C-240/09 Lesoochranarske zoskupenie: follow-up

On 2nd August 2011, Slovakia's Supreme Court (Najvyšší súd) decided a number of cases (I found four) for whom the judgment in C-240/09 Lesoochranarske zoskupenie was directly relevant (in fact, it was in the framework of those proceedings that the Supreme Court addressed the Court of Justice the preliminary questions in C-240/09; for more info, see http://bxl-law.blogspot.com/2011/03/c-24009-lesoochranarske-zoskupenie.html).
The judgments can be downloaded (in Slovak) from the website of the Supreme Court (http://nssr.blox.sk/, look for judgments no 3Sžp/49/2009, 3Sžp/50/2009, 3Sžp/48/2009 and 3Sžp/47/2009).
All the four judgments are based on (virtually) identical (and rather short) reasoning. Quite simply, the Supreme Court ruled that despite the lack of direct effect of Art. 9.3 of the Aarhus Convention in the Union law, it is necessary, in order to make possible effective protection of the environment as laid down by the Union law, to treat the relevant NGO as a party to the proceedings (and not just an interested party who cannot appeal the administrative decisions and cannot challenge them before the courts).
Problem solved...

C-264/09 Commission v Slovakia: let bygones be bygones (yes indeed)

In its judgment of 15 September 2011, the Court of Justice followed the views expressed by GA  in his opinion (http://bxl-law.blogspot.com/2011/03/c-26409-commission-v-slovakia-let.html) and dismissed the action of the Commission.

On Article 307 TEC (now Article 351 TFEU)

Just like the GA Jääskinen, the primary issue for the Court was whether the agreement in issue should prevail over Directive 2003/54/EC (concerning common rules for the internal market in electricity) by way of Article 307 TEC, or not. Unlike the GA Jääskinen, the Court addressed the issue more comprehensively:
First, the Court recalled its general case-law on the issue (812/79 Burgoa: "the purpose of the first paragraph of Article 307 EC is to make clear, in accordance with the principles of international law, as set out in, inter alia, Article 30(4)(b) of the Vienna Convention on the Law of Treaties of 23 May 1969, that the application of the EC Treaty does not affect the duty of the Member State concerned to respect the rights of non-member countries under a prior agreement and to perform its obligations thereunder", C‑158/91 Levy: "in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations the performance of which may still be required by non-member countries which are parties to it").
Second, the Court recalled the obligation of the Member States to try to eliminate incompatibilities with the EU law (reference is made to the judgment in C‑62/98 Commission v Portugal: "although, in the context of Article 307 EC, the Member States have a choice as to the appropriate steps to be taken to eliminate any incompatibilities existing between a pre-Community convention and the EC Treaty, if a Member State encounters difficulties which make adjustment of an agreement impossible, an obligation to denounce that agreement cannot be excluded").
Finally, the Court recognized that the incompatibility at issue is simply something that Slovakia cannot do anything about (see paragraphs 46 to 50 of the judgment).
Accordingly, the preferential access established by the agreement concerned prevails of the Directive (by way of Article 307.1 TEC).

T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council: enigma unveiled (at least in part)

In 2009, Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products was negotiated under the auspices of the Czech Presidency. A controversial piece of legislation, drafted amidst emotional reactions of the public in a number of the Member States to reports showing that seals are killed under cruel and "inhuman" circumstances (in particular in Canada). The EU legislator's reaction was also extremely strong. It prohibited marketing of seal products altogether, unless they result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence (see Article 3.1 of the Regulation).
The Regulation was attacked by a group of entities, most of them established in Canada. By the order of 6 September 2011, the General Court dismissed the action as inadmissible.(1)

Regulatory act

The General Court starts by summarising that, after the Lisbon Treaty amendments, the fourt paragraph of Article 263 TFEU permits a natural or legal person to attack:
a/ an act adressed to that person,
b/ a legislative or regulatory act of general application which is of direct and individual concern to that person,
c/ against certain acts of general application, namely regulatory acts which are of direct concern to that person and do not entail implementing measures.(2)
The third category is the new locus standi introduced by the Lisbon Treaty. But because the term "regulatory acts" is not defined anywhere in the Treaties, the scope of the term was somewhat unclear. Now we know better.
The General Court summarises it in paragraph 56: ... the meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts.
In the present case, the General Court was quick to conclude that the attacked Regulation is not a "regulatory act", simply because it is a legislative act (for which stricter locus standi conditions continue to apply, see point b) above). In this regard, the General Court dismissed the applicants' argument that a measure should be categorised according to its true nature, not just its form: Although the test for distinguishing between an act of general application and an individual act is whether the act in question is of general application, its categorisation as a legislative act or a regulatory act according to the FEU Treaty is based on the criterion of the procedure, legislative or not, which led to its adoption.

Of direct and individual concern

As a result, the General Court found itself back in the "old" regime under point b), as mentioned above, and had to consider whether the contested Regulation is of (both) direct and individual concern to the applicants.
This is a classic test, so there is no need to dwell upon it, but one point is still interesting. The General Court concluded that most of the applicants are not directly concerned because the Regulation regulates placing on the market and the applicants concern do not engage (directly) in placing the seal products on the market. Paragraph 75 is of particular relevance in this regard:
Consequently, the contested regulation directly affects only the legal situation of those of the applicants who are active in the placing on the market of the European Union of seal products. That regulation does not in any way prohibit seal hunting, which indeed takes place outside the European Union market, or the use or consumption of seal products which are not marketed. Consequently, it should be observed that, while it cannot be precluded that the general prohibition of placing on the market provided for by the contested regulation may have consequences for the business activities of persons intervening upstream or downstream of that placing on the market, the fact remains that such consequences cannot be regarded as resulting directly from that regulation (see, to that effect, order of the General Court in Case T‑40/04 Bonino and Others v Parliament and Council [2005] ECR II‑2685, paragraph 56). Furthermore, as regards the possible economic consequences of that prohibition, it must be borne in mind that, according the case-law, those consequences do not affect the applicants’ legal situation, but only their factual situation (see, to that effect, Joined Cases T-172/98 and T-175/98 to T-177/98 Salamander and Others v Parliament and Council [2000] ECR II-2487, paragraph 62).

(1) The Regulation - together with Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 - is also under attack in T-526/06 Inuit Tapiriit Kanatami and Others v Commission. That procedure is still pending.
(2) See paragraph 45 of the judgment.

C-237/11 and C-238/11 France v. Parliament: moving in circles

Everybody is familiar with this: for one week in a month, the European Parliament has the habit to move everything from Brussels in Belgium to Strasbourg in France and sit in a session there. Ironically enough, the European Parliament itself is not happy about this. Yes, the European Parliament's official seat is Strasbourg, but all the EU institutions sit in Brussels and the eternal travelling is annoying and costs money.
On 9 March 2011, the European Parliament decided to do at least something about it. While determing the calendars of session periods in 2012 and in 2013, the European Parliament laid down that two of the twelve periods of monthly plenary sessions (which must take place in Strasbourg every year) will be shortened from 4 to 2 days and will take place during the same week of October. As a result, this decision scraps one "red week"* from the European Parliaments calendar.

No chance

Looking at the judgment in C-345/95 France v. Parliament, one cannot but conclude that France will inevitably succeed with its actions. The situation was slightly different in that case, but in reality there was hardly any difference. What the European Parliament did back in the 90s was simply reduce the number of Strasbourg sessions from 12 to 11. In this case, the number of sessions remains untouched, the only problem: two sessions will not last four but two days and will take place in one week (meaning that the two sessions together will last.. four days). There is therefore no reason to doubt the applicability of the Court's reasoning in C-345/95 also to this case.

In C-345/95, the Court said:
23 By adopting the Edinburgh Decision, therefore, the Governments of the Member States have now discharged their obligation under Articles 77 of the ECSC Treaty, 216 of the EC Treaty and 189 of the EAEC Treaty by definitively locating the seat of the Parliament in Strasbourg, whilst maintaining several places of work for that institution.
24 Given a plurality of working places, the exercise of that competence involved not only the obligation to determine the location of the seat of the Parliament but also the implied power to give precision to that term by indicating the activities which must take place there.
25 The intention of the Governments of the Member States was therefore to provide that the seat of the Parliament, in Strasbourg, be the principal place where it meets in ordinary plenary sitting, and to that end to specify the mandatory number of part-sessions which must be held there.
26 By indicating that the Parliament must hold monthly plenary part-sessions, the Governments of the Member States endorsed its practice of meeting in principle every month in Strasbourg, as indeed is provided by Rule 10 of its Rules of Procedure.
27 In fact, however, the Parliament does not hold any ordinary plenary part-sessions in August or, during election years, in June. In the years during which it has held a total of 12 plenary part-sessions in Strasbourg, two have been scheduled in October. That practice is not, in itself, in issue.
28 Furthermore, by specifying that the budget session is to be held in Strasbourg, the Governments of the Member States intended that the Parliament exercise its budgetary powers in plenary sitting, in accordance with Article 203 of the EC Treaty, during one of the ordinary plenary part-sessions held at the seat of the institution.
29 The Edinburgh Decision must thus be interpreted as defining the seat of the Parliament as the place where 12 ordinary plenary part-sessions must take place on a regular basis, including those during which the Parliament is to exercise the budgetary powers conferred upon it by the Treaty. Additional plenary part-sessions cannot therefore be scheduled for any other place of work unless the Parliament holds the 12 ordinary plenary part-sessions in Strasbourg, where it has its seat.
30 Contrary to the Parliament's contention, the Governments of the Member States have not, by so defining its seat, encroached upon the power of the Parliament to determine its own internal organization, conferred by Articles 25 of the ECSC Treaty, 142 of the EC Treaty and 112 of the EAEC Treaty.
...
33 That finding is not called into question by the need for the Parliament to refrain from holding ordinary plenary part-sessions during electoral campaigns, thus derogating every five years from its obligation to hold 12 ordinary plenary part-sessions at the seat of the institution. That derogation is justified for reasons inherent in the organization of elections for new representatives.
34 It follows that the contested vote is incompatible with the Edinburgh Decision to the extent that it provides for 11 ordinary plenary part-sessions in Strasbourg in 1996.

* In the calendar of the European Parliament, different weeks are marked in colours. The red colour stands for plenary sessions.
** Decision of 12 December 1992 by common agreement the representatives of the Governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communities, on the basis of Articles 216 of the EEC Treaty, 77 of the ECSC Treaty and 189 of the EAEC Treaty (OJ 1992 C 341, p. 1)

C-322/10 and C-422/10 Medeva: beyond the words

The Court of Justice has recently been submitted a serious of cases concerning the legislation on supplementary protection certificates for medicinal products (see also C-518/10 Yeda Research and Development Company and Aventis Holdings, C-630/10 University of Queensland and CSL, C-6/11 Daiichi Sankyo, C-130/11 Neurim Pharmaceuticals).
A unique opportunity for the Court of Justice to sort out the field, apparently marked with differences in interpretation and application throughout the Union.

Legal backround

The key piece of legislation is Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products*.
The logic behind the legislation is quite simple: as it takes time for a patented medicinal product to be put on the market (the time was estimated at average 12 years in the original Commission proposal**), the patent protection of the medicinal products is dramatically reduced (from 20 to 8 years). Since this would have a negative effect on R&D in the field, the inventors should be compensated by allowing them to prolong the patent protection so that they can benefit from it effectively for the full period (starting from the marketing authorisation). This is to be done through the grant of the so-called supplementary protection certificates (SPC).
The (cumulative) conditions for obtaining an SPC are set out in Article 3 of the Regulation. It reads as follows:
A certificate shall be granted if, in the Member State in which the application referred to in Article 7 is submitted and at the date of that application:
(a) the product is protected by a basic patent in force;
(b) a valid authorisation to place the product on the market as a medicinal product has been granted in accordance with Directive 2001/83/EC or Directive 2001/82/EC, as appropriate;
(c) the product has not already been the subject of a certificate;
(d) the authorisation referred to in point (b) is the first authorisation to place the product on the market as a medicinal product.

The issue

In Medeva, as in the other cases, the questions arise from the reality of things. It's quite simple, in the real world, the patented medicinal product (or active substance) is rarely put on the market (years later) as such, but in a modified version, many times in combination with other (active) substances. One thing is the requirements to be fulfilled to obtain a patent, another thing is the reality of the market. Can an SPC be granted in a situation like this? That is the fundamental question behind the preliminary questions submitted to the Court.

Solution offered by GA Trstenjak


GA Trstenjak, in her opinion published on 13 July 2011, started by examining the wording of the Regulation and found that as a general rule, on a literal interpretation of Regulation No 469/2009, there can be no question of a supplementary protection certificate being granted for a multi‑disease vaccine in which the combination of active ingredients is only partly patented (paragraph 74).

She derived this (provisional) conclusion in particular from the wording of Article 1(b) of the Regulation (the definition of the term "product"): Viewed in terms of the wording, ‘an’ active ingredient, which together with other active ingredients is only part of the combination of active ingredients of a medicinal product, therefore does not constitute a product within the meaning of Article 1(b) of Regulation No 469/2009 ... It actually means that, in the case of a multi‑disease vaccine, only the combination of all the active ingredients constitutes the product within the meaning of Regulation No 469/2009. According to the wording of Article 1(b), on the other hand, a single active ingredient of a multi‑disease vaccine cannot be subsumed under the concept of product in Regulation No 469/2009 (paragraphs 61 and 62).

GA Trstenjak was, however, quick to conclude that such an interpretation would not be compatible with the objectives of the Regulation***. If no supplementary protection certificates could be granted in respect of medicinal products with multiple active ingredients only part of which is the subject‑matter of a patent, that would actually have the result that, in all spheres in which the manufacturers of medicinal products found themselves obliged, for legal or practical reasons, to place patented active ingredients on the market in combination with other active ingredients in one medicinal product, an extension of the term of protection of the patented active ingredients in accordance with the requirements of Regulation No 469/2009 would not be possible (paragraph 80).

Therefore it appears (...) to be necessary to interpret the definition of ‘product’ in Article 1(b) of Regulation No 469/2009 teleologically to the effect that the product within the meaning of the regulation includes not only ‘the’ active ingredient or ‘the’ combination of active ingredients, but also ‘an’ active ingredient or ‘a’ combination of active ingredients of a medicinal product. Such an interpretation also brings within the scope of Regulation No 469/2009 medicinal products in which the combination of active ingredients is only partly the subject‑matter of a patent. (paragraphs 89 and 90).

Here, GA Trstenjak deals with the risk that a manufacturer of medicinal products could develop a number of medicinal products with different combinations of active ingredients on the basis of one patented active ingredient or combination of active ingredients and place those products on the market with a time lag in some cases, for the purpose of optimising the protection under the certificate (paragraph 96) and offers the following solution: In order to prevent such an undermining of the system of limitation of the duration of the protection conferred by a certificate provided for in Regulation No 469/2009, Article 3(a) must be interpreted as meaning that the product within the meaning of that provision is the same as the product which forms the subject‑matter of the basic patent within the meaning of Article 1(c).**** In fact, having particular regard to Article 3(c) of Regulation No 469/2009, according to which only one supplementary protection certificate per product may be granted in the Member State in which the application is submitted, that interpretation of Article 3(a) has the effect, on the other hand, that, for each active ingredient or combination of active ingredients which is the subject‑matter of a patent, only one supplementary protection certificate for the extension of that patent’s term of protection may be granted, regardless of the number of combinations of active ingredients in which the patented active ingredient or combination of active ingredients has been used. This makes it impossible for manufacturers of medicinal products to optimise the term of protection under the patent and certificate in relation to an active ingredient by placing the patented active ingredient on the market in a number of combinations of active ingredients as different medicinal products, with a time lag in some cases (paragraph 100).

Such a conclusion may seem to be particularly harsh in cases where a patent relates to several active ingredients and also to one or more combinations of those active ingredients, because according to the Court’s case-law, only one supplementary protection certificate may be granted for each basic patent (C‑181/95 Biogen). According to GA Trstenjak, the proprietor of such a patent will have to make a choice: he must decide in respect of which active ingredient or combination of active ingredients he is going to apply for a supplementary protection certificate on the basis of the basic patent. The grant of a first supplementary protection certificate in respect of one active ingredient or combination of active ingredients in reliance on that patent then precludes the grant of further supplementary protection certificates in reliance on the same basic patent (paragraph 103). The advice of GA Trstenjak is to obtain an SPC for the "central" active ingredient or combination of active ingredients: By relating his SPC application to the central active ingredient or combination of active ingredients which is also contained in the medicinal products to be placed on the market in the future, the proprietor of a patent covering a number of active ingredients and also one or more combinations of those active ingredients can therefore ensure that those subsequent medicinal products also enjoy – within the limits of the basic patent and during the term of the supplementary protection certificate – protection against unauthorised production and distribution (paragraph 109).*****

Summary

An example could be the appropriate way to summarise the solution offered by GA Trstenjak. This is how it works (or should work):
1/ A basic patent is obtained for A, B and C (separately, not in combination).
2/ A marketing authorisation is granted for a medicinal product containing A and F.
3/ An SPC can be granted (its scope will be limited to A, but /normally, it will depend on the legislation in the particular Member State/ the marketed medicinal product will also be protected /indirectly, by way of the so-called contributory infringement/).
4/ No other SPC can be granted on the basis of the basic patent.
It is as simple as that.
Good solution, I think, that the Court should certainly follow.

* The Regulation codified the preceeding Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products
** COM(90) 101 final – SYN 255, 11 April 1990
*** The objectives of the Regulation (and the reality of things) are exhaustively described in paragraphs 75 to 87. Paragraph 77 warrant a closer attention: Those rules are intended to achieve a balance between the various interests at stake in the pharmaceutical sector. Those interests include, on the one hand, the interests of the undertakings and institutions, some of which pursue very cost‑intensive research in the pharmaceutical sector and therefore favour an extension of the term of protection for their inventions in order to be able to recoup the investment costs. On the other hand, there are the interests of the producers of generic medicines who, as a consequence of the extension of the term of protection of the active ingredients under patent protection, are precluded from producing and marketing generic medicines. It is also relevant in this connection that, in general, the marketing of generic medicinal products has the effect of lowering the prices of the relevant medicinal products. Against that background, the interests of patients lie between the interests of the undertakings and institutions conducting research and those of the producers of generic medicines. That is because patients have an interest, on the one hand, in the development of new active ingredients for medicinal products, but, on the other, they also have an interest in those products then being offered for sale as cheaply as possible. The same applies to State public health systems in general which, in addition, have a particular interest in preventing old active ingredients from being brought onto the market in slightly modified form under the protection of certificates but without genuine innovation and thereby artificially driving up expenditure in the health sector.
**** This is another fundamental question in the cases at hand: shall a product be deemed to be protected by the basic patent also where it is not a subject-matter of the patent itself, but is protected indirectly (by way of the notion of contributory infringement of the patent)? GA Trstenjak's answer is clear: NO!
***** Frankly, I'm not sure of this. If the basic patent covers active ingredients A, B and C (separately, not in combination), what exactly is the "central" active ingredient here? In my view, whatever choice you make, you "lose" some of the scope of the basic patent for the purposes of an SPC. An example: if an SPC is granted on the basis of a market authorisation for A+F (for instance), how can any protection be derived from such an SPC in relation to B and C? But that is the price to pay, I guess, as there is no better solution to this (to say that an SPC prolongs the validity of the patent as a whole would stretch things to the opposite extreme). See inter alia paragraphs 106 a 107 on the issue of the scope of an SPC (articles 4 and 5 of the Regulation).

C-104/10 Kelly: it is not there, yet it might be there

I think you are guilty of discrimination and I think you should prove it...

Background

Mr Kelly was refused his application to be admitted to a course entitled ‘Master’s degree in Social Science (Social Worker) mode A’. He screamed discrimination, claiming that he was better qualified than the least-qualified female candidate to be offered a place. In this context, Mr Kelly requested copies of the retained applications, copies of the documents appended to or included with those applications, and copies of the ‘scoring sheets’ of the candidates whose application forms had been retained.

The question was: does Mr Kelly a right of access to those documents?

The judgment

The referring court identified three possible sources of the right:
- Art. 4 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions,
- Article 1(3) of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 76/207,
- Article 4(1) of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex.

The Court did not find the right in any of the three pieces of legislation, but added that "it cannot be ruled out that a refusal of disclosure by the defendant, in the context of establishing such facts, could risk compromising the achievement of the objective pursued by that directive and thus depriving Article 4(1) thereof (Council Directive 97/80/EC)  in particular of its effectiveness. It is for the national court to ascertain whether that is the case in the main proceedings".

Art. 4(1) of Council Directive 97/80/EC reads as follows: "Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment."

The following three paragraphs in the judgment are crucial in this regard.

35 In that regard, it must be borne in mind that Member States may not apply rules which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness (see Case C‑61/11 PPU El Dridi [2011] ECR I‑0000, paragraph 55).
36 According to the wording of the second and third subparagraphs respectively of Article 4(3) TEU, the Member States inter alia ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ and ‘shall … refrain from any measure which could jeopardise the attainment of the Union’s objectives’, including those pursued by directives (see El Dridi, paragraph 56).
37 In the present case, it is, however, apparent from the decision for reference that, although the President of the Circuit Court refused the disclosure application, UCD offered to provide Mr Kelly with part of the information requested, which he does not dispute.

 

 

As for Art. 4 of Council Directive 76/207/EEC and Art. 1(3) of Directive 2002/73/EC, the Court reffered to the Member States' freedom of choice instead and found nothing similar to what the Court found above.

46 Those provisions seek to implement the application of the principle of equal treatment as regards access to training but, in accordance with the third paragraph of Article 288 TFEU, leave it, as to form and methods, to the national authorities to take the necessary measures to ensure that ‘any laws, regulations and administrative provisions’ contrary to that principle are abolished.
47 Thus, it is not possible to derive from those provisions a specific obligation to grant an applicant for vocational training access to information concerning the qualifications of other applicants for that course.

In any case, if there is a right of access to documents, there are obviously limits on that right:

55 In assessing such facts, national courts or other competent bodies must take into account the rules governing confidentiality which follow from European Union legal acts, such as Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11). The protection of personal data is also provided for in Article 8 of the Charter of Fundamental Rights of the European Union.

C-457/09 Chartry: I can't tell you, but the answer is NO

In Chartry, the Court was faced with a potentially interesting question: is it okay for the national legal order, in the first place, to oblige the national courts, if faced with an issue of constitutionality, to always refer the question first to the national Constitutional Court, inluding where the issue also raises an issue of compatibility with the EU law, and, in the second place, to request the national courts to respect the decision of the Constitutional Court.

Well ...

The problem was that the case in the background of this preliminary reference had otherwise no EU-law element whatsoever. Paragraph 25 of the order: "... Le litige au principal, qui oppose un ressortissant belge à l’État belge à propos de la taxation d’activités exercées sur le territoire de cet État membre, ne présente aucun élément de rattachement à l’une quelconque des situations envisagées par les dispositions du traité relatives à la libre circulation des personnes, des services ou des capitaux. En outre, ledit litige ne porte pas sur l’application de mesures nationales par lesquelles l’État membre concerné mettrait en œuvre le droit de l’Union.".

The Court therefore declared itself incompetent to answer the preliminary questions submitted by the referring court. This conclusion is further elaborated in paragraphs 21 to 25:

21 ... il convient de rappeler également que, saisie au titre de l’article 234 CE, la Cour est compétente pour statuer sur l’interprétation du traité CE ainsi que sur la validité et l’interprétation des actes pris par les institutions de l’Union européenne. Dans ce cadre, la compétence de la Cour est limitée à l’examen des seules dispositions du droit de l’Union (voir, notamment, ordonnances du 16 janvier 2008, Polier, C‑361/07, point 9, ainsi que du 12 novembre 2010, Asparuhov Estov e.a., C‑339/10, non encore publiée au Recueil, point 11).

22 S’agissant des exigences découlant de la protection des droits fondamentaux, il est de jurisprudence constante qu’elles lient les États membres dans tous les cas où ils sont appelés à appliquer le droit de l’Union (voir ordonnance Asparuhov Estov e.a., précitée, point 13).

23 De même, l’article 51, paragraphe 1, de la charte des droits fondamentaux de l’Union européenne (ci-après la «charte») énonce que les dispositions de celle-ci s’adressent «aux États membres uniquement lorsqu’ils mettent en œuvre le droit de l’Union».

24 Au demeurant, cette limitation n’a pas été modifiée par l’entrée en vigueur, le 1er décembre 2009, du traité de Lisbonne, depuis laquelle, en vertu du nouvel article 6, paragraphe 1, UE, la charte a la même valeur juridique que les traités. Cet article précise en effet que les dispositions de la charte n’étendent en aucune manière les compétences de l’Union telles que définies dans les traités.

25 Or, si le droit à un recours effectif, garanti par l’article 6, paragraphe 1, de la CEDH, auquel se réfère la juridiction de renvoi, constitue un principe général du droit de l’Union (voir, notamment, arrêt du 16 juillet 2009, Der Grüne Punkt – Duales System Deutschland/Commission, C‑385/07 P, Rec. p. I‑6155, points 177 et 178) et a été réaffirmé à l’article 47 de la charte, il n’en demeure pas moins que la décision de renvoi ne contient aucun élément concret permettant de considérer que l’objet du litige au principal présente un rattachement au droit de l’Union.

... no, it is not okay

The above-mentioned, however, did not stop the Court from expressing its clear opinion on the issue despite its lack of competence. The Court said:

19 ... il convient de rappeler que, selon une jurisprudence constante de la Cour, afin d’assurer la primauté du droit de l’Union, le fonctionnement du système de coopération entre la Cour de justice et les juridictions nationales instauré par l’article 234 CE nécessite que le juge national soit libre de saisir, à tout moment de la procédure qu’il juge approprié, la Cour de justice de toute question qu’il juge nécessaire (voir arrêt du 22 juin 2010, Melki et Abdeli, C‑188/10 et C‑189/10, non encore publié au Recueil, point 52).

20 Plus particulièrement, la Cour a jugé que l’article 234 CE s’oppose à une législation d’un État membre qui instaure une procédure incidente de contrôle de constitutionnalité des lois nationales, pour autant que le caractère prioritaire de cette procédure a pour conséquence d’empêcher, tant avant la transmission d’une question de constitutionnalité à la juridiction nationale chargée d’exercer le contrôle de constitutionnalité des lois que, le cas échéant, après la décision de cette juridiction sur ladite question, toutes les autres juridictions nationales d’exercer leur faculté ou de satisfaire à leur obligation de saisir la Cour de questions préjudicielles (arrêt Melki et Abdeli, précité, point 57).

In sum, the French legislation at issue is not okay.

By the way

There is one curious element in the decision of the Court. It may not be important, but who knows...

In paragraphs 22 and 23 of the order, the limitation on the applicability of the EU rules on the protection of fundamental rights is defined using two different words. In paragraph 22: "lient les États membres dans tous les cas où ils sont appelés à appliquer le droit de l’Union". In paragraph 23: "s’adressent «aux États membres uniquement lorsqu’ils mettent en œuvre le droit de l’Union»". There is a similar discrepancy in other language versions (German: "Bei der Anwendung des Unionsrechts" x "bei der Durchführung des Rechts der Union", Italian: "in tutti i casi in cui sono chiamati ad applicare il diritto dell’Unione" x "si rivolgono «agli Stati membri esclusivamente nell’attuazione del diritto dell’Unione».").

Two different words, yet the same meaning? Hopefully... (After all, other language versions make use of the same term in both cases; Swedish: "när de tillämpar unionsrätten" x "när dessa tillämpar unionsrätten", Spanish: "en todos los casos en que deben aplicar el Derecho de la Unión" x "dirigidas «a los Estados miembros únicamente cuando apliquen el Derecho de la Unión»", Polish: "gdy stosują one prawo Unii" x "w zakresie, w jakim stosują one prawo Unii".)

C-399/09 Landtova: Peace?

The much-awaited judgment (at least in the Czech Republic) in the Landtova case is out, but surprisingly, things have been rather quiet this far. And peaceful...

Background
When Czechoslovakia fell apart by the end of 1992 and was succeeded by the Czech Republic and Slovakia, the two countries decided (in a bilateral agreement) to take account of the "federation time" for the purposed of counting the pension in the following way: where, by the end of 1992, a person worked for an employer based in the Czech Republic, the "federation time" was deemed to be "Czech time" and vice versa. Landtova is a Czech national who, by the end of 1992, worked for an employer based in Slovakia, meaning that her "federation time" is considered to be "Slovak time". As a result, her pension is lower than it would have been if she had benefited from the "Czech time".

When faced with applicants like Landtova, the Constitutional Court ruled that this was contrary to the Constitution (the Charter of Fundamental Rights and Freedoms, to be more precise) and required that such applicants should be treated as if they worked for an employer based in the Czech Republic by the end of 1992, and there pensions should accordingly be increased to the appropriate level (so that the Czechs with Slovak-based employers are not discriminated against as opposed to the Czechs with Czech-based employers).
The Supreme Administrative Court repeatedly disagreed with the Constitutional Court and, finally, sent the case to Luxembourg, taking the view that the rule "created" by the Counstitutional Court runs counter to Regulation no 1408/71 and to the ban on discrimination.

Judgment
The Court ruled just as it was advised to rule by GA Cruz Villalón in his opinion of 3 March 2011. In fact, the Court did so pretty much in a "copy and paste" fashion. In short, the Court said:
a) the supplementary benefit introduced by the Czech Republic's Constitutional Court is not contrary to Regulation No 1408/71, because "what is at issue is not the award of a parallel Czech old age benefit, nor one and the same period of insurance being taken into account twice, but merely the elimination of an objectively established difference between benefits from different sources" (paragraph 38 of the judgment);
b) the conditions for acquiring the supplementary benefit (Czech nationality, residence in the Czech republic) are discriminatory and precluded as such by the combined provisions of Article 3(1) and Article 10 of Regulation No 1408/71.
Like the Advocate-General, the Court adds in this regard that "where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category, the latter arrangements, for want of the correct application of EU law, being the only valid point of reference remaining" (paragraph 51 of the judgment). As far as Ms Landtová is concerned, she belongs to the person within the advantaged category and the Court held in this regard that "there is no provision of EU law which requires that a category of persons who already benefit from supplementary social protection, such as that at issue in the main proceedings, should be deprived of it" (paragraph 53 of the judgment). In other words, the referring court cannot rely on the EU law to deprive Ms Landtová of the supplementary benefit and therefore - in the absence of any other ground capable of overriding the force of the Constitutional Court's case-law - the referring court must give it to her, as required by the case-law of the Constitutional Court.

Follow-up

The good news is that, as a result, a So Lange clash between the Luxembourg Court and the Czech Republic's Constitutional Court will most probably be avoided. Landtová (and other people in her situation) will (most certainly) be given her supplementary benefit and, consequently, the case will never reach the Constitutional Court. Its case-law, though declared discriminatory by the Court in Luxembourg, may thus last forever....
The bad news is that the Court's ruling is the worst result the Czech government could get. What the Court says is: you can provide people with the supplementary benefit, but if you do, you have to give it not only to Czech nationals (residing in the Czech Republic) but to any national of any Member State (including Slovakia). In theory, this could have dramatic consequences for the state budget of the Czech Republic (but it depends on how many nationals of other Member States actually are in the situation such as to be affected by the rule - for one thing, they must have worked in former Czechoslovakia - and on how many of them will actually request the supplementary benefit).
The winner is...

Notaries: end of the nationality condition

In the series of judgments, delivered on 24 May 2011(1), the Court of Justice finally provided the answer to the question: is the condition of nationality applied in many Member States of the European Union as to the profession of notaries in line with the European Union law?

The answer of the Court

The Court agreed with the Commission (and the United Kingdom who intervened in support of the Commission(2) and ruled that no element in the profession of the notaries comes within the scope of the "exercise of official authority" within the meaning of the first paragraph of Article 45 TEC (Article 51 TFEU), as no such element is directly and specifically connected with the exercise of official authority.
In short, the Court concluded that the notaries do act in pursuit of an objective in the public interest, however, that is not, in itself, sufficient for a particular activity to be regarded as directly and specifically connected with the exercise of official authority. Could be... (for more detailed understanding on how the Court approach each element in the profession of the notaries in each Member States, see the judgment themselves).

End of the story?

Probably not. Apart from the condition of nationality, access to the profession of the notaries is subject to other conditions in the Member States and those were not the subject-matter here (which, in addition, was limited to the freedom of establishment)(3).
Yet, the Court was not completely silent in this regard. In one paragraph (not more), the Court pointed out that "the fact that notarial activities pursue objectives in the public interest, in particular to guarantee the lawfulness and legal certainty of documents entered into by individuals, constitutes an overriding reason in the public interest capable of justifying restrictions of Article 43 EC deriving from the particular features of the activities of notaries, such as the restrictions which derive from the procedures by which they are appointed, the limitation of their numbers and their territorial jurisdiction, or the rules governing their remuneration, independence, disqualification from other offices and protection against removal, provided that those restrictions enable those objectives to be attained and are necessary for that purpose."(4)
In other wors, the Court indicates that the other conditions of access to the profession, although constituting a restriction of Article 43 TEC (Article 49 TFEU), could be justified. But this not a definitive answer. The other conditions must be proportionate, the Court says, but are they proportionate? As this was not the subject-matter of the cases at hand, the Court said nothing in this regard and the question thus remains unanswered.
The story might therefore continue, in particular having regard to the fact that, even after the abolition of the nationality condition, other requirements will continue to make it difficult (but not impossible any longer, at least theoretically) for foreigners to have access to the profession.

Recognition of professional qualifications


In the cases at hand, the Commission also claimed that the Member States concerned failed to transpose the Directive 89/48 (now Directive 2005/36) with respect to the profession of notary. The Court rejected this head of claim and based itself on rather interesting reasons. The Court found, simply, that the Directive is unclear. Therefore, it concluded: "In view of the particular circumstances of the legislative procedure and the situation of uncertainty which resulted, as may be seen from the legislative context described above, it does not appear possible to conclude that, at the end of the period prescribed in the reasoned opinion, there existed a sufficiently clear obligation for the Member States to transpose Directive 89/48 with respect to the profession of notary."(5)

(1) The judgments concerned Belgium (C-47/08), France (C-50/08), Luxembourg (C-51/08), Portugal (C-52/08; however, this case did not involve the condition of nationality), Austria (C-53/08), Germany (C-54/08) and Greece (C-61/08). In addition, the Commission pursues infringement proceedings against all the so-called new Member States, except for Cyprus and Estonia (that abolished the nationality condition in June 2008, following the example of Spain and Italy; see the European Commission press release IP/09/152)
(2) http://www.lawgazette.co.uk/news/european-court-opens-access-notary-profession
(3) See paragraphs 74 to 76 of the judgment against Luxembourg, for instance: "This head of claim thus concerns solely the nationality condition laid down by the Luxembourg legislation at issue for access to that profession, from the point of view of Article 43. Accordingly, it does not relate to the status and organisation of notaries in the Luxembourg legal system, nor to the conditions of access, other than that of nationality, to the profession of notary in that Member State. Moreover, as the Commission stated at the hearing, the first head of claim does not concern the application of the provisions of the EC Treaty on the freedom to provide services. Nor does it relate to the application of the Treaty provisions on freedom of movement for workers."
(4) Paragraph 97 in the judgment against Luxembourg (other judgments contain similar paragraphs).
(5) Paragraph 143 in the judgment against Luxembourg.

T-233/09 Access Info Europe v. Council: too much transparency?

The General Court's judgment was delivered on 22 March 2011, but the story is far from over, as the Council is likely to appeal to the Court of Justice.

The story

The core issue is quite simple: Access Info Europe, organisation based in Spain, requested access to a document of the Information Working Party of the Council. The document contained drafting proposals (or rather suggestions) presented by some delegations in order to "feed" the debate within the Working Party (ironically enough, the legislative proposal at issue was the proposal for a Regulation amending Regulation No 1409/2001 regarding public access to European Parliament, Council and Commission documents, i.e. the Regulation that the Council applied when dealing with the request concerned). The Council granted access to the document, excluding (nothing but) the identity of the delegations who submitted the proposals (in this regard, the Council referred to Article 4.3 of the Regulation No 1409/2001 that reads inter alia: "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure"). Access Info Europe took that decision to the General Court and the General Court ruled that also the identity of the delegations should have been disclosed.

Where does transparency end?

The question that one might ask oneself (looking at the facts described above) is: wasn't the Council already very generous when it did not hesitate to disclose the full text of the proposals discussed within the Working Party? And more importantly: why should the identity of the authors of those text be necessary?
Clearly, transparency is an important principle of democracy. It serves as an instrument of control the public can excercise in relation to the functioning of the institutions of a State (or, as in this case, a state-like entity, i.e. the European Union). In my view, the Council's approach was fully in line with this: the public was given access to the documents discussed within that institution and thus received all the information necessary for it to understand in what direction the debate is moving and to try and influence the Council (or a Member State of their choice, or the Commission, or a Member of the European Parliament...) to alter that direction. Yes, if the public also knew who is behind a proposal, their pressure could be targeted better (they could go directly to the bad guy or even "hang" the bad guy publicly). But is that really necessary? And would that be a democratic debate? The democratic debate should primarily center around the arguments and should not focus on who puts the argument on the table (which might easly turn into an emotional war in which reasonable discussion is set aside).
And one more thing: the eventual author of the proposed legislative act will be the Council (together with the European Parliament). In other words, the "target" is known: the Council. What more do you need?

Side effects of transparency

It should also pointed out that many examples show that transparency is not always ideal. Regarding the infringments of the EU law, for instance, the European Commission sometimes takes advantage of the press in order to extert more pressure on the Member State concerned. The result: under the pressure, the Member State, although equipped with solid arguments, will many times give in and do what the Commission wants. Yet, the "objective truth" might sometimes be elsewhere.

C-365/10 Commission v. Slovenia: in memoriam

Are the infringements procedures efficient? In this particular case, one may wonder.

The Commission requested the Court to determine that "en dépassant pendant plusieurs années consécutives les valeurs limites applicables aux concentrations annuelles et journalières de PM₁₀ dans l’air ambiant, la République de Slovénie a manqué aux obligations qui lui incombent en vertu de l’article 5, paragraphe 1, de la directive 1999/30/CE du Conseil, du 22 avril 1999, relative à la fixation de valeurs limites pour l’anhydride sulfureux, le dioxyde d’azote et les oxydes d’azote, les particules et le plomb dans l’air ambiant (JO L 163, p. 41), qui figurent depuis le 11 juin 2010 à l’article 13, paragraphe 1, de la directive 2008/50/CE du Parlement européen et du Conseil, du 21 mai 2008, concernant la qualité de l’air ambiant et un air pur pour l’Europe".

The Court of Justice agreed, but only to a limited degree. Referring to its judgment in C-33/04 Comission v. Luxembourg(1), the Court narrowed down the subject-matter of the action the period of 2005 to 2007:
20 À cet égard, il ressort de la jurisprudence de la Cour que l’objet du recours ne saurait aller au-delà de ce qui a été défini dans la lettre de mise en demeure (voir, en ce sens, arrêt du 8 décembre 2005, Commission/Luxembourg, C-33/04, Rec. p. I-10629, points 40 et 41).
21 Or, en l’espèce, il ressort de la lettre de mise en demeure que le manquement reproché couvre la période allant de l’année 2005 à l’année 2007. Bien que la République de Slovénie ait envoyé, avant la réception de l’avis motivé, le rapport relatif à l’année 2008, dont il découle que les valeurs limites pour les particules PM10 ont encore été dépassées dans plusieurs zones, ni l’avis motivé ni la requête ne contiennent d’indications permettant de déduire que la Commission souhaitait étendre l’objet du manquement jusqu’à l’année 2008.
22 Par conséquent, il n’existe pas d’indications concluantes qui puissent amener la Cour à définir l’objet du recours au-delà de ce qui a été précisé dans la lettre de mise en demeure.

In other words: in the year of 2011, the Court of Justice determined that Slovenia breached Council Directive 1999/30/EC back in 2005 to 2007.

So what?

(1) The relevant part of the C-33/04 judgment reads as follows:
40 As regards Directive 98/10, in the reasoned opinion of 11 July 2003, the Commission complains that the Grand Duchy of Luxembourg failed to fulfil its obligations under Article 18(1) and (2) of that directive, without specifying the reference period. In that reasoned opinion, it was stated inter alia that ‘to date, no verification of compliance has taken place’. In its application, the Commission mentions the same complaint, again without referring to the period for which it criticises Luxembourg for having failed to fulfil its obligations under the provisions of that article.
41 It should nevertheless be noted that the statement of complaints in the Commission’s reasoned opinion and application does not lead to the conclusion that the alleged failure to fulfil obligations covers the entire period from 1998 – the year in which Directive 98/10 entered into force – to 2002 – the last year before the reasoned opinion was issued. It is in fact clear from the pre-litigation procedure and particularly from the letter of formal notice of 21 March 2002 that the failure to fulfil obligations complained of concerns essentially the year 2000. In those circumstances, and in the absence of other relevant indicia, the subject‑matter of the action concerning Directive 98/10 cannot go beyond the scope of what was stated in the letter of formal notice.

T-33/09 Portugal v. Commission: the prison break

Is that so easy for a Member State to escape penalty payments under Art. 260 TFEU (ex Art. 228 TEC)? All you have to do is repeal the incompatible legislation and replace it with another legislation and that stops the penalty payments even if that new legislation is (considered) incompatible with the EU law? That would seem to be the conclusion offered by the General Court in T-33/09.

The story

On 14 October 2004 (C-275/03), the Court of Justice found Portugal in breach of Article 1(1) and Article 2(1)(c) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts "by failing to repeal Decree-Law No 48 051 of 21 November 1967, making the award of damages to persons harmed by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud".
On 10 January 2008 (C-70/06), the same Court, now dealing with the matter under Article 228 TEC (now Article 260 TFEU), found that "on the date of expiry of the period laid down in the reasoned opinion addressed to it on 13 July 2005, the Portuguese Republic had not yet repealed Decree-Law No 48 051". As a result, Portugal was ordered to pay a penalty payment of EUR 19 392 for every day of delay in implementing the measures necessary to comply with the 2004 judgment, from the day of delivery of judgment in the present case until the day on which the 2004 judgment is complied with.
Right after the 2008 judgment, Portugal communicated to the Commission Law 67/2007 which repealed repealing Decree-Law No 48 051 and therefore, Portugal claimed, the Portuguese Republic had taken all the measures necessary to comply with the 2004 judgment. The Commission, for its part, took the view that Law 67/2007 did not constitute an adequate and complete measure to comply with the 2004 judgment. The Commission confirmed this position in Decision C (2008) 7419 final of 25 November 2008 (requiring payment of the penalty payments due pursuant to the judgment of the Court of Justice in Case C-70/06 Commission v Portugal) and Portugal followed by lodging the application at issue requesting annulement of that decision.

The General Court

The General Court, in fact, did annul the decision.

It started by setting out the limits of its jurisdiction:

65 Therefore, the General Court has jurisdiction to hear and determine such an action, in accordance with the provisions of the first subparagraph of Article 225(1) EC.
66 However, in exercising such jurisdiction, the General Court cannot impinge on the exclusive jurisdiction reserved to the Court of Justice under Articles 226 EC and 228 EC.
67 The General Court may not rule, therefore, in the context of an action for annulment based on Article 230 EC and brought against a decision of the Commission relating to the enforcement of a Court of Justice judgment delivered on the basis of Article 228(2) EC, on a question relating to the infringement by the Member State of its obligations under the EC Treaty that has not been previously decided by the Court of Justice.

Turning to the substance, the General Court was quick to conclude that a/ it follows from the operative part of the 2008 judgment that "it was sufficient for the Portuguese Republic to repeal Decree-Law No 48 051 in order to comply with the 2004 judgment and that the penalty payment would be due until that repeal". By claiming that, despite the repeal of the Decree-Law concerned, Law 67/2007 did not constitute adequate compliance with the 2004 judgment, the Commission "failed to take into account the operative part of the 2008 judgment. The contested decision must therefore be annulled".

The General Court rejected the argument of the Commission according to which "the infringement persisted as long as Portuguese law continued to make the award of damages to persons harmed by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud" and therefore the repeal of the Decree-Law concerned was not enough in itself.

The General Court's response was this:

81 Indeed, in the context of enforcing a judgment of the Court of Justice imposing a penalty payment on a Member State, the Commission must be able to assess the measures adopted by the Member State to comply with the judgment of the Court of Justice in order, inter alia, to prevent the Member State which has failed to fulfil its obligations from simply taking measures that, in reality, have the same content as those that were the subject of the judgment of the Court of Justice.
82 However, the exercise of that power of appraisal can prejudice neither the rights – and in particular the procedural rights – of the Member States, as they result from the procedure set out in Article 226 EC, nor the exclusive jurisdiction of the Court of Justice to rule on the compliance of national legislation with Community law.
83 It must be stated that the Court of Justice did not rule on the compliance of Law 67/2007 with Directive 89/665 either in its 2004 judgment or in its 2008 judgment.
84 Furthermore, it is common ground that Law 67/2007 repealed Decree-Law No 48 051 and introduced a new system of liability including substantial modifications to the system that prevailed under Decree-Law No 48 051.
85 The Commission itself acknowledges, in the contested decision, that ‘Law 67/2007 makes it potentially less difficult for tenderers, who have been harmed by an unlawful act of the contracting authority, to obtain damages’ and, in its written pleadings, that the Portuguese legislature did not confine itself to repealing Decree-Law No 48 051, but replaced it with a new system of rules by means of Law 67/2007.
86 Furthermore, it is clear both from the discussions between the parties before the adoption of the contested decision, and from their written pleadings in the context of this case, that they do not agree on whether Law 67/2007 complies with Community law.
87 To decide such an issue would amount to assessing the compatibility of Law No 67/2007 with Community law, which requires a complex legal analysis that goes far beyond a formal review to determine whether or not Decree-Law No 48 051 has been repealed.
88 The rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice under Articles 226 EC to 228 EC (see paragraph 58 above).
89 Consequently, the Commission was not entitled to decide, in the context of the enforcement of the 2008 judgment, that Law 67/2007 did not comply with Community law and then draw conclusions from this for the calculation of the penalty payment determined by the Court of Justice. In so far as it considered that the system of rules introduced by the new law did not constitute a correct transposition of Directive 89/665, the Commission should have initiated the procedure provided for in Article 226 EC.
90 For the sake of completeness, the General Court notes that the argument put forward by the Commission, which consists in claiming that greater discretion should be granted to it in relation to the enforcement of a judgment delivered by the Court of Justice under Article 228(2) EC, would have the consequence that, when a Member State has challenged before the General Court an assessment by the Commission that goes beyond the actual terms of the operative part of the judgment of the Court of Justice, the General Court would, inevitably, be required to make a ruling on the compliance of national legislation with Community law. Such an appraisal falls within the exclusive jurisdiction of the Court of Justice and not that of the General Court.

C-240/09 Lesoochranarske zoskupenie: moving in mysterious ways

Art. 9.3 of the Aarhus Convention(1) is a mystery. Where Art. 9.2 of the Aarhus Convetion already provides the public concerned(2) with a wide access to justice, Art. 9.3 seems to go even further. It reads as follows:
"In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."
What in the world does this mean?

The Lesoochranarske zoskupenie case
The EU Court of Justice was faced with a preliminary reference lodged by Slovakia's Supreme Court. The Supreme Court was in its turned faced with actions lodged by the NGO Lesoochranarske zoskupenie who sought a review of derogations from the protection of inter alia the brown bear, issued by the Ministry of Environment. The question was: can the NGO derived locus standi directly from Art. 9.3 of the Aarhus Convention.
The answer offered by the EU Court of Justice is a mystery.
The Court dealt rather extensively with the issue of a direct effect of a provision of an international treaty, such as the one at hand, but failed to say much on the content of the provision itself. Or, did it?

Direct effect
In this regard, it may be interesting to note that the Court reached the same conclusion as GA Sharpston did in her opinion, but took a completely different route to reach that conclusion. GA Sharpston claimed there can be no issue of direct effect in the Union law, for the Community has not legislated in the sphere covered by Article 9.3 (Directive 2003/35/EC(3) implemented Art. 9.2 and 9.4, but not Art. 9.3 of the Aarhus Convention). The Court, on the other hand, was of the view that the direct effect of a provision such as Art. 9.3 of the Aarhus Convention is not a priori excluded, for "a specific issue which has not yet been subject to EU legislation may fall within the scope of EU law if it relates to a field covered in large measure by it" (para 40). Having said that, the Court went on to reach the same conclusion as GA Sharpston, albeit for different reasons: "It must be held that the provisions of Article 9(3) of the Aarhus Convention do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure." (para 45).
But where there is no direct effect, there can always be "indirect effect". And the Court found it indeed. The way it did so deserves to be quoted in full:
46 However, it must be observed that those provisions, although drafted in broad terms, are intended to ensure effective environmental protection.
47 In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, in this case the Habitats Directive, since the Member States are responsible for ensuring that those rights are effectively protected in each case (see, in particular, Case C‑268/06 Impact [2008] ECR I‑2483, paragraphs 44 and 45).
48 On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (Impact, paragraph 46 and the case-law cited).
49 Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law.
50 It follows that, in so far as concerns a species protected by EU law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention.
51 Therefore, it is for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law (see, to that effect, Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 44, and Impact, paragraph 54).

What next?
It will be interesting to see what Slovakia's Supreme Court will do next. The wish of the EU Court of Justice does not seem to leave any room for doubt, however: GIVE IT TO THEM!

By the way
The question one might ask oneself in the context of the national proceedings at issue is: why did the NGO claim locus standi on the basis of (rather unclear) Art. 9.3, instead of making use of (much clearer) Art. 9.2 of the Aarhus Convetion? Yet another mystery...

(1) UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
(2) Art. 2.5 of the Aarhus Convention defines the term as "the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest." Under Art. 9.2, this public concern shall have access to justice provided they have sufficient interest or (alternatively) maintain impairment of a right. The latter requirement is deemed fulfilled by the NGOs. As a result, the NGOs enjoy a priveleged position: they are automatically considered to be part of the public concerned and they are automatically considered to have the right of access to justice.
(3) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC

C-264/09 Commission v. Slovakia: let bygones be bygones

A surprising judgment looming on the horizon? In C-264/09, GA Jääskinen suggest the Court should dismiss the action lodged by the Commission and that already is a rarity in infringement proceedings. The dispute rests in a conflict between Directive 2003/54/ES (concerning common rules for the internal market in electricity and repealing Directive 96/92/EC) and an agreement on the promotion and reciprocal protection of investments concluded between Slovakia and Switzerland prior to 1 May 2004 (Slovakia's accession to the EU). The issue is a private-law contract concluded in 1997 which provided a Swiss company with priority access to the line (Lemesany-Krosno line from Poland to Slovakia) for a defined and non-renewable period of 16 years.
Does this private-law contract (by virtue of the pre-accession bilateral investment agreement) prevail over Slovakia's obligations under Articles 9 and 20 of Directive 2003/54. GA Jääskinen say: YES! ("such an obligation, concluded before the entry into force of the Treaty, cannot be affected by the Treaty, and as such Slovakia cannot be held to be in breach of its obligations under Articles 9 and 20 of Directive 2003/54", para 108).
The interesting part of his opinion is the one dealing with Art. 307 TEC according to which "the rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty" (para 1), but at the same time "to the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude." (para 2).
GA Jääskinen focused on paragraph 1, as "the Commission has not pleaded Article 307(2) EC". In the field of Art. 307(1) TEC, the GA had no doubts: "there is an international obligation within the meaning of Article 307(1) EC and that Slovakia cannot force SEPS not to follow the terms of the Contract without infringing its obligations under the Investment Protection Agreement" (para 107; the analysis on Art. 307 TEC starts with para 68).
A heavy blow to the Commission and its general (hostile) approach to the issue of pre-accession bilateral investment agreements? Let us wait for the Court.
The funny flipside of the coin is that (as a friend from Slovakia pointed out, talking about the "intra-EU" pre-accession investment agreements) the new Member States might not be that unhappy with the Commission's (hostile) approach, given the result of several arbitration proceedings (which turned out to be rather burdensome for their state budgets). But this, of course, is another story.

C-399/09 Landtová: about it, but without it...

There is a saying that goes back to 1938, the year in which the Munich Pact was concluded. The Pact was signed by Germany, France, the United Kingdom and Italy and resulted in annexation of parts o the territory of Czechoslovakia by Germany. The saying goes: about us, without us! It clearly questions democratic legitimacy of decisions taken by someone to the detriment of someone else without (at least) having heard that someone else.
This seems to be the problem of the Landtová case(1). Ultimately, the "accused" is the case-law of the Czech Republic's Constitutional Court, yet there is no-one in the proceedings who would defend it. The referring court (Supreme Administrative Court of the Czech Republic) itself has doubts and, in fact, used (or abused?) the preliminary reference as a tool to (possibly) strike down a rule established by the Constitutional Court which the referring court has defied for some time. The respondent in the main proceedings is of the same opinion. The Czech Government likewise.
Landtová has the interest in defending the Constitutional Court's case-law, but, looking at the opinion of the GA Villalón, her voice does not seem to be audible.
And the Constitutional Court itself is not party to the proceedings.
About it, without it...

(1) See below a detailed analysis of the opinion of the GA Villalón in the case.

House of Lords on the EU Court of Justice

The Justice and Institutions Sub-Committee of the European Committee of the House of Lords published some interesting paperwork on the functioning of the Court of Justice of the European Union. It is all available here: http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-law-and-institutions-sub-committee-e/publications/

C-567/10 Inter-Environnement Bruxelles and Others: strategic environmental assessment also in case of revocation of a plan?

The Constitutional Court of Belgium sent the following question to Luxembourg(1):
"Must the definition of 'plans and programmes' in Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment be interpreted as excluding from the scope of that directive a procedure for the total or partial repeal of a plan such as that applicable to a 'plan particulier d'affectation du sol' (specific land-use plan), provided for in Articles 58 to 63 of the Code bruxellois de l'Aménagement du Territoire (Brussels Town and Country Planning Code)?"

The answer is not obvious as the SEA Directive(2) does not speak expressly of revocation or repeal of a plan or programme, but does include "any modifications to them" in the definition of the notion(3). This could obviously include a total revocation (after all, that is also a "modification"), and certainly a partial revocation (as that leaves part of the plan or program in force). On the other hand, the idea behind the SEA Directive (and environmental impact assessment in general) is to make sure that before "something" is adopted and put to life, the potential environmental effects of that "something" are assessed so that the "something" is adopted and put to life in a manner that is as environmentally-friendly as possible. If a plan or programme is revoked, nothing is put to life, i.e. there can be no environmental effects.

Or, can there be?

It seems that at least one European court thinks so. In the so-called Cala Homes judgment of 10 November 2010(4), Mr Justice Sales of the UK's High Court of Justice (Queen's Bench Division, Administrative Court) said this (para 62):
All the existing Regional Strategies were made the subject of environmental assessment before they were adopted, no doubt because of the practical impact they would inevitably have by setting part of the framework for decision-making in planning cases. I can see no sound basis for the contention (…) that revocation of Regional Strategies does not equally require at least consideration under Regulation 9 whether similar detailed environmental assessment is required. The revocation of a Regional Strategy may have as profound practical implications for planning decisions as its adoption in the first place.

Let us see what the EU Court of Justice has to say.


(1) The preliminary questions submitted by the Constitutional Court were published in OJ C 63 from 26.02.2011, p.22.
(2) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment.
(3) Článek 2 písm. a).
(4) Case No: CO/8474/2010.

C-399/09 Landtova: Make Love No War!

On 3 March 2011, Advocate General Villalón presented his opinion in C-399/09 Landtova, a highly controversial case in the Czech Republic, as it involves the Supreme Administrative Court revolting against the Constitutional Court (and its establised case-law).

Background

When Czechoslovakia fell apart by the end of 1992 and was succeeded by the Czech Republic and Slovakia, the two countries decided (in a bilateral agreement) to take account of the "federation time" for the purposed of counting the pension in the following way: where, by the end of 1992, a person worked for an employer based in the Czech Republic, the "federation time" was deemed to be "Czech time" and vice versa. Landtova is a Czech national who, by the end of 1992, worked for an employer based in Slovakia, meaning that her "federation time" is considered to be "Slovak time". As a result, her pension is lower than it would have been if she had benefited from the "Czech time".

When faced with applicants like Landtova, the Constitutional Court ruled that this was contrary to the Constitution (the Charter of Fundamental Rights and Freedoms, to be more precise) and required that such applicants should be treated as if they worked for an employer based in the Czech Republic by the end of 1992, and there pensions should accordingly be increased to the appropriate level (so that the Czechs with Slovak-based employers are not discriminated against as opposed to the Czechs with Czech-based employers).

The Supreme Administrative Court repeatedly disagreed with the Constitutional Court and, finally, sent the case to Luxembourg, taking the view that the rule "created" by the Counstitutional Court runs counter to Regulation no 1408/71 and to the ban on discrimination.

Say what I should say

Advocate General (AG) took the view that the rule concerned is not incompatible with Regulation no 1408/71, but is discriminatory.

Regarding Regulation no 1408/71, AG was rather quick to conclude that the rule concered does not interfere with the provisions on how to count a pension of a migrating person (as contained in the Regulation and in the agreement concluded between the Czech Republic and Slovakia in 19992). For a simple reason: the rule concerned comes only after the said provision have been applied.

il convient de noter que le complément auquel peuvent prétendre les ressortissants tchèques résidant dans leur pays n’est pas une prestation calculée à la liquidation de la prestation générale, mais après celle‑ci. En d’autres termes, quiconque bénéficie d’une prestation soumise au règlement n° 1408/71 et à la convention tchéco‑slovaque doit, en premier lieu, s’adresser aux autorités désignées dans cette réglementation et calculer le montant correspondant, conformément aux dispositions pertinentes. La question de l’éventuel droit au complément de prestation, tel qu’il résulte de la jurisprudence de l’Ústavní soud, ne se pose qu’une fois cette opération réalisée. Il s’agit, par conséquent, d’un complément de prestation au sens strict ou, en d’autres termes, d’une révision à la hausse du montant de la prestation, qui n’a pas pour but d’altérer la méthode de calcul, mais la situation juridique du bénéficiaire. Ce complément de prestation n’est au demeurant pas accordé d’office, mais à la demande de l’intéressé, car il s’agit d’un droit accessoire accompagnant la prestation générale.

This, I think, is reasonable. After all, the purpose of Regulation no 1408/71 is precisely to make sure that "people are not given less" (so that they would not be put at disadvantage because of the fact that they decided to move freely around the Union). If they are "given more", no problem...

Regarding discrimination, AG was again quick to conclude that the rule concerned is incompatible with the ban on discrimination as it is limited to Czech nationals (who reside in the Czech Republic). It might be interesting to note here that AG seems to regret that no party to the proceedings really tried to defend the discriminatory rule (Nous estimons par conséquent que, en l’absence d’autres arguments apportés au dossier, le champ d’application personnel assigné au complément de prestation en cause constitue une discrimination dépourvue de justification objective et raisonnable.)

And that is when it starts to be really interesting. Starting from para 53 (under the title "Les conséquences d’une déclaration de violation du principe de non‑discrimination de l’Union sur la décision devant être prise par la juridiction de renvoi"), AG explains at length what the conclusion that there has been discrimination is to mean. According to AG, where discrimination is established, the basic rule is to make sure that the disadvantaged persons are given the same advantages as the advantaged persons (un nivellement «par le haut»), until the Member States amends the situation itself (be it through un nivellement «par le bas»). The problem here was that Landtova is not a victim of discrimination (she is at risk of being discriminated against on the national level, but this is obviously irelevant from the EU perspective), but (potentially at least) belongs to the group of the persons put at advantage (by the rule "created" by the Constitutional Court). In her case, un nivellement "par le bas" would be possible, but AG apparently tries to avoid that:

Ce qu’il convient de faire en l’espèce est à la fois plus modeste et moins usuel: il s’agit, en effet, d’éviter que la constatation du caractère discriminatoire de la disposition nationale ait pour effet immédiat de justifier la suppression, dans le cas concret, de l’avantage que la loi reconnaît à la personne qui relève du champ d’application subjectif de cette disposition. Tout cela ne s’applique bien entendu qu’en attendant que la République tchèque mette en place une règlementation générale en la matière, suivant les procédures législatives ou constitutionnelles que prévoit son ordre juridique.


This is reflected in the following way in the proposed response to the second preliminary questions itself:
 
Les articles 3 et 10 du règlement n° 1408/71, interprétés à la lumière de l’article 39 CE, doivent être interprétés en ce sens qu’ils s’opposent à l’octroi d’un complément de prestation de sécurité sociale, avec les caractéristiques susmentionnées, aux seuls ressortissants tchèques qui résident sur le territoire de la République tchèque. Cependant, dans les circonstances particulières de l’espèce, la réponse à la question précédente ne saurait servir de fondement aux prétentions de la CSSA dans le cadre de la procédure au principal.
 
My impression is that AG does everything to avoid the situation where the Constitutional Court would be faced with the delicated idea of having to abandon its own (established) case-law for its incompatibility with the EU law.
 
Well, let us see what the Court has to say on the matter.

New comitology: is it necessarily a bad thing?

In the article titled "Commission accused of power-grab under new EU rules", published on euobserver.com*, Daniel Gueguen criticizes heavily the new comitology, as introduced by the Lisbon Treaty. The criticism is as follows:

Through ratification of the EU's Lisbon Treaty, member states handed greater control over hundreds of daily decisions such as food labeling and trade-protection measures to the commission, Daniel Gueguen, a leading public affairs consultant, told EUobserver.
"The reason why the new system will be worse is its increasing complexity. The commission gets more power to the detriment of member states and lobbyists," said Mr Guéguen, the author of a recent book on the subject.
Asked whether the move amounted to an intentional power-grab by the commission, Mr Guéguen said: "There is no doubt. It's not official but in practice yes. They are the only people who have the time to understand the complexity of the issues. The European Parliament may think it is getting more power but in practice it will not."

Is this criticism justified? I would say: to a certain extent. Much will depend on how the practice will unfold. The European Parliament, the Council and the Member States do retain powers of control vis-a-vis the Commission (see below) and it will be up to them to use these powers effectively so that these powers do not remain "on paper".

Comitology after Lisbon

The Lisbon Treaty brought a revolution in the field of comitology (i.e. the rules governing the adoption of implementing legislation by the Commission on the basis of legislation adopted by the European Parliament and the Council (or, as the case may be, the Council itself). Article 202 TEC is gone and so is the Comitology Decision (1999/468/EC, as amended by 2006/512/EC**). The basis of the (now) old comitology was the committees composed of Member States representatives; in principle, the committees had to be consulted on every piece of implementing legislation. In certain cases, depending on the procedure, the Council was drawn into the game. Still, the Commission was always the principal player. For instance, in the regulatory procedure, qualified majority against or at least blocking minority against within the committee was the only way to prevent the Commission from adopting a measure (in which case the measure was forwarded to the Council and, again, the Commission was barred from adopting the measure only in the case of qualified majority against within the Council).

The Lisbon Treaty entails the following changes:

First of all, the field covered by the Comitology Decision (which laid down a set of procedures to be followed whenever the Commission is conferred the power to adopt implementing legislation) has been split in two: delegated acts (art. 290 TFEU) and implementing acts (art. 291 TFEU). There is a logic behind the two categories: delegated acts are intended to cover cases where the Commission is conferred the legislative power of the European Parliament and the Council (and where the Commission is, one might say, allowed to play the role of the legislator), while implementing acts are said to serve pure implementation.***

The essential elements of the procedure for the adoption of delegated acts are set out in the Treaty on the functioning of the EU itself and each time the European Parliament and the Council (or, as the case may be, the Council alone) adopt a legislative act, a number of provisions in the act need to be devoted to the description of the procedure to be followed when a delegated act is to be adopted on the basis of the legislative act****. As a rule, the procedure for the adoption of a delegated act will be as follows: the Commission adopts a delegated act, the act is forwarded to the European Parliament and the Council who can oppose the act (for whatever reason); if they don't, the act enters into force (if they do, back to square no 1). Surprisingly (at least for someone who looks at things through the glasses of the old comitology), the Treaty fails to speak of committees (the "basis-basis" of the old comitology). Member States managed to force the Commission into a committment to continue to use the committees whenever a delegated act is under preparation, but the truth is the role of the committees will be different (advisory, indicative, nothing more)*****. For this reason, there are opinions that "comitology" might no longer be the right world to describe the system as a whole.

Under art. 291 TFEU (implementing acts), an act similar to the old Comitology Decision was adopted: a Comitology Regulation******. The Regulation provides for two basic procedures (advisory procedure, examination procedure) that, in essence, follow the logic of the old comitology: the basis is the committees composed of Member States representatives. On the other hand, the Regulation provides for no role of the Council. In fact, the original proposal presented by the Commission envisaged a one-stage comitology only, so that the procedure would always be over after the proposed act is dealt with within a committee (and, in the examination procedure, the Commission would only be barred from adopting the implementing act if there was a qualified majority within the committee against). The negotiations within the Council added a second stage to that stage: in specified cases (qualified majority against and, sometimes, no opinion), the procedure will involve a so-called appeal committee. The Commission will then be barred from adopting the implementing act if there was qualified majority against (also) in the appeal committee. The Regulation also provides for a certain role of the European Parliament and the Council (art. 11), but this role can easilly be identified as marginal (one of the institutions can raise an ultra vires objection, yet such an objection is in no way binding on the Commission)*******.

In other words, the Commission is indeed in a powerful position (as the "owner" of the conferred powers), but its powers are not unlimited. The Member States (within the committees), the Council (i.e. the Member States within the Council) and the European Parliament (i.e. the citizens of the Member States) have powers of control and it is for them to use them where appropriate (and to know how to use them), so that the Commission, in reality (which can sometimes be complicated), does not become a true "comitology monarch".

Note: The account of the new comitology is very simplistic. An entire book would be necessary to describe all the (hidden) chambers and modalities.

* http://euobserver.com/9/31895
** The Comitology Decision is not completely dead, as, in particular, the regulatory procedure with scrutiny (art. 5a) remains applicable for indefinite future (i.e. until the legislative acts that contain references to this procedure are aligned with the new system). But this is the only exception (of significance), the old procedures have been replaced by the new procedures as of 1 March 2011.
*** It might be rather difficult to determine whether a particular act is of delegated or implementing nature. For instance, the European Parliament is reported to maintain that any act of general scope would be a delegated act (as a result of which, the category of implementing acts would be limited to individual acts). I would suggest that the category of delegated acts should be limited to the cases where the Commission acts as a legislator and should exclude the cases where the legislator exhausted its will to such an extent that the Commission is reduced to a mechanical implementation of that will.
**** For one example of this, see Regulation (EU) No 438/2010 of the European Parliament and of the Council, which introduced new articles 19a to 19d into the Regulation (EC) No 998/2003 on the animal health requirements applicable to the non- commercial movement of pet animals.
***** The said committment is contained in the Commission Communication of 9 December 2009,
COM(2009) 673 final, titled "Implementation of Article 290 of the Treaty on the Functioning of the European Union". That Communication details the intentions of the Commission and it also contains templates to be introduced into legislative acts for the purposes of setting out the procedure for the adoption of delegated acts. The Communication is to be supplemented by a Common Understanding between the European Parliament and the Council, but this is yet to be adopted.
****** Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.
******* This power is a legacy of the Comitology Decision, which provided for this ultra vires objection in favour of the European Parliament (art. 8).