26 nov. 2012

Broken seal leads to a fine of € 38 million for E.ON Energie AG, C-89/11 P

The European Commission suspecting E.ON Energie AG in an anti-competitive agreement sent them an inspection in Munchen, which sealed a door at the end of the day in order to continue in the morning. The seal was measuring 90 mm by 60 mm. In the morning, the white adhesive, by means of which the seal had been fixed to the substrate, remained on the latter in the form of “VOID” message about 5 mm high, distributed over the whole surface of the adhesive label. The seal became transparent, so that the “VOID” message was visible on the seal (§ 8). Thus, the European Commission presumed that the company people broke the seal in order to enter the room and destroy proofs.

However the shelf life of the seal itself had been expired, and there was no damage to the very letters of the seal. Therefore, E.ON Energie asked for a measure of inquiry to that matter, but the EU General Court denied the motion (§§ 109-110). The EU Court of Justice replies that this denial is not a subject to appeal (§ 115).
The ECJ held that the fine of € 38 million representing 0.14 % of E.ON Energie’s annual turnover could not be considered as disproportional due to the need to ensure deterrent effect. The maximum fine in the case of broking the seal could go up to 1 % of annual turnover. 

As I already wrote in previous posts, it is sad that the deterrent effect principle is never applied when the European Commission of the European Parliament themselves breach EU law and fundamental human rights.

25 nov. 2012

ESRC forbids reduction of social rights during economic crisis, GENOP-DEI v Greece, 65/2011

Due to the economic crisis, Greece issued new law allowing dismissal of a person with indefinite contract during a probation period of 12 months without notice (§§ 8, 14). The European Social Rights Committee reminded the Greek Government that in the general introduction to its Conclusions XIX-2 (2009) the Committee dismissed any possibility of reducing social rights during an economic crisis, since it is the time when the beneficiaries need the protection most (§ 16).

The Greek Government tried to maintain that the trial nature of the period justifies the initial instability of employment (§§ 23-24), but the Committee replied that the concept of trial period may not be interpreted so broadly that the notice and severance pay guarantee would become ineffective (§ 26).

Thus, Greece violated Article 4(4) on the right to reasonable dismissal notice of the European Social Charter.

24 nov. 2012

Covering legal costs before the EFTA Court, Konkurrenten.no v ESA, E-14/10 COSTS

Previously I already wrote about the case Konkurrenten.no. Now the matter of legal costs to be covered by the EFTA Surveillance Authority came back to Luxembourg. The parties finally agreed on hourly rate of € 340 (§ 29) but disagreed on the number of hours. We have the following picture:

Konkurrenten.no appraisal (§§ 5, 10)
EFTA Surveillance Authority appraisal (§ 18)
EFTA Court decision
Drafting the application for annulment
137.50 h
56 h
105 h
Drafting reply to the defense
84.25 h
40 h
55 h
Application for measures of organization leading to the calling of the first witness
29 h
14 h
18 h
Observations on intervention from KTP/Unibuss
4.25 h
4.25 h
4.25 h
Preparation and attendance of oral hearing
31 h
12 h
26 h
Application for the taxation of costs
5 h
0 h
5 h
Total hours:
291 h
126.25 h
189 h
Total lawyers fee:
€ 102 130
€ 42 925
€ 69 360

The EFTA Court explained its deduction with the statement that the case does not raise new points of EEA law (§ 31). Moreover, the Konkurrenten.no lawyer did not represent it in the administrative procedure, and thus needed more time (§ 32).

It is interesting that the EFTA Court decided that the EEA law does not forbid disclosing of a letter headed “without prejudice” in the proceedings for the taxation of recoverable costs (§ 25).

23 nov. 2012

UN HRC: denial of UN HRC competence breaches UN law, Korneenko v Belarus, 1226/2003

On 25/01/2002, Viktor Korneenko, chairman of the Gomel regional association Civil Initiatives, was fined $ 615 for use of “untied foreign aid” (computer equipment. 5 computers and 2 printers of his NGO were confiscated (§ 2.7). After the exhaustion of domestic remedies, he addressed the UN Human Rights Committee.

The Belarusian Government declares that under the Optional Protocol the State parties have no obligation to recognise the Committee’s Rules of Procedure and its case law (§ 6.2). The Committee replies that Article 39(2) of the Covenant authorizes it to establish the Rules of Procedure. Any State party to the Optional Protocol transfers the respective competence to the Committee (Preamble and Article 1). This kind of declaration breaches Article 1 of the Optional Protocol to the Covenant.

22 nov. 2012

No animal rights campaign instrumentalising the Holocaust image (at least in Germany), PETA v Germany, 43481/09

PETA Deutschland (People for the Ethical Treatment of Animals) tried to organize an advertising campaign under the head “The Holocaust on your plate” in Germany but it was banned, and the European Court of Human Rights confirms the ban. The posters had to make a photo parallel between Holocaust and the pain of animals. PETA intended to use the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption” (§ 7).

PETA tried to explain that they do not trivialize the suffering of human beings, neither they have any anti-Semitic background. In the USA and Austria, this campaign did not meet such obstacles (§ 28).

The ECtHR replied that the ban is necessary in a democratic German society because of the German past, because they deem themselves under a special obligation towards the Jews (§ 49). The ban is proportional, since PETA remains free to find other means of drawing public attention to the issue of animal protection (§ 50).