Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
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Judgment of the Court (Fourth Chamber) of 11 June 2020, LE v Transportes Aéreos Portugueses SA, Case C-74/19, EU:C:2020:460

Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Article 7(1) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Exemption — Concept of ‘extraordinary circumstances’ — Unruly passengers — Possibility of relying on the occurrence of an extraordinary circumstance in respect of a flight not affected by that circumstance — Concept of ‘reasonable measures’

Facts

The dispute in the main proceedings is between a passenger and the air carrier Transportes Aéreos Portugueses (TAP) concerning its refusal to compensate that passenger whose connecting flight was subject to a long delay in arrival at its final destination. The passenger in question had made a reservation with TAP for a flight from Fortaleza (Brazil) to Oslo (Norway) with a stopover in Lisbon (Portugal).  The flight was operated on 21 and 22 August 2017 with a delay in arrival in Oslo of almost 24 hours. The delay was due to the fact that the passenger in question was unable to board the second leg of the connecting flight from Lisbon to Oslo because of a delay in the arrival of the first flight from Fortaleza to Lisbon. This delay was due to the fact that the aircraft which operated that flight, on its previous flight from Lisbon to Fortaleza, had had to be diverted to Las Palmas de Gran Canaria (Spain) in order to disembark an unruly passenger who had bitten a passenger and assaulted other passengers and members of the cabin crew. The passenger in question was therefore flown to Oslo on the next flight operated by TAP the following day.
Continue reading “Summaries of judgments”

Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪

Judgment of the General Court (First Chamber, Extended Composition) of 28 May 2020, T-399/16, CK Telecoms UK Investments/Commission

The facts

On 11 May 2016,[i] the Commission adopted a decision in which it blocked, under the Merger Regulation,[ii] the proposed acquisition of Telefónica UK (‘O2’) by Hutchison 3G UK3 (‘Three’).

According to the Commission, that acquisition would have removed an important competitor on the United Kingdom mobile telephony market and the merged entity would have faced competition only from two mobile network operators, Everything Everywhere (EE), belonging to British Telecom, and Vodafone. The Commission considered that the reduction from four to three competitors would probably have led to an increase in prices for mobile telephony services in the UK and a restriction of choice for consumers. The acquisition would also have been likely to have a negative influence on the quality of services for consumers, hindering the development of mobile network infrastructure in the UK. Lastly, it would have reduced the number of mobile network operators wishing to host other mobile operators on their networks.

Three brought an action before the General Court seeking annulment of the Commission’s Decision.

The Judgment

The General Court annuls the Commission’s decision to block the proposed acquisition of Telefónica UK by Hutchison 3G UK in the sector of the mobile telephony market.

A. The effects of the operation on prices and on the quality of services for consumers have not been proved to the requisite legal standard.

The Commission’s assessment was based on the consideration that the acquisition would have eliminated competition between two powerful players on the UK mobile telephony market, one of which, Three, is allegedly an important competitive force on the UK mobile telephony market and the other of which, O2, allegedly holds a strong position: together, the two would have been the market leader, with a share of approximately 40%. In particular, it seemed likely to the Commission that the merged entity would have been a less aggressive competitor, that it would have increased prices and that, moreover, the concentration would have been likely to have a negative impact on the ability of the other operators to compete on price and by means of other parameters (innovation, network quality).

After clarifying the scope of the change made by the Merger Regulation, as well as the burden of proof and the standard of proof in relation to concentrations, the General Court finds that the Commission’s application of the assessment criteria of the so-called ‘unilateral’ (or ‘noncoordinated’) effects – namely, the concept of ‘important competitive force’, the closeness of competition between Three and O2 and the quantitative analysis of the effects of the  concentration on prices – is vitiated by several errors of law and of assessment.

The Court acknowledges that the Merger Regulation allows the Commission to prohibit, in certain circumstances, on oligopolistic markets concentrations which, although not giving rise to the creation or strengthening of an individual or collective dominant position, are liable to affect the competitive conditions on the market to an extent equivalent to that attributable to such positions, by conferring on the merged entity the power to enable it to determine, by itself, the parameters of competition and, in particular, to become a price maker instead of remaining a price taker. However, the mere effect of reducing competitive pressure on the remaining competitors is not, in principle, sufficient in itself to demonstrate a significant impediment to effective competition in the context of a theory of harm based on non-coordinated effects.

As regards the classification of Three as an ‘important competitive force’, the Court finds that the Commission erred in considering that an ‘important competitive force’ need not necessarily stand out from its competitors in terms of its impact on competition. If that were the case, that position would allow it to treat as an ‘important competitive force’ any undertaking in an oligopolistic market exerting competitive pressure.

In addition, as regards the assessment of the closeness of competition, the Court finds that, although the Commission established that Three and O2 are relatively close competitors in some of the segments of a market, that factor alone is not sufficient to prove the elimination of the important competitive constraints which the parties to the concentration exerted upon each other and therefore to establish a significant impediment to effective competition.

The Court also finds that the Commission’s quantitative analysis of the effects of the concentration on prices does not establish, with a sufficiently high degree of probability, that prices would increase significantly.

B. The Commission failed to show that the effects of the concentration on the network-sharing agreements and on the mobile network infrastructure in the UK would constitute a significant impediment to effective competition

The current four mobile network operators in the UK are parties to two network-sharing agreements: on the one hand, EE and Three have brought together their networks under the ‘Mobile Broadband Network Limited’ – MBNL joint venture; on the other hand, Vodafone and O2 have brought together their networks to create ‘Beacon’. That enables them to share the costs of rolling out their networks while continuing to compete at the retail level.

According to the Commission, the future development of the mobile network infrastructure in the UK would have been hindered to the extent that the merged entity would have been party to both network-sharing agreements, MBNL and Beacon. That entity would have been afforded an overview of the network plans of the two remaining competitors, Vodafone and EE, and the possibility of weakening them, thereby hindering the future development of the mobile network infrastructure in the country. In particular, according to the Commission, one of the ways of weakening the competitive position of one or other of the partners in the network-sharing agreements would be to degrade the network quality of that agreement. For the Commission, that seems particularly relevant for the partner in the network-sharing agreement that would not become the basis of the merged entity’s consolidated network.

The Court finds that a possible misalignment of the interests of the partners in a network-sharing agreement, a disruption of the pre-existing network-sharing agreements, or even the termination of those agreements do not constitute, as such, a significant impediment to effective competition in the context of a theory of harm based on non-coordinated effects.

In that regard, the Court notes, first, that the effects of the concentration in relation to a possible exercise of market power, in the form of a degradation of the services offered by the merged entity or of the quality of its own network, were not analysed in the contested decision, even though the assessment of a possible elimination of important competitive constraints between the parties to the concentration and a possible reduction of competitive pressure on the remaining competitors should lie at the heart of the assessment of the non-coordinated effects arising from a concentration.

The Court notes, second, that, even if the merged entity had favoured one of the two networksharing agreements and was induced in particular to reduce the costs associated with the other network, that could not have a disproportionate effect on the position of the other partner in the network-sharing agreement or constitute a significant impediment to effective competition, since the Commission has failed to make the case that the other party would have neither the ability nor the incentive to react following an increase in its costs and would simply cease to invest in the network.

C. The effects of the concentration on the wholesale market were not found to be sufficient to establish the existence of a significant impediment to effective competition

In addition to the four mobile network operators, there are also several ‘virtual’ operators on the UK mobile telephony retail market, such as Virgin Media, Talk Talk and Dixons Carphone which use the infrastructure of the ‘host’ mobile network operators to provide their services to consumers in the UK.

According to the Commission, the loss of Three as an ‘important competitive force’ and the ensuing reduction in the number of host mobile networks would have placed the virtual operators in a weaker negotiating position to obtain favourable wholesale access conditions.

The Court finds that neither Three’s wholesale market shares nor their recent increase justify its classification as an ‘important competitive force’. The mere fact that Three had more of an influence on competition than its market share would suggest is not sufficient to establish the existence of a significant impediment to effective competition, particularly as it was not disputed that Three’s market share was small.

[i] Commission Decision C(2016) 2796 of 11 May 2016 declaring the operation incompatible with the internal market (Case COMP/M.7612 — Hutchison 3G UK/Telefónica UK).

[ii] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), as implemented by Commission Regulation (EC) No 802/2004 of 7 April 2004 (OJ 2004 L 133, p. 1).

[iii] Hutchison 3G UK Investments Ltd, an indirect subsidiary of CK Hutchison Holdings Ltd, became the applicant, CK Telecoms UK Investments Ltd.

Judgments of the General Court (4th Chamber) of 12 March 2020, Cases T-732/16, Valencia Club de Fútbol v Commission and T-901/16 Elche Club de Fútbol v Commission

State aid — Aid granted by Spain to certain professional football clubs — Guarantee — Decision declaring the aid to be incompatible with the internal market — Advantage — Firm in difficulty — Private investor test — Guidelines on State aid for rescuing and restructuring firms in difficulty — Amount of the aid — Recipient of the aid — Principle of non-discrimination — Duty to state reasons

Facts

Between 2009 and 2010, the Instituto Valenciano de Finanzas (‘the IVF’) — the financial establishment of the Generalitat Valenciana (Regional Government of Valencia, Spain) — granted a number of guarantees to associations linked to three Spanish professional football clubs from the Autonomous Community of Valencia, Valencia CF, Hércules CF and Elche CF. Those guarantees were intended to cover the bank loans taken out by those associations in order to participate in the increase in the capital of the three clubs to which they were linked. In Valencia CF’s case, the guarantee granted was increased in 2010 in order to cover the increase of the underlying bank loan.

By decision of 4 July 2016, the Commission found that those measures constituted unlawful State aid incompatible with the internal market in favour of the three football clubs, and consequently it ordered their recovery.

The three clubs each brought an action before the General Court with a view to annulling the Commission’s decision.

By judgment of 20 March 2019, the Court annulled the Commission’s decision in relation to Hércules CF.

By judgments of 12 March 2020, the Court annuls the Commission’s decision in relation to Valencia CF and Elche CF.

Judgment T-732/16 Valencia Club de Fútbol v Commission

First of all, the Court examines the assessments relating to the guarantee given by the IVF to cover the bank loan granted to the association linked to Valencia CF, the Fundación Valencia. It considers that the Commission made a manifest error of assessment in that respect by finding that no equivalent guarantee premium could be found on the market. After correctly classifying Valencia CF as a ‘firm in difficulty’, the Commission wrongly assumed that no financial establishment would act as a guarantor for a firm in such a situation and, consequently, that no corresponding guarantee premium benchmark could be found on the market. Furthermore, it did not carry out an overall assessment taking into account all relevant evidence enabling it to determine whether Valencia CF would manifestly not have obtained comparable facilities from a private investor.

The Court also considers that the Commission did not sufficiently support the finding that there was no market price for a similar non-guaranteed loan ‘due to the limited number of observations of similar transactions on the market’.

Next, the Court examines the assessments relating to the increase in the guarantee decided in 2010. The Commission had, inter alia, concluded that the shares in Valencia CF acquired by the Fundación Valencia and pledged to the IVF as a counter-guarantee had a value ‘close to zero’ on the date that increase was granted, since Valencia CF, in particular, was in difficulty and was operating at a loss. The Court finds that the evidence on which the Commission’s conclusions on that point are based are partly incorrect, in that the financial year preceding that grant closed with a profit. It also considers that the Commission made a manifest error of assessment in that respect, because it did not take into account relevant factors, such as the existence of the club’s significant own equity and the generation of a profit before taxes in the fiscal year preceding the grant of the increase. Those errors vitiate the Commission’s assessment of the value of the counter-guarantees provided by the Fundación Valencia and, consequently, its calculation of the amount of the aid arising from the increase of the guarantee.

Judgment T-901/16 Elche Club de Fútbol v Commission

The Court finds that the Commission’s assessment of the existence of an advantage from which Elche CF benefits is vitiated by manifest errors of assessment.

In the first place, the Commission made a manifest error of assessment by not taking into account the economic and financial situation of the borrowing association linked to Elche CF, the Fundación Elche. The Court states that this is a relevant factor for the purposes of evaluating the risk taken by the State guarantor and, thereby, the guarantee premium which a private operator would claim in those circumstances. Although the Fundación Elche is not identified by the Commission as being the actual beneficiary of the loan, it did benefit from the guarantee at issue under the contract concluded with the IVF and was accountable to the IVF for the consequences, as the case may be, of activating the guarantee.

In the second place, the Court states that the Commission made a further manifest error of assessment by also failing to take into account, for the purposes of examining the existence of an advantage, the relevant fact of the mortgage on land which the Fundación Elche had granted to the IVF as a counter-guarantee.

In the third place, the Court considers that the Commission was wrong not to take into account the recapitalisation of Elche FC for the purposes of assessing the value of the shares in Elche FC, pledged to the IVF as a counter-guarantee, which the Commission found to be ‘close to zero’.

In the fourth place, the Court states, as it did in relation to Valencia CF, that the Commission, after finding that Elche CF was a firm in difficulty, wrongly assumed that no financial establishment would act as a guarantor for such a firm and therefore that that no corresponding guarantee premium benchmark could be found on the market. Similarly, the Court criticises the Commission for not sufficiently substantiating its conclusion relating to the lack of comparable transactions to establish the market price of a similar non-guaranteed loan.

Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Grand Chamber) of 23 April 2020,Associazione Avvocatura per i diritti LGBTI, Case C-507/18, EU:C:2020:289

Reference for a preliminary ruling – Equal treatment in employment and occupation –Directive 2000/78/EC – Article 3(1)(a), Article 8(1) and Article 9(2) – Prohibition of discrimination based on sexual orientation – Conditions for access to employment or to occupation – Concept – Public statements ruling out recruitment of homosexual persons – Article 11(1), Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union – Defence of rights – Sanctions – Legal entity representing a collective interest – Standing to bring proceedings without acting in the name of a specific complainant or in the absence of an injured party – Right to damages

Facts

In the case, a lawyer had stated, in an interview given during a radio programme, that he would not wish to recruit homosexual persons to his firm nor to use the services of such persons in his firm. Having taken the view that that lawyer had made remarks constituting discrimination on the ground of the sexual orientation of workers, an association of lawyers that defends the rights of lesbian, gay, bisexual, transgender or intersex (LGBTI) persons in court proceedings brought proceedings against him for damages. The action having been successful at first instance and that ruling having been upheld on appeal, the lawyer appealed in cassation, against the judgment delivered in the appeal, before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which then sought a preliminary ruling from the Court of Justice on, inter alia, the interpretation of the concept of “conditions for access to employment … and to occupation”, within the meaning of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

Decision

After recalling that that concept must be given an autonomous and uniform interpretation throughout the EU and cannot be interpreted restrictively, the Court interpreted that concept by reference to its judgment of 25 April 2013, Asociația Accept, C‑81/12, EU:C:2013:275. The Court held that statements made by a person during an audiovisual programme, according to which that person would never recruit persons of a certain sexual orientation to that person’s undertaking or wish to use the services of such persons, fall within the material scope of Directive 2000/78 and, more particularly, within the concept of “conditions for access to employment …or to occupation” within the meaning of Article 3(1)(a) of that directive, even if no recruitment procedure had been opened, nor was planned, at the time when those statements were made, provided, however, that the link between those statements and the conditions for access to employment or to occupation within the undertaking is not hypothetical.

Whether such a link exists must be assessed by the national courts on the basis of all the circumstances characterising those statements. Relevant criteria in that regard are the status of the person making the statements and the capacity in which he or she made them, which must establish either that he or she is a potential employer or is, in law or in fact, capable of exerting a decisive influence on the recruitment policy or a recruitment decision of a potential employer, or, at the very least, may be perceived by the public or the social groups concerned as being capable of exerting such influence. The national courts must also take into account the nature and content of the statements concerned, that must relate to the conditions for access to employment or to occupation with the employer concerned and establish the employer’s intention to discriminate on the basis of one of the criteria laid down by Directive 2000/78, and the context in which they were made, in particular their public or private character.

According to the Court, the fact that that interpretation of “conditions for access to employment … or to occupation” may entail a possible limitation to the exercise of freedom of expression does not call that interpretation into question. Indeed, the limitations result directly from Directive 2000/78 and are applied only for the purpose of attaining its objectives, namely to safeguard the principle of equal treatment in employment and occupation and the attainment of a high level of employment and social protection. In addition, the limitations arising from Directive 2000/78 to the exercise of freedom of expression are necessary to guarantee the rights in matters of employment and occupation of the persons covered by that directive, and do not go beyond what is necessary to attain the objectives of that directive, in that only statements that constitute discrimination in employment and occupation are prohibited.

Last, the Court ruled that Directive 2000/78 does not preclude national legislation under which an association of lawyers whose objective, according to its statutes, is the judicial protection of persons having in particular a certain sexual orientation and the promotion of the culture and respect for the rights of that category of persons, automatically, on account of that objective and irrespective of whether it is a for-profit association, has standing to bring legal proceedings for the enforcement of obligations under that directive and, where appropriate, to obtain damages, in circumstances that are capable of constituting discrimination, within the meaning of that directive, against that category of persons and it is not possible to identify an injured party. The Court made clear in that regard that although the directive does not require an association such as that at issue in the main proceedings to be given such standing where no injured party can be identified, it does give the Member States the option of introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment. It is therefore for the Member States which have chosen that option to decide under which conditions an association may bring legal proceedings for a finding of discrimination prohibited by Directive 2000/78 and for a sanction to be imposed in respect of such discrimination. It is in particular for the Member State to determine whether the for-profit or non-profit status of the association is to have a bearing on the assessment of its standing to bring such proceedings, and to specify the scope of such an action, in particular the sanctions that may be imposed, such sanctions being required, in accordance with Article 17 of Directive 2000/78, to be effective, proportionate and dissuasive, regardless of whether there is any identifiable injured party.

 

Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Fourth Chamber) of 29 January 2020, GAEC Jeanningros v Institut national de l’origine et de la qualité (INAO) and Others – Case C-785/18, EU:C:2020:46

Reference for a preliminary ruling – Agriculture – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Protected designation of origin ‘Comté’ – Minor amendment to a product specification – Action before national courts contesting an application for an amendment – Case-law of the national courts according to which the action becomes devoid of purpose when the European Commission has approved the amendment – Effective judicial protection – Obligation to rule on the action

1. Facts

The request for a preliminary ruling concerned the interpretation of, inter alia, Article 53 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1). The main proceedings concerned the amendment of the product specification for the protected designation of origin (PDO) ‘Comté’.

On 8 September 2017, the Minister for Agriculture and Food and the Minister for Economic Affairs and Finance (France) issued a decree approving a minor amendment to the product specification for the ‘Comté’ PDO with a view to submitting that minor amendment to the Commission for approval, in accordance with the procedure laid down in Article 53 of Regulation No 1151/2012. By an action brought on 16 November 2017 before the Conseil d’État (Council of State, France), GAEC Jeanningros sought the annulment of the decree, in so far as it approved that minor amendment. While those proceedings were still pending, by decision published on 1 June 2018 (OJ 2018 C 187, p. 7), the Commission approved the application for a minor amendment to the product specification for the ‘Comté’ PDO at issue, in accordance with the second subparagraph of Article 53(2) of Regulation No 1151/2012.
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Human dignity, child protection and the case C-233-18 (12 of November 2019)

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  by Maria Inês Costa, Master's student in Human Rights at UMinho


The first article of the EU Charter of Fundamental Rights focuses on the preservation of the human being’s dignity. Gomes Canotilho and Vital Moreira highlight that the dignity of the human person is the mainstay of the principle of equality, in the sense that it is not possible to weight or grade “dignities”: it belongs to everyone, not just the “normal” people, but also the disabled, criminals and with “deviations”, not just to national citizens (and Europeans), but also to foreigners, stateless people, refugees and the exiles. This observation presents a vision of human dignity as something that belongs to everyone by virtue of being human, and not due to some exceptional condition. It is a right that is ours, and under no circumstances can it be taken away from us.

Having these ideas present in mind, it is of great relevance to pay attention to the process and conclusions that can be taken from the publishing of the judgement of the EU Court of Justice, written following the case C-233/18, that opposed Zubair Haqbin to Fedasil, the Federal Agency for the reception of asylum seekers, in Belgium.

Zubair, a young minor of Afghan nationality, applied for international protection to the Belgian authorities on 23 December 2015. He was taken to a center in Sugny and Brochem, and he was also appointed a tutor.

Continue reading “Human dignity, child protection and the case C-233-18 (12 of November 2019)”

Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪

 

Judgment of the General Court (Seventh Chamber) of 12 December 2019 – T‑683/18

EU trade mark – Application for EU figurative mark CANNABIS STORE AMSTERDAM – Absolute ground for refusal – Trade mark contrary to public policy – Article 7(1)(f) of Regulation (EU) 2017/1001 – Article 7(2) of Regulation 2017/1001

1 – Facts

In 2016, Santa Conte, resident in Naples (Italy), filed an application for registration of an EU trade mark for food, drink and restaurant services with the European Union Intellectual Property Office (EUIPO), as reproduced below:

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Registration was refused on the basis of Article 7(1)(f) of Regulation No 2017/1001, according to which “shall not be registered (…) trade marks which are contrary to public policy or to accepted principles of morality”.

Disagreeing with this decision, Santa Conte challenged EUIPO’s decision before the General Court of the European Union (GC).
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We are all in the same boat! On the legal principle of solidarity and its legal implications in the recent CJEU case law

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by Alessandra Silveira, Editor

The Opinion of the Advocate-General Eleanor Sharpston in the joined cases C-715/17, C‑718/17 and C‑719/17 (delivered on 31 October 2019) concluded by recalling an old story from the Jewish tradition that deserves wider circulation – particularly in times of COVID-19 pandemic. A group of men are travelling together in a boat. Suddenly, one of them takes out an auger and starts to bore a hole in the hull beneath himself. His companions remonstrate with him. ‘Why are you doing that?’ they cry. ‘What are you complaining about?’ says he. ‘Am I not drilling the hole under my own seat?’ ‘Yes,’ they reply, ‘but the water will come in and flood the boat for all of us’ (paragraph 255).

The story is recalled by the Advocate-General regarding the principle of solidarity provided in Article 80 TFEU: “The policies of the Union set out in this Chapter [‘Policies on border checks, asylum and immigration’] and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Wherever necessary, Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle”.

On this principle – which requires all Member States – the Advocate-General stated that “respecting the ‘rules of the club’ and playing one’s proper part in solidarity with fellow Europeans cannot be based on a penny-pinching cost-benefit analysis along the lines (familiar, alas, from Brexiteer rhetoric) of ‘what precisely does the EU cost me per week and what exactly do I personally get out of it?’ Such self-centredness is a betrayal of the founding fathers’ vision for a peaceful and prosperous continent. It is the antithesis of being a loyal Member State and being worthy, as an individual, of shared European citizenship. If the European project is to prosper and go forward, we must all do better than that” (paragraph 254 of the Opinion).
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Grand Chamber) of 12 November 2019, Zubair Haqbin v Federaal Agentschap voor de opvang van asielzoekers – Case C-233/18, EU:C:2019:956

Reference for a preliminary ruling — Applicants for international protection — Directive 2013/33/EU — Article 20(4) and (5) — Serious breaches of the rules of the accommodation centres as well as seriously violent behaviour — Scope of the Member States’ right to determine the sanctions applicable — Unaccompanied minor — Reduction or withdrawal of material reception conditions

Facts

The Court of Justice ruled for the first time on the scope of the right conferred on Member States by Article 20(4) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96). The request for a preliminary ruling has been made in proceedings between Z. Haqbin and the Federaal Agentschap voor de opvang van asielzoekers (Federal agency for the reception of asylum seekers, Belgium) concerning a claim for compensation brought by the former following a decision to temporarily excluded him from material reception conditions.

Z. Haqbin, of Afghan nationality, arrived in Belgium as an unaccompanied minor and lodged an application for international protection on December 2015. He was then hosted in a reception centre. In that centre, Z. Haqbin was involved in a brawl with other residents of various ethnic origins. Following that brawl, the director of the reception centre decided to exclude Z. Haqbin for a period of 15 days from material aid in a reception facility. During that period of exclusion (between April and May 2016), Z. Haqbin, according to his own statements, spent his nights in a park in Brussels and stayed with friends.

Z. Haqbin lodged an application to suspend the exclusion measure referred above. That application was dismissed for lack of extreme urgency, since Z. Haqbin had failed to show that he was homeless. Z. Haqbin then brought an action seeking cancellation of that measure and compensation for the damage suffered. The referring court before which Z. Haqbin lodged an appeal against the first-instance ruling that dismissed his action, asked the Court of Justice whether it was possible for the Belgian authorities to withdraw or reduce material reception conditions in respect of an applicant for international protection in Z. Haqbin’s situation. Moreover, with regard to his particular situation, the question arose as to the conditions under which such a sanction can be imposed on an unaccompanied minor.

Decision

Article 20(4) of Directive 2013/33 states that Member States may determine ‘sanctions’ applicable to serious breaches, by the applicant, of the rules of the accommodation centres as well as to seriously violent behaviour of the applicant. In that regard, the Court of Justice clarified that the ‘sanctions’ referred to in Article 20(4) of Directive 2013/33 may, in principle, concern material reception conditions. However, such sanctions must, in accordance with Article 20(5) of the directive, be objective, impartial, motivated and proportionate to the particular situation of the applicant and must, under all circumstances, ensure a dignified standard of living according to Article 1 CFREU.

Therefore, a sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs. Such a sanction would also amount to a failure to comply with the proportionality requirement under Article 20(5) of Directive 2013/33, in so far as even the most stringent sanctions, whose objective is to punish, in criminal law, the breaches or behaviour referred to in Article 20(4) of the directive, cannot deprive the applicant of the possibility of meeting his or her most basic needs. The Court added that Member States are required to guarantee continuously and without interruption a dignified standard of living and that the authorities of the Member States are required to ensure, under their supervision and under their own responsibility, the provision of material reception conditions guaranteeing such a standard of living, including when they have recourse, where appropriate, to private natural or legal persons in order to carry out, under their authority, that obligation.
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪

 

Judgment of the General Court (Ninth Chamber, Extended Composition) of 24 October 2019 – T 310/18 – EPSU and Goudriaan v European Commission

“Social policy – Dialogue between management and labour at European Union level – Agreement entitled ‘General framework for informing and consulting officials and other servants of central government administrations’ – Joint request by the signatory parties for application of that agreement at European Union level – Refusal by the Commission to submit a proposal for a decision to the Council – Action for annulment – Act against which proceedings may be brought – Admissibility – Commission’s discretion – Autonomy of the social partners – Principle of subsidiarity – Proportionality”.

1 – Facts

On April 10th 2015, the European Commission invited the social partners, on the basis of Article 154(2) TFEU, to comment on the possible direction of EU action to consolidate the Directives on information and consultation of workers. That consultation focused in particular on the possible extension of the scope of those Directives to officials and other servants of public administrations in the Member States.

On June 2nd 2015, the social partners of the Social Dialogue Committee for central government administrations, namely the Trade Union Delegation of the National and European Administration (DSANE) and the European Public Administration Employers (EPAE), informed the Commission, on the basis of Article 154(4) TFEU, of their wish to negotiate and conclude an agreement on the basis of Article 155(1) TFEU.
Continue reading “Summaries of judgments”

Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
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Judgment of the Court (Fourth Chamber) of 29 July 2019, Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék, Case C-620/17, ECLI:EU:C:2019:630

Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Directive 92/13/EEC — Right to effective judicial protection — Principles of effectiveness and equivalence — Action for review of judicial decisions in breach of EU law — Liability of the Member States in the event of infringement of EU law by national courts or tribunals — Assessment of damage eligible for compensation

Facts

In 2006, a call for expressions of interest for a public works contract was published in the Official Journal of the European Union. According to the call, a candidate whose balance sheet showed a negative result for more than one of the last three financial years would not fulfil the conditions for economic and financial capacity. Hochtief Solutions, which did not fulfil that criterion, challenged its lawfulness before the Közbeszerzési Döntőbizottság (Public Procurement Arbitration Committee) arguing (i) that that criterion was discriminatory and (ii) that it was not by itself capable of providing information on the financial capacity of a tenderer. The Arbitration Committee partially upheld Hochtief Solutions’ action, ordering the contracting authority to pay a fine, but did not find that that criterion was unlawful.

Hochtief Solutions brought an action against the decision of the Arbitration Committee before the Fővárosi Bíróság (Budapest High Court), which took the view that the results of the balance sheet constituted a suitable criterion for providing information about economic and financial capacity and, accordingly, dismissed the action. Hochtief Solutions then appealed against this judgment to the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal), which decided to stay the proceedings and to submit the request for a preliminary ruling that led to the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643). The Fővárosi Törvényszék (Budapest High Court), which had meanwhile succeeded the Fővárosi Ítélőtábla, having taken account of that judgment of the Court, upheld the judgment delivered at first instance, holding that the criterion used by the contracting authority to assess economic and financial capacity was not discriminatory. The Kúria (Supreme Court) dismissed the appeal lodged by Hochtief Solutions against the judgment of the Fővárosi Törvényszék. The Alkotmánybíróság (Constitutional Court) dismissed as inadmissible the constitutional appeal lodged by Hochtief Solutions against this judgment of the Kúria.

In 2014, Hochtief Solutions filed an application before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) for review of the above-mentioned judgment of the Fővárosi Törvényszék. In support of its application for review, Hochtief Solutions claimed that the question whether the results of the balance sheet were an appropriate indicator for assessing the economic and financial capacity of a tenderer, and the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643), had not, in fact, been subject to any examination. In addition to rejecting Hochtief Solutions’ request to make a reference to the Court for a preliminary ruling, the Fővárosi Közigazgatási és Munkaügyi Bíróság dismissed the application for review, finding that the facts and evidence relied on by Hochtief Solutions were not new, the conditions of national law for the admission of a review appeal not being met. Hochtief Solutions then appealed against the order dismissing its application for review before the Fővárosi Törvényszék, which confirmed the order at first instance.

Hochtief Solutions then brought an action before the Székesfehérvári Törvényszék (Székesfehérvár High Court) seeking compensation for the damages that, it argued, the Fővárosi Törvényszék had caused in exercising its jurisdiction. Hochtief Solutions claims, in this regard, that it had not been given the opportunity, in accordance with EU law, to have account taken of the facts or circumstances that it had put forward before the Arbitration Committee and in the main proceedings, but on which neither that Committee nor the national courts seised of the case had given a ruling. In those circumstances, the Székesfehérvári Törvényszék decided to refer for a preliminary ruling several questions to the Court seeking guidance on, in particular, the principles laid down by the Court concerning, on the one hand, the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, and, on the other hand, the review of national judgments which acquired the force of res judicata.

Decision

As regards, on the one hand, the principles relating to the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, the Court of Justice recalled that that liability is governed by the conditions laid down by the judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513), without excluding the possibility that the State in question might incur liability under less strict conditions on the basis of national law. The Court of Justice also recalled that that liability is not precluded by the fact that the judicial decision in question has acquired the force of res judicata. In the context of the enforcement of that liability, the judgment reaffirms previous case-law according to which it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at last instance committed a sufficiently serious infringement of EU law by manifestly disregarding the relevant EU law, including the relevant case-law of the Court. The judgment also clarifies that EU law precludes a rule of national law which generally excludes the costs incurred by a party as a result of the harmful judicial decision from damage which may be the subject of compensation.

As regards, on the other hand, the second set of questions referred for a preliminary ruling, the Court interpreted EU law as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment. However, when the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final –– where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision –– that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with EU law, as interpreted by an earlier judgment of the Court of Justice.

Judgment of the Court (Third Chamber) of 12 September 2019, Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, Case C-683/17, EU:C:2019:721

Request for a preliminary ruling from the Supremo Tribunal de Justiça – Freedom of establishment – Freedom to provide services – Approximation of laws – Intellectual, industrial and commercial property –  Directive 2001/29/EC – Article 2, c)

The Case C-683/18 dealt with a question referred by the Supremo Tribunal de Justiça (Portugal) on whether the directive on copyright precludes provisions of national legislation whereby that protection is granted if a specific condition is satisfied, namely that designs must, over and beyond their practical purpose, produce a specific aesthetic effect.

The case before the Supremo Tribunal de Justiça (Portugal) concerned a dispute between Cofemel – Sociedade de Vestuário, SA (‘Cofemel’) and G-Star Raw CV (‘G-Star’), two companies which are both active in the sector of design, production and sale of clothing. The dispute concerns compliance with copyright claimed by G-Star, which accuses Cofemel of producing and selling jeans, sweatshirts and t-shirts copying some of its own designs.

The Court of Justice answered the question referred by the Supremo Tribunal de Justiça in the affirmative.

The Court recalled that any original subject matter constituting the expression of its author’s own intellectual creation can be classified as a ‘work’, within the meaning of the directive on copyright. Consequently, a design may also, in a particular case, also be classified as a ‘work’. However, the Court then recalled that the protection of designs, on the one hand, and copyright protection, on the other, pursue different objectives and are subject to distinct rules. Therefore, the Court explained that the grant of protection, under copyright, to subject matter that is already protected as a design must not undermine the respective objectives and effectiveness of those two sets of rules, which is why the cumulative grant of such protection can be envisaged only in certain situations. In this context, the Court explained that the aesthetic effect that may be produced by a design does not constitute a factor that is relevant to the determination, in a particular case, of whether that design can be classified as a ‘work’, since such an aesthetic effect is the product of an intrinsically subjective sensation of beauty experienced by each individual who may look at the design in question.

The Court underlined that the classification as ‘work’ does, however, require that, first, there exists a subject matter which is identifiable with sufficient precision and objectivity, and, second, that subject matter constitutes an intellectual creation reflecting the freedom of choice and personality of its author. As such, the fact that designs produce, over and above their practical purpose, a specific aesthetic effect, does not, in itself, require that such designs can be classified as ‘works’.