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).