Month: April 2016

Comment on “La nueva relación entre el Estado y la sociedad”, by José Esteve Pardo

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by Agustín Ruiz Robledo, Professor at Universidad de Granada
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Review on the book “La nueva relación entre el Estado y la sociedad”, by José Esteve Pardo, Ed. Martial Pons, Madrid, 2013.

The economic crisis has been studied almost from the moment it broke in front of European’s faces in 2008, a time in which many of us thought that the crisis was a purely American matter. Without intending to be very precise, we could say that this broad collective reflection has produced a specialization among economists, who analyse the causes, and lawyers, who focus on the consequences that the crisis is having on our system. However, José Esteve Pardo, Professor of Administrative Law at the University of Barcelona, has broken this pattern to try an approach to the background of the crisis, a crisis that he considers to be of all European states and not just one in particular. In his thesis, as he advances in the title, he considers that the balance between society and State which was gained in the Occidental world after World War II has been broken. This telluric movement, or “fault” as the author calls it, derives in economic problems, terrible unemployment figures, rampant corruption, etc.

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Summary of Tetra Pak – T-51/89

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by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho
▪

Keywords: Common Market, Abuse, Dominant Position, European Commission, Exemption.

Court: CJEU, General Court | Date: June 10th 1990 | Case: T-51/89 | Applicants: Tetra Pak Raussing S.A. vs European Commission

Summary: On 26th July 1988, European Commission declared that Tetra Pak Raussing S.A. was in breach of article 86 of the EEC Treaty because by purchasing LiquiPak, they would have access to LiquiPak’s exclusivity contract of patent. This exclusive licence relates to a new UHT milk-packaging process. On 26th June 1986, EloPak made a complaint to the European Commission contesting TetraPak act according to articles 85 and 86 of the EEC Treaty. European Commission concluded that TetraPak infringed article 86 of the EEC Treaty by abusing its dominant position. TetraPak contested the decision and appealed to First Instance Court based on the argument that European Commission couldn’t disallow the deal based on article 86 when this deal is an exemption to n.3 of article 85 of the EEC Treaty. This argument is separated in three sub-categories:

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An overview of the treatment contract in the DCFR

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by Helga Fonseca, Collaborating Member of CEDU
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  1. INTRODUCTION

The Treatment contract is one of the legal instruments provided in the Draft Common Frame of Reference (DCFR)[i] which allows the parts into a medical services contract under the Art. I.V.C.-8:101 to 8:111.

This particular instrument developed in the 1980s in the legislation of the European Community – now the European Union – has the purpose to protect the parts, inter alia, the consumers in private contractual situations, above all, when one party is in a weaker position (the patient) in comparison to the medical provider (the Services Directive does not applies to the medical services)[ii].

As it says in the DCFR, the “DCFR is developed on the basis of comparative studies of community law and the laws of the Member States, it has to reflect the underlying values to be found in the existing laws, that are not the same in each system”. As far as there are differences between the underlying values in individual jurisdictions, or between the laws of the Member States and EC law, the DCFR mediates between them and takes a balanced position. Any attempt to work in principles of private law, will at least have to deal with the following core aims and the values expressed in them: Justice; Freedom; Protection of Human Rights; Economic welfare; Solidarity and Social Responsibility; Promotion of the Internal Market; Preservations of Cultural and Linguistic Plurality and so on[iii].

The DCFR is to be interpreted and applied in consistent with the aims and principles of which not only the laws of the Member States, but also the principles to which the European Union is based on. Such as the Internal Market with free and fair competitions and free movements of goods, people, services and capital, and the protection of consumers and others in need of protection.

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Summary of Brasserie du Pêcheur & Factortame – C-46/93 and C-48/93

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by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho
▪

Keywords: liability of the state; legislator; claims; repair; individual’s rights

Court: CJEU | Date: March 5th 1996 | Cases: C46/93 and C-48/93 | Applicants: Brasserie du Pêcheur vs Federal Republic of Germany

Summary: This judgment contains two similar cases connected to the same matter: liability of the State.

In the first case, the French company Brasserie du Pêcheur was obliged to cease their exportations from Germany due to German authorithies’ allegations that the beer did not fulfill purity requirement. European Comission interfered in this case and stated that this provisions were contrary to article 30 of EEC Treaty and brought an infringement proceedings against German Federal Republic. On 12th March 1987, the court confirmed EC’s arguments and consequently condemned the German act. Therefore, Brasserie du Pêcheur moves another action to reclaim their losses. The Court had doubts related to the limits of liability of the State and internal law and so they decided to send a question to the CJEU.

In the second case, Factortame intented an action in High Court of Justice with the purpose to challenge the compatibility of Part II of the Merchant Shipping Act with article 52 of the EEC Treaty. This law predicted a new register for British fishing boats and it pretended to obligate vessel’s registration, including those already registered, according to some conditions relating to nationality. The boats that couldn’t be registered were forbidden to fish. In another previous judgement, CJEU considered that this law was contrary to Communitary law, but it was not contrary that all the boats in UK suffered more controled by the authorities. On 4th August 1989, European Comission brought infringement proceedings against UK to suspend nationality requests because they were contrary to articles 7, 52 and 221 of the EEC Treaty. Afterwards, the Court decided to call the intervenients to show the amount of claims, however the Court had doubts in what refers to include a claim for inconstitutional behaviour and send a question to CJEU.

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Editorial of April 2016

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by Emília Castro, Researcher at Faculty of Law, Universität Hamburg
▪

The EU-Turkey deal and the migration crisis – or how far refugees are from an equal and dignified treatment

The ever-increasing flow of people around the globe is an unarguable consequence of the globalization process, which we have undergone, mainly as of the twentieth century. However, the world seems to have been drawing its attention to the movement of people around the globe not in the very last century, but mostly in the last two years. The nowadays called “migration crisis” has been showing the international society how difficult it is to struggle against some dire situations some people experience in their home countries.

Mainly because of its strong economy and its tradition of human rights, the European Union has been figuring as the main destination of refugees: more than a million migrants and refugees crossed into Europe in 2015 – and there are no signs these numbers are reducing in 2016.

In March 2016, however, the European Union seemed to have taken a step back on refugees’ Human Rights protection. The EU-Turkey Joint Action Plan was put into practice on March 20th  for the sake of managing the refugee crisis. In a nutshell, some of the main aspects of this deal (called by the EU as “principles”) consider[i]:

1) The return of all new irregular migrants and asylum seekers crossing from Turkey into the Greek islands with the costs covered by the European Union;

2) The resettlement of Syrian nationals: for every irregular Syrian returned from the Greek islands and readmitted by Turkey, another regular Syrian will be resettled to the EU Member States directly from Turkey. In order to achieve this goal, EU Member States should make a sufficient number of resettlement places available.

Some principles of this Joint Action Plan draw Turkey and the EU together. In compensation for the return and resettlement scheme – and apart from the obviously needed disbursement of funds under the Facility for Refugees in Turkey, which will be sped up – the Commission and Member States are working on advancing the accession negotiations with Turkey. Moreover, by the end of April 2016, the European Commission should make a legislative proposal to lift the visa requirements for Turkish citizens who want to enter the EU territory.

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