Certain aspects of case Zhovtis v Kazakhstan, 2021/2010

The European Parliament and the European Commission declared Mr Evgeny Zhovtis a victim of political persecution by Kazakhstan. He is a well-known human rights activist who was sentenced to four years of imprisonment for killing a pedestrian in a traffic accident. The European Union considered that this sentence was a punishment for defense of human rights. Mr. Zhovtis lodged a communication with the UN Human Rights Committee.

The case has three interesting aspects.

1) The internal criminal case started after the ratification of the Covenant of Political and Civil Rights by Kazakhstan, however the Optional Protocol providing the right of individual petition was ratified on 30/09/2009 in the middle of the internal criminal case. What shall we do with the possible breaches of the Covenant before the latter date? The Committee applied a strict interpretation, and rejected everything the author had written (§ 7.4).

It is interesting that Article 40 of the Covenant provides the Committee the right to require a report of a State on a particular question. I have no example of how it works, but it could be a remedy to many authors similar to those in Kazakhstan before 30/09/2009.

2) Mr. Zhovtis claimed that the internal appeal court had to call independent experts who could possibly explain that it had been a fault of the pedestrian (§ 2.7). The Committee answered that he “failed to demonstrate that the alleged “bias” or “lack of equality of arms” reached the threshold for arbitrariness in the evaluation of the evidence, or amounted to a denial of justice” (§ 7.5). Could extensive examples of Kazakh case law help? This question is open.

3) Finally, Mr Zhovtis claimed that the fact that he was not present personally but just represented at internal appeal proceedings breached the right to appeal (§ 2.9). The point of view of the UN body is that this does not lead automatically to the breach of the right of appeal within the meaning of Article 14(5), and needs more substantial argumentation (§ 7.6).  

Thus, there might be differences between appraisal by the European Parliament and the European Commission on one hand, and by the UN judicial bodies on the other hand.

Suing State for damage by its supreme court before its administrative courts as an exhaustion condition, NML Capital Ltd v France, 23242/12

In 2000 Argentine issued bonds to be paid in 2020 and 2030, but the Republic became bankrupt already in 2001. Argentine signed a Fiscal Agency Agreement providing that it renounced its sovereign immunity as a State, and that in a case of its default at least 25 % of the total amount of debt were immediately payable. Under the Fiscal Agency Agreement the judicial competence was transferred to the United States District Court for the Southern District of New York.

Deptee company NML Capital from Caiman Islands obtained an order from the latter New York obliging Argentina to refund and compensate $ 284 184 632.30 (§ 7). After this, NML Capital addressed the French Courts in order to arrest the funds of Argentina’s diplomatic missions in Paris.

The French Cassation Court agreed with the validity of the New York judgment, however refused to order arrest of Argentina’s funds in France due to sovereign immunity.

It is quite natural to think that after the Cassation Court you have exhausted all internal remedies, and NML Capital attacked it before the European Court of Human Rights. However on 13/01/2015 the Strasbourg judges decided that NML Capital had to attack the French Republic before the French administrative courts for “breach of equality in terms of public burdens” (“rupture de l'égalité devant les charges publiques”, § 19).

“Breach of equality in terms of public burdens” is a procedure absolutely similar to the Köbler procedure of the EU Court of Justice. It is interesting to note that the European Court of Human Rights already several times interpreted that the Köbler procedure is not a requirement within any obligatory meaning of Strasbourg procedures.

After Strasbourg, there is an appeal open to the UN Human Rights Committee. This UN jurisdiction does not accept complaints from legal persons. It is interesting to know that many UN States do not recognize Caiman Islands companies as legal persons. Could NML Capital act as a natural person then?

“Death words” of the plaintiff killing his tax case, Cañada Mora v Spain, 2070/2011

Spanish wine producer José Antonio Cañada Mora was attacked by tax authorities imposing on him a tax debt of € 481 154 for periods from 1992 to 1996 (§ 2.1). There were chances to avoid loosing the money, since the debts for 1992 and 1993 had expired pursuant to the legal statute of limitations, and a substantial part of evidence, i.e. copies not supported by originals, filed by tax authorities had been declared inadmissible (§ 2.2).

On 14/03/2005 Cañada Mora filed an application for amparo (legal protection) before the Spanish Constitutional Court, however his case was still pending before the lower Supreme Court. On 01/04/2005 the Supreme Court dismissed the cassation, since its value taken separately for each quarter was less than € 150 258 (§ 2.8).

On 25/04/2005 Cañada Mora second time applied for amparo before the Constitutional Court, and the application contained the words that he “reiterate[d] the application for amparo that was lodged on 14/03/2005” (§ 2.9).

These words became death words. The Constitutional Court merged the second application with the first one, took into consideration the date of 14/03/2005, and on that ground declared it inadmissible (proceedings still pending before a lower court, § 2.10).

The European Court of Human Rights supported the Spanish judges (§ 2.11), and Cañada Mora appealed before the UN Human Rights Committee.

The UN Committee answered that it does not follow from the death words that the purpose of Cañada Mora was to submit a second request for amparo separate from 14/03/2005 (§ 4.3).

Happy New Year! 2015 - my blog is back.

After a year brеак and being amused that my blog reached several thousand visitors per day, I restart posting. Among the most wonderful things of 2014 I'd mention:

1. I won the case of impeached President of Rolandas PAKSAS of Lithuania before the United Nations on 25/03/2014.
2. I got the title of full professor of law for life in Moscow and in Almaty.
3. I learned that there are three kinds of responses from the UN Human Rights Committee during the first stage of litigation:

• your complaint is dismissed and please forget own address;
• your complaint is dismissed and these are reasons (take a chance to explain it once again if you believe you are right);
• please provide additional information (and then wait for at least 6 months);
• we communicate your case to the respondent Government.

Oh, year - my blog will be in three languages: English, Lithuanian and Russian - discovering new markets, guys.

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LIETUVIŠKAI
Po metų pertraukos, grįžtu prie blogo ir pradedu jį daryti su vertimu į lietuvių kalbą tam, kad Lietuvoje tam tikriems žmonėms būtų blogiau. Tarp žymiausių pasiekimų pernai išskirčiau:

1. Laimėjau Prezidento R. Pakso bylą Jungtinių Tautų Žmogaus teisių komitete. Tą dalį, kurią atmetė Strasbūras – priėmė JTO.
2. Iki gyvos galvos tris kartus gavau teisės profesoriaus vardą Maskvoje ir Almatoje.
3. Atradau, kad būna keturi JTO atsakymai per pirmą bylos etapą:

• Jūsų skundas atmetamas ir pamirškite mūsų adresą;
• Jūsų skundas atmetamas ir štai kodėl (jeigu mes padarėme akivaizdžią klaidą – paaiškink, bet labai trumpai ir aiškiai);
• pateikite papildomą informaciją (o po to laukite mažiausia 6 mėnesius);
• persiunčiame Jūsų skundą Lietuvos Vyriausybei.

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ПО-РУССКИ
После годового перерыва возобновляю блог. Так как появились русскоязычные клиенты, буду делать посты и по-русски. Среди достижений 2014 я бы выделил:

1. Выиграл дело отстраненного в результате импичмента Президента Литвы Роландаса ПАКСАСА против Литвы в ООН.
2. До конца жизни трижды получил звание профессора права в Москве и Алматы.
3. Узнал и сразу проклассифицировал, что бывают следующие варианты ответа из ООН на вашу жалобу:

• ваша жалоба отклонена и забудьте наш адрес;
• ваша жалоба отклонена и, вот, причины (попробуй еще, если мы сделали очевидную ошибку, но коротко и ясно);
• пришлите дополнительную информацию;
• шлем вашу жалобу вашему правительству.

В Комитет по правам человека ООН мы можем обжаловать решения Верховных Судов России, Литвы, Казахстана, Киргизии, Белорусии и других стран.

EU Court of Justice crashes "Asian despotism" of the EU General Court, Strack, C-579/12 RX-II

When the EU General Court hears the case on appeal from the EU Civil Service Tribunal, sometimes the First Advocate General may propose to the Court of Justice of the EU to review the judgment of the EU General Court. This may happen if the General Court judgment “adversely affects the unity and consistency of EU law”. It is interesting to take a look how the latter concept functions in the case Strack, C-579/12 RX-II, won by applicant on 19/09/2013.

Mr. Guido Strack had the right to 38.5 days of annual leave in 2004 that he was unable to take due to illness, and he wanted to transfer those days to 2005, but the EU institutions established that 12 days only might be taken from one year to another (Article 4 of Annex V to the Staff Regulations, § 10). He won at the Civil Service Tribunal, but the EU General Court set aside the first instance judgment.

According to Schultz-Hoff, C-350/06, §§ 22, 23, 25, 41, 45, 50 and 61, Article 7 of Directive 2003/88 implies that in such cases the leave days shall be transferred to the next year (§§ 15, 31), but the EU General Court held that EU directives are not binding on the EU itself – EU directives are binding on Member States only (§ 19, and § 40 of judgment Strack, T-268/11 P).

Voltaire (1694 – 1778) was calling such an attitude “Asian despotism”. The CJEU held that the measure of transferring the leave days “contributes directly to the improvement of health and safety protection for workers” within the meaning of Article 153 TFEU (§ 44). Taking away those days also breaches the principle of the social law of the EU affirmed by Article 31(2) of the EU Charter of Fundamental Rights (§ 46).

On review, the Court of Justice considered that the Directive 2003/88 should be considered as an “integral part of the Staff Regulations as minimum requirements … and without prejudice to the more favourable provisions” (§ 51).

However, the CJEU did not give EU directives a direct binding force on EU itself. According to the CJEU the Directive 2003/88 is binding on the European Commission as far as it “refers to" the Treaty and to the Charter only. Thus, it is difficult to say whether this kind of Asian despotism will not be continued in other cases (§ 52).

What becomes clear from the Strack, C-579/12 RX-II, case is that, at the level of legal strategy, it is good to use a lot the concept of “adverse effect to the unity and consistency of EU law” in all your writings to the EU General Court. You will not be allowed to submit any paper to the First Advocate General. Thus, the only away to attract his attention is to repeat this mantra before the EU General Court. There are indeed hundreds of cases that breach the Charter to the same extent as it was done in case Strack, but the support of the First Advocate General is a lottery.

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.

Avoiding competition formalities and accelerating purchase strategy, Editions Odile Jacob SAS, C-551/10 P

On 06/11/2012 the Grand Chamber of the European Court of Justice confirmed the wisdom of Lagardère SCA strategy for accelerating purchase of another company despite the presence of anti-concentration formalities. Vivendi Universal put on the table an urgent proposal to buy Vivendi Universal Publishing SA, a book publishing business in Europe and Latin America except Brazil. Lagardère didn’t have time to get clearance for this step from the competition authorities. So the decision was taken that the Vivendi Universal Publishing would be bought by Investima 10 wholly owned by Ecrinvest 4 SA wholly owned by Segex SARL wholly controlled by Natexis Banques Populaires SA (§ 2).

It was agreed that after getting clearance from the European Commission, Natexis Banques Populaires would sell the target assets back to Lagardère (Article 3(2)(i) of the NBP/ Lagardère sale contract, § 12).

Lagardère's competitor Editions Odle Jacob attacked this operation arguing that the transaction as a whole hiding the ultimate purchaser with a provisional one should be annulled (§ 26). The Natexis Banques Populaires subsidiaries created for the sole purpose of this transaction were not independent but bound vis-à-vis Lagardère by a contract (§ 27). The ECJ replied that the arrangement did not affect the very legality of the purchase (§ 34). It might lead to penalties but not to annulment of the transaction (§ 38).

European Commission may force national courts to enforce its decision while the legality of the decision is pending in Luxembourg, Europese Gemeenschap, C-199/11

This judgment dated 06/11/2012 is extremely interesting due to the legal strategy used by the European Commission. The Commission took a decision that certain manufacturers of elevators and escalators (Otis NV, Kone Belgium NV, Schindler NV, ThyssenKrup Liften Ascenseurs NV, General Technic-Otis Sàrl, Kone Luxembourg Sàrl, Schindler Sàrl, ThyssenKrup Ascenseurs Luxembourg Sàrl) who had worked with the EU buildings had a cartel agreement and infringed Article 101 TFEU (§ 2). The companies challenged the decision before the EU General Court, and then on appeal before the Court of Justice (§§ 21, 22, 57).

And then, instead of waiting for a judgment from the ECJ, the Commission acting as a representative of the EU brings a civil action against the companies before the Brussels Commercial Court, asking to order the payment of the provisional sum of € 7 061 688 (§ 23). The advantage of the Commission’s position before the Brussels Commercial Court is that, contrary to the EU General Court and the ECJ, it cannot depart from the line of the Commission (Article 16(1) of Regulation No 1/2003, §§ 26, 38).

The companies raised the fair trial principle under Article 47 of EU Charter of Fundamental Rights, Article 6(1) of the European Convention of Human Rights, and the principle nemo judex in sua causa (§§ 37, 39). The Grand Chamber of the ECJ gave 2 reasons for approving the role of the Commission. First, “any person can rely on a breach of Article 101 TFEU before a national court, including the European Commission (§§ 40, 44). Second, despite inability to declare the absence of the anticompetitive practice, the national court remains free to appreciate the existence of loss for the EU and a direct link between the loss and the anticompetitive agreement (§ 65).