YUKOS, 14902/04

    Russian oil company YUKOS led by businessman and politician Mikhail Khodorkovsky bankrupted in 2007 due to the fiscal debt of € 16 billion for 2000-2003. The Parliamentary Assembly of the Council of Europe fully supported YUKOS and declared this persecution political. However on 20/09/2011 YUKOS failed to prove the same before the European Court of Human Rights.

    YUKOS argued that the circumstances of the tax assessment and enforcement, the prosecution of Mr Khodorkovsky and other owners and officials of the company, as well as the statements of the highest State officials show the intention of the Russian Government to destroy the company and to take control of its assets (Article 18 of the Convention, § 661).

    The ECHR recognized a violation in the speed with which the Russian courts had conducted the tax assessment for 2000, and in defining the penalties. However the position of YUKOS concerning Article 18 was destroyed in 2 steps:
    1. Article 18 (principle prohibiting application of restrictive measures for purposes other than the public ones) is applicable only where the restrictions are permitted under the Convention. In this manner the Court cut off the violations where the restrictions had not been permitted.
    2. The Court applied the “incontrovertible and direct proof” standard. The statement of the highest State officials do not meet this standard – especially taken in their respective context – for the purpose of proving that the aim of Russian authorities was to destroy the company for political reasons (§ 665).
    This result was foreseeable after the judgment in case Khodorkovsky. The same YUKOS arguments could have more chances under the classic Article 6(1) on fair and impartial trial.

    24 sept. 2011

    Transfer of responsibility from mother to daughter company, Koninklijke Grolsch, T-234/07

    The EU General Court annulled the anti-competitive agreement fine of € 31 658 000 imposed on Koninklijke Grolsch NV, since it was not directly involved in the agreement with other major Dutch beer producers Heineken, InBev, and Bavaria. It was its filial Grolsche Bierbrouwerij Nederland.

    Contrary to the reply of Koninklijke Grolsch to the European Commission’s communication (§ 45), individuals P.P.S., R.S., H.O.B., P.M., K.H., L.S. were not employed by Koninklijke Grolsch, but by Grolsche Bierbrouwerij Nederland (§ 47). Thus, the judges say that they did not act on behalf of Koninklijke Grolsch.

    According to the EU General Court, the notes of Mr. J.T., President of Administrative Council of Koninklijke Grolsch, on the invitation to a meeting with coordination of prices agenda dated 08/01/1999, and his 2 telephone conversations with directors of Heineken around 05/07/1999, do not prove the participation of Koninklijke Grolsch in the cartel agreement (§§ 61, 63). Previously Mr. J.T. had participated in the agreement only as a Director General of Grolsche Bierbrouwerij Nederland.

    Documents of InBev company mention the participation of the “group Grolsch” in the cartel but do not indicate Koninklijke Grolsch as such (§ 56).

    At the level of legal strategy, this case shows the way for transferring liability to a filial.

    22 sept. 2011

    ECHR: possession right covers any kind of money

    The judgment 25575/08 provides a new interesting light on all cases involving money litigation. Moldovan individual enterprise Dragostea Copiilor-Petrovschi-Nagornii owned a secondary school in Chişinău. In 2001 the Rascani District Court ordered the enterprise to pay $ 78 400 to Mr M. (§ 5). This Order was executable for 3 years but Mr M. made a formal enforcement request only some 5 years later. Therefore, on 18/07/2007 Chişinău Court of Appeal dismissed M’s action due to the missed deadline (§ 8). From this point, the ECHR starts to consider $ 78 400 as “possession” of the individual enterprise (§ 40).

    However on 13/07/2007 the Department for the Execution of Judgments wrote him a letter recognizing that his enforcement warrant had been registered within the 3 year deadline. The Moldovan Supreme Court of Justice allowed Mr M.’s appeal, since this letter could have been obtained later than 18/07/2007 (§ 13). Nonetheless, the ECHR replied that such a position does not preserve a “fair balance”, and is contrary to Article 1 of Protocol no. 1 to the Convention.

    This case leads us to re-think lots of other litigations involving money.

    11 sept. 2011

    ECHR: the son of French President de Gaule could not insult Harki, since they are not defined, Boumaraf, 32820/08

    Mr. Philippe de Gaulle, while making a comment on his book about his father Charles de Gaulle, implied that 100 000 Harki were traitors – at least as Mr. Amar Boumaraf understood this. The Harki are usually understood as Muslim Algerians who served as auxiliaries in the French Army during the Algerian War from 1954 to 1962.

    Initially the question was whether the Harki are a “sufficiently limited group”. There are three judgments (15/10/1985, 06/12/1994, 12/09/2000) of the French Court of Cassation recognizing the existence of this group. Before the ECHR, the question was transformed into whether these three judgments are a “well-established jurisprudence”. The ECHR replied that despite a clear definition of the Harki in the judgment dated 12/09/2000, it “alone” cannot create a “well-established jurisprudence”.

    10 sept. 2011

    ECJ: European immunity of an MEP does not cover defamation, Patriciello, C-163/10

    A Member of the European Parliament (MEP) has two kinds of immunity: the one guaranteed by the EU law in cases related to her opinions, and in other cases it is provided or not by national law. Italian MEP Aldo Patriciello has publicly declared that a police officer falsified the time concerned when booking several drivers whose vehicles were parked in contravention of road traffic laws. Thus, he made a “false accusation of a public official with aggravating circumstances” according to the prosecution (§ 11).

    On 05/05/2009 the European Parliament decided to defend the immunity of Mr. Patriciello in arguing that this declaration is a political opinion expressing the right of the citizens to have an easy access to a hospital, which had an important impact on the daily life of his constituents. The MEP did not act for his own interest, and did not intend to insult the policewoman (§ 12).

    However according to the ECJ this kind of opinion accusing the police officer did not have a “direct and obvious” connection with “parliamentary duties” (§§ 35-36). It must be underlined that this interpretation is applicable to the immunity directly provided by the EU law, but not to that existing under national law.

    9 sept. 2011

    Extracting fraud investigation documents from the OLAF, Tillack, 943/2007/PB

    Fraud is an old problem of the EU. After the memorandum of whistleblower Paul van Buitenen dated 07/03/2002, and inaction of the OLAF (Office of Anti-Fraud Fight), journalist Hans-Martin Tillack published 2 articles on the subject in Stern. The OLAF decided to punish the journalist. He was accused of handing over € 8000 for certain investigation documents to an OLAF official. The OLAF requested the German prosecution to open an investigation, but Germans closed it (§ 3).

    The complainant in case 943/2007/PB requested the OLAF to disclose the name of the OLAF official who signed the letter to the German prosecution, as well as the letter itself, to disclose the instructions to the relevant OLAF staff who negotiated starting the “swift action” against journalist Tillack with the Hamburg prosecution, as well as to disclose other documents on possible fraud within the European Commission.

    The complainant filed the same request twice but the OLAF ignored it. Only after filing a complaint to the European Ombudsman the OLAF disclosed the name of its official who initiated the persecution of the journalist (§ 40), as well as provided a partial access to the documents.

    The Ombudsman explained that the institution must give valid reasons enabling the applicant to decide whether the non-disclosure is grounded, and not limit itself with a simple statement that “it carried out a concrete and specific examination” (§ 58).

    3 sept. 2011

    "The Economist" establishes hegemony over other languages

    Spanish trademark "El Economista" lost appellate proceedings to the UK trademark "The Economist" before the OHIM on 05/08/2011.

    The Board of Appeal concluded that the trademarks are "visually similar at least to an average degree", since both contain the word "ECONOMIST", "THE" and "EL" have a common letter "E", and the Spanish letter "A" is at the end (marginality)(§ 28). Thus, the Board did not give any meaning to the colors (orange v black style), and to the fact that colors distinguish "ECO" from "NOMISTA" in the Spanish version.

    According to the Board, the letters "ECONOMIST" are pronounced in the same manner, and it means that the aural similarity is "above average" (§ 29). Thus, the fact that in English we make accent on "CO", and in Spanish on "MI", did not had a value.

    According to the Board of Appeal, both trademarks are conceptually "similar" (§ 30), and the fact that these are different languages is not a decisive factor.

    In certain cases this decision will delete linguistic borders among Germanic, Romanic, and possibly also Slavic and Baltic languages.

    29 août 2011

    EFTA Court orders opening a formal State aid investigation procedure against the will of the European Commission, Konkurrenten, E-14/10

    I like this judgment of 22/08/2011, since it shows how a competitor may successfully attack a decision of the EFTA Surveillance Authority or the European Commission (both had the same view here) not to open the formal investigation procedure.

    From 1997 to 2004 bus enterprise SA Oslo Sporveier owned by the Oslo City got an aid of NOK 1.124 billion (€ 144.4 million, §§ 17-18). Competitor bus company Konkurrenten.no SA lodged a complaint, and in 4 years received a Surveillance Authority decision not to open the procedure. The EFTA Court considered that it was not clear whether this aid had not been excessive for the purpose of compensating the operation of non-profitable scheduled bus services, and whether the aid had been kept separate from any other commercial activities carried out by Oslo Sporveier, such as operating tour buses (§ 77).

    The Surveillance Authority supported by the European Commission tried to convince the Court that it was an existing aid, and therefore compatible with the EEA law. They argued that the difficulty in this kind of calculation was ignorable, since in general the aid had been "existing".

    28 août 2011

    Benelux Court of Justice - the most minimal space for the loosing party's position in its judgment

    For a postmodern lawyer, the position of the loosing party is one of the most interesting things. Among all the Courts that are reviewed in this blog, the Benelux Court of Justice has with no doubt the most minimal space in its judgments for the parties to a litigation. For instance, in judgment Salvatore Sileci, A 2010/4, it just mentions that Mr Sileci filed 3 procedural documents. If you are clever enough you can try to deduce the positions of the parties from the preliminary questions of the Belgian Court of Cassation.

    For contrast, the WTO Panel, the Permanent Court of Arbitration, the ILO and the European Ombudsman provide maximum space, and even describe the content of each procedural document. Apparently, the EU OHIM starts publishing the very documents on its website, and thus making a record on representing the ideas of the parties.

    The ECJ, the ECHR, and the UN HRC are, in turn, situated between the Benelux Court of Justice and the adjudicators providing the maximum space.

    27 août 2011

    Permanent Court of Arbitration downgrades international organisations in contractual relations, Polis Fondi, 2010-8

    Polis fondi immobiliari di Banche popolare SGR.p.A. won an arbitration case against UN agency International Fund for Agricultural Development. The UN agency was refusing to pay the rent of € 265 734.47 for its Roma headquarters, since the Italian Government approved for reimburse only 80% of this sum. Therefore, according to the UN agency, the rent amount was modified under the Headquarters Agreement concluded between the UN agency and the Government - especially from the perspective of good faith principles. The UN agency argued that the Polis fondi had to be aware of the latter Agreement.

    However the Permanent Court of Arbitration found that this would be "an exceptionally onerous burden on private parties" requiring "an unreasonable level of familiarity regarding the intricacies of international organizations as subject of private law".

    22 août 2011

    European Commission narrows the application of the Köbler procedure with the "manifest disregard" standard

    On 05/08/2011 the Commission took a decision in case SG/SDS/2009/A/8335 and provided a further interpretation of the Köbler procedure restricting its application.

    In case of a refusal of a national court of last instance to make a preliminary reference to the ECJ, the Commission considers Article 267(3) TFEU as violated "only when there is a recurring problem in a Member State that prevents a case from being referred to the EU Court of Justice, manifest disregard or a deliberate attitude by a national court." Such a narrow understanding was already presented in its reply to written question no. 608/78 (OJEC C28, 31.1.1979, p. 9).

    The problem of this view is that it always remains an open question what is a "manifest disregard".

    21 août 2011

    EU General Court: President Gbagbo of Côte d'Ivoire has missed the deadline, Gbagbo, T-348/11

    From 2000 to 11/04/2011 Mr Laurent Gbagbo, PhD in history (Paris Diderot), was the President of Côte d'Ivoire. After the elections held on 28/11/2010, the Electoral Commission declared that Mr Alassane Ouattara won with 54,1%, but the Côte d'Ivoire Constitutional Council found fraud and annulled results in 9 regions. In this manner President Gbagbo arrived at 51%. However the EU took the decision to recognise Mr Ouattara as a lawful President. Those events led to a civil war, and on 11/04/2011 the supporters of Ouattara arrested President Gbagbo.

    On 06/04/2011 the EU Council declared the Government of President Gbagbo illegitimate and introduced sanctions (including personal ones). On the next day, the respective decision was published in the EU Official Journal. On 07/07/2011 Dr. Gbagbo filed an application for annulment of those measures. The EU General Court replied that he had missed the deadline that was on 01/07/2011, as calculated from the day of publication on 07/04/2011. The argument that no one told Gbagbo about those measures while he was occupied with the civil was in Côte d'Ivoire, didn’t work.

    The day of publication in the EU Official Journal becomes thus an absolute start of the deadline calculation.

    20 août 2011

    “Humanitarian grounds” and cannabis in EU law, 2062/2010/(ANK)JF

    Mr M was prescribed to take palliative (medicine containing cannabis) in the Netherlands. He wants to visit his family in Ireland, but the use of the palliative is considered as a criminal offence there. Ireland is not a part of the respective Schengen acquis that could help Mr M.

    The European Ombudsman declares to be “deeply touched”, and addresses the Irish Human Rights Commission and the Irish Ombudsman in saying that Mr M should be authorized to visit Ireland with his palliative on “humanitarian grounds”.

    19 août 2011

    "Manifestly inadmissible" policy of the African Court on Human and Peoples' Rights, Amare v Mozambique & Mozambique Airlines, 005/2011

    Two Ethiopians travelled to Maputo (Mozambique), but the Mozambique Airlines flight landed in Pemba, the officers allegedly stole USD 1000 from them, required bribes, and then sent to Dar-es-Salaam. The Tanzanian authorities re-sent them back to Mozambique. After the 26 days adventure they were repatriated to Ethiopia. The 2 men ask the African Court on Human and Peoples' Rights to order Mozambique to pay them back USD 1000. The latter Government did not make a declaration entitling individuals to institute cases directly.

    The application is "manifestly inadmissible". However what does the Court do? On its own initiative, it forwards the case to the African Commission on Human and Peoples' Rights. This is something that you will hardly find in Europe.

    8 août 2011

    What is “rationality, proportionality and equality” in determining the price of land? Salvador Chiriboga v Ecuador, 21/03/2011

    The Ecuadorian city of Quito expropriated the forest representing 55 % of the urban green area from Mrs Maria Salvador Chiriboga (§ 79), which led to the dispute on the price to be paid to the owner before the Inter-American Court of Human Rights.

    Mrs Salvador Chiriboga estimated the value at US $ 84 326 787.50, and the Ecuadorian Government insisted on $ 6 043 635.25. Expert Vincente Dominguez Zambrano concluded on US $ 55 567 055. Expert Manuel Silva Vasconez insisted on $ 41 883 379.12, but also calculated that in 1996 (beginning of expropriation) it was $ 18 201 930.62. $ 41 214 233.12 according to expert Juzgado Noveno. Expert Gutierrez Castillo concluded that the real price had to be $ 58 111 875, and it was $ 42 180 504.47 according to expert Jakeline Jaramillo Barca (§ 63).

    The Inter-American Court declared that it must take into account the value that existed before the beginning of expropriation (§ 80), and targeted the numbers of expert Manuel Silva Vasconez who was the only who provided the data for 1996. After this, the judges awarded $ 18 705 000 under the criteria of “rationality, proportionality and equality” (§ 84).

    On a number of occasions the Inter-American Court of Human Rights quoted the case law of the ECtHR as if it had any coherent sense (§§ 57-58, 60 etc.).

    7 août 2011

    The Inter-American Commission on Human Rights requires to close the Guantanamo Bay detention camp, Res. 2/11

    Previously on 12/03/2002 the Inter-American Commission on Human Rights had already granted precautionary measured in respect of 254 detainees requesting the USA to determine their legal status. The ignorance of the Obama Administration led the Commission to declare the violation of the right to trial and of the right not to be tortured on 21/07/2011.

    The Commission not only insists on either releasing or starting the trial of the detainees, but also declares that the diplomatic assurances must not be used to authorize the USA to violate the UN Convention against Torture. It denies the US argument on the applicability of the laws of war (right to detain combatants for an indefinite period), since contrary to the state of war it is unclear when and with whom a peace agreement could be concluded.

    Other requirements of the Commission include allowing it to meet and to interview the detainees, to provide education facilities for children and to separate them from adults.

    6 août 2011

    ECtHR introduces the right to whistle-blow, Heinisch, 28274/08

    ECtHR interpreted that the freedom of expression protects whistle-blowers from dismissal. Ms Brigitte Heinisch, geriatric nurse employed by Vivantes Netzwerk für Gesundheit GmbH to assist the elderly, complained about possible fraud to its superiors, and later filed a criminal complaint to the prosecution. The story became public and she was dismissed for this (§ 3). The deficiencies in institutional care were also pointed by the Medical Review Board of the Health Insurance (Medizinischer Dienst der Krankenkassen, §§ 7 and 9) and by the Berlin Inspectorate for Residential Homes (§ 84), but the prosecution discontinued the criminal investigation.

    I like this judgment because it de facto gave a binding effect to the Termination of Employment Convention C158 of the International Labour Organisation (§ 39) and to the Resolution 1729(2010) on The Protection of Whistle-Blowers issued by the Parliamentary Assembly of the Council of Europe (§ 37).

    The ECtHR rejected the argument of the German Government that Ms Heinisch was unable to prove the fraud (§ 53) with pointing that she acted in good faith, and there was a factual ground to do so.

    The ECtHR didn’t accept the German argument on the duty of loyalty (§ 55), since this duty disappears after a number of internal complaints (§ 73). Even more so given the fact that the public authorities (Land of Berlin) controlled the majority of Vivantes GmbH shares (§ 71).

    5 août 2011

    ECJ: implied agreement of the European Commission with a fiscal State aid is not a real agreement, Vizcaya et al., C-471/09 P

    Three historic territories of the Basque Country (Vizcaya, Alava, Guipuzcoa) granted a tax credit of 45 % for certain investments exceeding € 15 million (direct beneficiaries were Daewoo Electronics Manufacturing España SA and Ramondín SA, §§ 7-8). They tried to argue on appeal against EU General Court judgment that the Commission knew about the tax regime in 1993 but took the contested decision in 2002 only (§ 47). The absence of any action for so many years, according to them, created legitimate confidence in the legality of the tax regime.

    The ECJ replied that since the State aid was not notified as such to the Commission, its inaction does not give birth to legitimate confidence (§ 68).

    4 août 2011

    ILO starts adjudicating individual cases, SNTCPF, 162007MEX150

    International Labour Organisation is often criticized for non-consideration of individual issues. Case National Union of Federal Roads and Bridges Access and Related Services of Mexico (SNTCPF) et al. v Mexico is evidence to the contrary. After finding that Mexico failed to organize adequate inspection of coalmines that led to an exposure in the mine of Pasta de Conchos owned by Industrial Minera Mexico SA, subsidiary of Grupo Mexico, on 19/02/2006, killing 65 miners (§ 12), the ILO Tripartite Committee stated that Mexico must (§ 99(c)):

    • pay the families “adequate and effective compensation”,
    • and to impose sanctions on those responsible.

    1 août 2011

    What is a “reasonable compensation” for the depreciation of land? Choromidis, 54932/08

    Businessmen Efklidis Choromidis and Spyros Choromidis claimed that after a partial expropriation of their land for the purpose of constructing a railway, the remaining part of their land lost value of between 50 and 90 %, but the Greek Courts fixed the compensation for depreciation at 3 % (§ 58).

    The ECtHR justified this policy, since, according to the judges:

    • Anyway it was an industrial area with low esthetic value (§ 65);
    • Certain areas of their land anyway had not been constructible even before the construction of the railway (§ 67);
    • 3 % corresponds to € 88 068.87, which a priori does not sound unreasonable (§ 68).

    31 juil. 2011

    ECtHR: freedom of expression allows a journalist to say that a wine is “shit”, Uj, 23954/10

    Hungarian Supreme Court made a reprimand to journalist Péter Uj for characterizing wine produced by T.Zrt  as “shit”, i.e defamation violating the right to good reputation (§§ 8-9). He wrote: “hundreds of thousands of Hungarians drink this shit with pride, even devotion” (§ 6), and the ECtHR understood him.

    The ECtHR concluded that this reprimand had been unnecessary in a democratic society, that there was no pressing social need (§ 19) to sanction the wine expert. The judges focused on the purpose of the word “shit” that was not to insult but to serve merely as a stylistic decoration (§ 20), since calling a low quality wine “shit” is a common practice (§ 24). In this context, “shit” is not defamation but a value judgment raising awareness about the disadvantages of the economic policy (§ 23).

    30 juil. 2011

    ECJ gives access to internal litigation debates of the European Commission, Sweden v Commission, C-506/08 P

    The ECJ annulled the judgment of the EU General Court, and de facto gave MyTravel Group plc access to the European Commission’s internal litigation documents on accusing this company of a cartel agreement with its competitor First Choice plc. It is remarkable that it was the Government of Sweden who attacked the judgment refusing the access before the ECJ. MyTravel was also supported by Denmark and Netherlands, and opposed by France, Germany and the UK.

    The EU General Court, the Commission and the 3 States tried to protect the internal litigation documents in saying that a disclosure of a conflict between the Commission’s Legal Service and its DG Competition would put the Commission in a difficult position (§ 36), that it was an administrative procedure and not legislative (§ 62), that there is a need to preserve a “space for reflection” within the institution as it follows from the preparatory papers for Regulation No 1049/2001 (§ 63), that there would be a risk of facing divergent previous internal opinions raised against the EU institution in its future administrative or court proceedings (§ 65).

    The ECJ replied that the right to access is an expression of Article 1(2) of the EU Treaty providing that decisions must be as open as possible, and as close as possible to the citizens (which includes companies) (§ 72). The right of access to documents covers all possible documents held by an institution in all areas of Union activity (§ 88). It is even more so after the end of proceedings (§§ 82 and 89).

    29 juil. 2011

    ECJ extends the applicability of EU law to foreign Internet intentions, L’Oréal v eBay, C-324/09

    While analyzing applicability of EU law, we are used to structure the deduction according to location, time, person, and matter.  This time, the Grand Chamber of the ECJ made a new development: in order to say whether EU trademark law is applicable to Internet trade, one must answer whether the seller intended to attract EU consumers (§§ 61-62).

    eBay International AG was attacked by L’Oréal SA for providing online market place for the goods covered with the trademarks of the latter (including advertising them through Google).  Those goods were sold by sellers established outside the EU, and were not forwarded to the EU territory. The UK, Italy, Portugal, Poland and, of course, the Commission supported L’Oréal.

    24 juil. 2011

    ECtHR: prohibition to build minarets in Switzerland does not decrease the prestige of Islam

    On 29/11/2009 a Suisse referendum amended the Constitution and prohibited Muslims to build minarets. On 28/06/2011 the ECtHR declared the first counter-attack of Muslims inadmissible in case Ligue des musulmans de Suisse et al. c. Suisse, 66274/09.

    According to the 7 judges, the prohibition to build minarets doesn’t decrease the prestige of Islam and its religious organizations, doesn’t motivate Muslims to abandon their faith and leave the community organizations, and therefore the Suisse Muslim League does not have a standing to send this kind of complaints to Strasbourg (En droit, § 13).

    However since this affirmation is based on the presumption “Muslim organisations don’t say this”, they can re-submit this application even today.

    15 juil. 2011

    Destruction of trademark case law, TDI 2, T-318/09

    Audi AG and Volkswagen AG tried to register their word mark TDI once again. In 2003 they lost TDI proceedings T-16/02, since the judges considered that TDI is a descriptive term meaning “turbo direct injection” or “turbo diesel injection” (§§ 6 & 18).

    This time they brought the amulet Bild digital, C-43/08, and argued that similar signs CDI and HDI were registered (§ 12). Last week the reply of the EU General Court was: “the applicants cannot validly rely on the registration of the other signs as Community trade marks for the purpose of demonstrating that the contested decision is unlawful” (§ 24).

    Of course, we must continue using and comparing trademark case law in this kind of litigation, but the state of case law becomes even more indeterminate.

    6 juil. 2011

    ECtHR: absence of re-establishment of access to proofs after resigning from CEO does not mean that the trial was unfair, Messier, 25041/07

    Mr. Jean-Marie Messier, former CEO of Vivendi Universal and symbol of French capitalism, failed to convince the ECtHR that there was an unfair trial in his proceedings before the French Commission of Stake Exchange Operations, the Sanctions Commission of the Financial Markets Authority, etc. He was fined with € 500 000 for presenting “inexact, imprecise and insincere” (too optimistic) information on the financial health of the group to its shareholders and other market actors in 2000 – 2002 (§§ 7, 20), while being next door to bankruptcy.

    The CEO resigned and therefore lost the access to the documents of the company, which amounted from his perspective to unfair trial, since he was unable to find the documents discharging him, and to access to the documents consisting of tens of thousands pages taken by authorities (§§ 36-38).

    The ECtHR replied that:
    1. The documents he had not gotten access to had been impertinent for the case (§§ 58.2, 59).
    2. The former CEO didn’t explain to the ECtHR how the missing documents could contribute to his defense (§ 61.1).
    3. The former CEO could invite the authors of the missing documents as witnesses. This would help him better than the very documents (§ 61.2).

    5 juil. 2011

    ECJ refuses to ban monopoly in the betting on horseracing market, Zeturf, C-212/08

    Contrary to the expectations of the Maltese betting on horseracing company Zeturf Ltd, the ECJ refused to declare that the French monopoly at this market (held by Pari Mutuel Urbain) is disproportional or serves the interest of excluding competitors rather than protecting the society from possible money laundering through betting or from addiction.

    The French Government maintained that the monopoly is necessary to prevent too high addiction, to avoid money laundering, to comply with moral standards. Zeturf argued that the French monopoly advertises betting and, thus, increases addiction (§§ 65, 66), that this monopoly hides money laundering (§ 49). The judges decided to leave the “real reasons” (§§ 47, 62, 69) and proportionality (§§ 43, 70, 71) questions to the national courts. Obviously, this increases the national discretion for introducing this kind of monopolies.

    It is remarkable that the moral standards argument did not stop the ECJ from opening the profession of notary to foreigner nationals, and from allowing regulated professions (accountants, and attorneys?) to contact potential clients with commercial proposals.

    28 juin 2011

    Georgia looses not only the real war with Russia but also the judicial one

    The Georgian-Russian war started on 08/08/2008, and on 12/08/2008 Georgia filed an application against Russia before the International Court of Justice (ICJ), accusing Russian armed forces of ethnic cleaning under the International Convention on Elimination of All Forms of Racial Discrimination. An interesting question is whether this application was prepared before the start of the war or in 3 working days after its start.

    The ICJ dismissed the action on 01/04/2011 due to the fact that Georgia did not try to negotiate with Russia before suing its Government (§ 141).

    Georgians argued that Article 22 of the Convention providing a possibility of seising the ICJ in respect of “any dispute <…> which is not settled by negotiation” is merely a statement of fact (§ 128), but the ICJ replied that a dispute which is settled is not a dispute anymore (§ 134). Therefore, this phrase must mean that Georgia had to try to negotiate with Moscow. The future perfect tense of the French version even more suggests the need to try negociating: “tout différend … qui n’aura pas été réglé par voie de négociation” (§ 135). The ICJ also added that this is the precondition for an application under a number of other international treaties as confirmed by case law (§§ 131, 137, 138).

    No exception for the state of war.

    It is strange that Georgia adopted the legal strategy of a direct action, did not take insurance, and did not preview the scenario that has happened. The Saakashvili Government hired 14 lawyers for this case and Russians had 23.

    27 juin 2011

    From time to time the ECtHR compares internal case law

    In Bulfracht Ltd. v Croatia, 53261/08, the ECtHR decided to compare the case law of the Croatian Constitutional Court on the calculation of claim value threshold to cross in order to be able to appeal on points of law (§ 39). This is the domain that is traditionally protected by the spirit of non-interpreting national law.

    The Bulgarian ship’s operator Bulfracht Ltd. tried to sue the Croatian shipping broker company J.A. as a guarantor for the Cypriot company TWS who had ordered carriage of goods from Ukraine to Taiwan but had not paid the agreed USD 515 099.20 (§ 6). The threshold for appealing to the Croatian Supreme Court was HRK 500 000. In that case the Croatian Constitutional Court decided that exchanging USD into Yugoslavian dinars, and then to Croatian kuna (HRK) was the correct practice. Due to this manner of currency exchange the threshold was not met. However later the Constitutional Court adopted another Ruling stating that USD shall be exchanged directly into HRK.

    Nevertheless, I’m not sure that such a comparison might become a permanent practice of the ECtHR.

    26 juin 2011

    In-house lawyers may not represent their companies, UKE, T-226/10

    The EU General Court adjudicated in UKE v Commission, T-226/10, that in-house lawyers may not represent their companies in a litigation, since they are employees, and therefore aren’t independent. Even a dismissal of an in-house lawyer would not save the claim, since only the date of introduction of the claim counts (§ 2).

    UKE tried to argue that it had a separate independent legal department, that the Polish law required maintaining independence, that the decision on litigation was made by the President of the company, and the 2 lawyers were employed by its Secretary General (§ 9).

    However according to the General Court, only the EU institutions and Governments may be represented by in-house lawyers, but private companies and individuals must hire law firms (§ 12). A lawyer employed by secretary general has less independence than a lawyer from a private law firm (§ 21). The claim was declared inadmissible.

    I often ask myself: what does the judge really think when she changes someone’s life due to such nonsense?

    20 juin 2011

    “Detailed position” standard for motivation in competition law

    The EU General Court annulled the decision of the European Commission condemning Air liquid SA for the participation of its 100 % controlled Chemoxal SA in a cartel at the peroxide of hydrogen and perborate of sodium market, since the motivation of the Commission did not met the “detailed position” (“position circonstanciée”) on the proofs standard in case T-185/06. The main question was whether the two companies were the same economic entity. I would like to make a photo of this adjudication, since the application of this standard always appeared to me chaotic (or what I call “judicial shamanism” elsewhere).

    The Commission stated in its decision that Chemoxal SA is the same economic entity with Air liquid SA, since

    1. the latter owns 100 % of shares of the former, and the former uses commercial name “Air Liquid Chimie”.
    2. Air liquid had the power to appoint the members of the Chemoxal’s Administrative Council.
    3. The perception of third persons was that they are the same economic entity.

    According to the EU General Court these are “supplementary indications” (§ 70), and not a “detailed position” on the proofs of Air liquid (§ 79). In § 67 the General Court names the arguments of Air liquid:

    1. No director of Chemoxal was a member of the Air liquid Management Committee or another internal body at the same time. According to the European Commission an administrator of Chemoxal after ending his office there became a manager of Air liquid, § 49.
    2. It follows from the minutes of the Chemoxal Administration Council that its President Director General had unlimited decision freedom. According to the European Commission this is quite normal from the formal point of view (§ 50).
    3. Chemoxal had its own independent departments: commercial, marketing, human resources, IT, accounting. According to the European Commission it is quite normal. In addition, Chemoxal used other departments of Air liquid, and the two companies had their seat in the same building (§ 51).
    4. Chemoxal autonomously managed its participation in Oxysynthèse Deutschland GmbH. Although one representative of Air liquid was a member of Oxysynthèse Administration Council, only one representative of Chemoxal sitted in the Management Committee of Oxysynthèse. This according to Air liquid proved that there was no common management of other companies.
    5. Chemoxal SA autonomously managed the participation in Chemoxal Chemie GmbH.
    6. Internal mails show that Chemoxal took the decisions on prices without interference of Air liquid.
    7. All great strategic commercial projected were launched by the very staff of Chemoxal.
    8. It follows from the circulaire of the Chemoxal Director General that Chemoxal independently prepared its budget.
    9. Chemoxal directly contacted with all its clients.
    10. Chemoxal was considered as an autonomous company by European Chemical Industry Council.
    11. The fact of using the commercial name of “Air Liquid Chimie” by Chemoxal does not prove economic unity, since Chemoxal simply wanted to take advantage from a well-known brand.
    12. No one among participants of the cartel meeting was an employee of Air liquid.

    18 juin 2011

    Financial supporter of impeached Lithuanian President Rolandas Paksas and the key person of the impeachment, lost his case

    Another interesting point was made in the impeachment of Lithuanian President Rolandas Paksas story by the Strasbourg Court in case Borisov v Lithuania, 9958/04. Mr. Jurij Borisov, owner of Avia Baltika company, made a contribution of € 349 000 to the Paksas election campaign, and the latter was elected President of Lithuania on 05/01/2003.

    Due to business interests, Mr Borisov took the Russian citizenship, which meant annulment of his Lithuanian citizenship. However he also had business interests in Lithuania. Then President Paksas granted him Lithuanian citizenship for “merits to Lithuania” (ECtHR tries not to mention the merits notion in the judgment), since Mr Borisov had the Medal of Darius & Girenas for merits to Lithuania, for the efforts to glorify the name of Lithuania in the World and assisting the State in its integration into the World Community of States. Other “merits” were the fact of spending € 1 740 000 for charity, paying € 5 million of taxes, creating 200 jobs directly, and 600 indirectly.

    The Lithuanian Constitutional Court declared the grant of citizenship for merits to Lithuania unconstitutional. As a result, President Paksas was impeached on 06/04/2004. A lifelong prohibition to stand for presidential, parliamentary, and local elections, as well as a lifelong prohibition to become Prime Minister (Paksas is a twice former Prime Minister) or a minister was imposed on the impeached President of the Republic.

    Mr Borisov was fined about € 2 900 for threatening the President. He would disclose certain information about the President, if the President did not appoint him his voluntary adviser (contrary to what the ECtHR writes in § 30, there is a difference between “voluntary adviser” and “adviser”). This provoked the desire of the Lithuanian Ministry of Interior to deport Mr Borisov from Lithuania due to “threat to national security”. On 28/06/2006 the President of the Lithuanian Parliament, Mr Viktoras Muntianas, addressed the General Assembly of Judges and stated that it would be “bad” if the Lithuanian Courts decided not to deport Mr Borisov from Lithuania.

    The proceedings for deportation of Mr Borisov lasted for 6 years and 7 months until 13/08/2010 when he got a permanent residence permit, and he tried to argue that this was interference with his normal family life, since his parents, wife and children were Lithuanian citizens and lived in Lithuania (Article 8 of the Convention). However the ECtHR refused to consider the compatibility of the very change of style of family life as an interference, and argued that from 13/08/2010 there was no longer any justification for examining the merits of the case (§ 106).

    The ECtHR expressed a “deep concern that the decision making in [Borisov] case was politicised”, pointed that “neither can the Court fail to observe that the Supreme Administrative Court chose to remit the case for fresh examination two times on somewhat contrived izobret grounds, thus continuing to keep [Borisov] and his family in a state of uncertainty” (§ 112). The 7 judges “regretted” that Borisov proceedings were that long (§ 112). However Borisov did not get any practical advantage from this moral consideration.