27 mars 2011

European Court of Human Rights justifies shooting at demonstrators during the G8 summit, Giuliani v Italy, 23458/02

The Grand Chamber annuls the Chamber judgment finding a violation of the right to life in case Giuliani. During the anti-globalist protests against the G8 summit in Genoa on 20/07/2001, 23-years old Carlo Giuliani picked an empty fire extinguisher off and possibly indented to throw it towards the military police jeep. Other demonstrators were throwing little stones. Policeman (carabiniere) Mario Placanica shot into the face of Carlo, and when the body of the latter fell, the police jeep twice drove over him.

According to the 10 of 17 Grand Chamber judges, the carabiniere acted in self-defence (§ 189). Possibly such a statement might have a sense but the very carabiniere recognized that he had not seen at whom he fired. This simple but ignored fact denies the capacity of the policeman to appreciate the individual danger caused by Carlo Giuliani.

The family of Carlo argued that the State had to equip carabiniere with non-lethal weapon, and not with semi-automatic combat pistols. The Grand Chamber replied that the use of combat weapon was justified because it was an attack of demonstrators, and not a planned operation for dispersion (§ 216).

The Chamber considered that the fact that the family had only 3 hours to nominate an expert for performing the autopsy violated the right to life. Right after a superficial autopsy an authorisation was given to cremate the body – even before the content of the expert medical report was known. As a result, it became impossible to determine whether the shot had been direct. The Grand Chamber annulled the Chamber judgment in arguing that even if the shot was direct the use of semi-automatic combat weapon was justified.

The Italian judge supported shooting, while judges Boštjan Zupančič and Françoise Tulkens related to critical legal approaches led the dissenting minority.

Ciao Carlo.

26 mars 2011

EU General Court extends the presumptions of participation in a cartel, Viega GmbH, T-375/06

The European Commission imposed fines totalling EUR 314.75 million on 30 companies for having participated from 31/12/1988 to 01/04/2004 in a cartel in the copper fittings sector. German company Viega GmbH got he highest fine of EUR 54.29 million, and the EU General Court did not reduce it.

The judgment introduces two precisions on application of presumptions of participation in a cartel:

1) If a company participates in 5 of 12 cartel meetings, and other companies discuss the commercial practices of this company in its absence during other meetings, this company will be considered as participating in other meetings, too (§§ 30, 43, 50 and 51).
2) If a company exchanges information on its commercial practices with another company participating in a cartel, the former company will also be considered as participating in this cartel (§§ 55, 62).

The EU General Court also interpreted that a non-participation in meetings of an association of the sector producers (like the European Fittings Manufacturers Association or “Super EFMA”) serving as the structural or administrative core of a cartel, does not constitute a mitigating circumstance, since the cartel meetings usually happen informally (§ 94).

25 mars 2011

European Court of Human Rights re-decorates the classrooms with crucifixes, Lautsi v Italy, 30814/06

By the majority of 15 versus 2, the Grand Chamber of the European Human Rights Court annulled the unanimous 7-judges judgement of the Chamber that had declared the presence of crucifixes in Italian classrooms contrary to the right to education and to the freedom of conscience. 10 Governments attacked atheists and non-Christians before the Grand Chamber. It is notable that the Italian judge and the Swiss judge of Italian origin were against the crucifixes.

The annulled judgement was motivated with the fact that in small Italian towns the parents who do not wish their kids to study in classrooms decorated with crucifixes do not have a choice – there are no alternative schools. The Grand Chamber replied that this is a matter of national discretion. The classical discretion argument is supported with the statement that there is no sufficient international consensus on this issue: crucifixes are present in schools of 4 States over 47.

The Grand Chamber also presented several smaller arguments: despite the crucifixes, Italians do not forbid women to wear the headscarves, Muslims are allowed to celebrate the end of Ramadan, and there is no general persecution of atheists or non-Christians.

23 mars 2011

ECJ prohibits the European and Community Patent Court with its opinion 1/09

ECJ prohibits the European and Community Patent Court with its opinion 1/09 -- it claims to protect the powers of national courts to consider patent cases, and acts in the name of individual rights that mught be violated by the Patent Court. Judicial sovereignity.

38 States among which we find all the EU Member States intended to establish a common Patent Court. 7 EU Member States were against, and 14 were in support of this idea. The EU Council submits this initiative for an opinion of the European Court of Justice.

It goes without saying that the very submission is already the abortion of the Patent Court. It is a termination of pregnancy. Previously, certain EU Member States had already tried to subject the decisions of the European Court of Justice to the authority of the European Court of Human Rights, and the ECJ vetoed those initiatives. The ECJ also vetoed the idea of Ireland to submit certain parts of the European maritime law to a higher International Tribunal. This time once again someone comes with a proposal to establish a Court higher than the European Court of Justice, and asks the permission of the same European Court of Justice.

However, of course, the 21 judges of the ECJ don’t say directly that the Patent Court is an attempt to reduce their powers, and therefore it shall not exist. The ECJ declares that it acts in the name of the national courts in order to maintain their power to consider patent cases, and in the name of individual rights, since if the Patent Court violated them, the ECJ would not have the power to defend the people.

What ever happens with the death of the unborn Patent Court, in a general perspective this prohibition promotes the imposition of the EU patent standards on other countries.