ECHR bans advertising of UFO contactors, MRS, 16354/06

On 13/07/2012 by a majority of 9 votes to 8 the European Court of Human Rights supported the decision of Swiss authorities to ban a poster campaign of the Swiss Raelian Movement (Mouvement raëlien suisse) promoting contacts with extra-terrestials. Mr. Claude Vorilhon (Raël) who allegedly entered into a direct contact with extra-terrestrials (Elohim) from an Unidentified Flying Object in 1973 founded the Movement in 1975. It unites UFO contactors, as well as people interested in inter-galactic relations.

The prohibited 97 cm by 69 cm poster was showing extra-terrestrials’ faces, a pyramid and a flying saucer, had slogans “The Message from the Extra-Terrestrials” and “Science at last replaces religion”, as well as a reference to the website http://www.rael.org (§ 14).

The Strasbourg judicial majority supported the ban on the UFO contactors’ poster in 2 steps:

1. The Court declared that the nature of the poster is not political but rather commercial, which means that the State’s margin of appreciation is broader (§ 62). The minority of 8 judges counter-argued that the Movement did not try to sell anything but rather to spread its world vision, which means that the poster is non-commercial or philosophical. The Movement position is that this interpretation allows the State to justify a systematic refusal and oppose expression of non-majority ideas in public on a permanent basis (§ 34).
2. The ECtRH declared that such reasons as support of human cloning, geniocracy (society governed by intellectual elite), and the fact that certain members of the Movement had been accused of paedophilia, "taken together" may “reasonably entitle” the national authorities to ban the poster. Although, he majority of judges admitted that “taken separately” these 3 facts “might not be capable of justifying” the ban (§ 72). The UFO contactors argued that they had not been participating in any human cloning but simply expressing their favourable opinion about it, and that geniocracy was not a real political project but a mere utopia (§ 36). The minority of 8 judges pointed that no cases of paedophilia had been proven, and that otherwise the Movement as such would already be banned.

The Movement expressed its intent to continue the litigation before the UN HRC.

ECtHR refuses to apply ECJ judgment because it was unforeseeable, Ioviţoni, 57583/10

Romania introduced a pollution tax for the first registration of a car. In this manner, if you buy a second hand car in Romania (i.e. the car has already been registered in Romania), you do not pay any pollution tax. However when you bring a second hand car from another EU State (like Germany), you must pay the pollution tax. On 07/04/2011 the European Court of Justice found in case Tatu, C-402/09, that this was indirect trade discrimination against sellers from other EU States contrary to Article 110 TFEU (§ 33).

In 2010, previously to the ECJ judgment, commercial company Holtzver SRL and others tried to get the pollution tax back, but the Romanian Appellate Courts dismissed their actions (§§ 9, 13). The victims of trade discrimination could not file a claim directly to the ECJ. Therefore, the company wished to prove the breach of property rights before the European Court of Human Rights.

The ECtHR declared the applications inadmissible, since the ECJ judgment “had not been evident” (§ 49).

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.

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.

ECJ allowed accountants (& attorneys?) to contact directly a potential client in order to propose their services (démarchage).

In case Société fiduciaire nationale d’expertise comptable, C-119/09, the Grand Chamber of the ECJ interpreted that the prohibition for accounting experts (and by extension, for attorneys) to address potential clients directly in order to propose their services is incompatible with the freedom of commercial communication (Article 24 of the directive 2006/123 on commercial communication of regulated professions).

The ECJ interpreted that such a total prohibition is incompatible with this kind of freedom even if it is necessary to guarantee the independence of the profession, is non-discriminatory, proportional, and based on public interest (§§ 44-45).

3 EU States, and the Commission submitted their observations. The ECJ rejected the opinion of the Advocate General, which happens very rarely.