European Court of Justice/Court of First Instance

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2012

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2012

The Court observed, none the less, that in order for advantages to be capable of being catego- rised as State aid within the meaning of Article [107](1) [TFEU], they must be imputable to an au- tonomous and unilateral decision of the Member State concerned. That was not so in the case of the exemptions from excise duty at issue, which, having been granted in reliance on the Council’s authorisation decisions issued on a proposal from the Commission in accordance with Directive 92/81, had to be imputed to the European Union. It followed that, as long as the Council’s authori- sation decisions remained in force and had not been amended by the Council or annulled by the Courts of the European Union, the Commission was not entitled to classify the exemptions as State aid. Moreover, since the procedural requirements laid down in Article [108 TFEU] stem from the classification of the measures in question as State aid within the meaning of Article [107](1) [TFEU], there was no basis for the Commission’s complaint that the Member States concerned had failed to notify to it the exemptions at issue which they had granted on the basis of the Council’s authorisa- tion decisions. The Court concluded that the contested decision breached the principle of legal certainty and the principle of the presumption of legality attaching to European Union measures. Case T-139/09 France v Commission (judgment of 27 September 2012, not yet published) raised, in particular, the question whether measures intended to support the fruit and vegetable market in France could be categorised as State aid in view of the fact that they were financed in part by voluntary contributions from persons operating in that sector. In that regard, the Court observed that the relevant criterion for the purpose of assessing whether the resources are public, whatever their origin, is that of the degree of intervention of the public authority in the definition of the measures in question

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2004

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2004

which concerned the Finnish legislation on the taxation of dividends. Under that legislation a person holding shares in a domestic company receives, in addition to the dividend, a tax credit in proportion to the corporation tax paid by the undertaking. The tax credit is offset against tax on the dividend, so that in practice the shareholder has no further tax to pay on his dividend. By contrast, the right to benefit from a tax credit is excluded in the case where the company is established in another Member State. Such a system, the end result of which is that dividends are no longer taxed in the hands of the shareholder, left the Court in no doubt that it involved a restriction on the free movement of capital within the meaning of Article 56 EC inasmuch as it applied solely in favour of dividends paid by companies established in Finland, even though, as the Court pointed out, direct taxation falls within the competence of the Member States. That system disadvantaged persons receiving dividends from companies established in other Member States by deterring them from investing in such companies and thereby had a restrictive effect as regards those companies in that it constituted an obstacle to their raising capital in Finland. As regards possible justification for that restriction, the Court rejected the argument based on Article 58(1)(a) EC, which authorises different treatment of taxpayers who are not in the same situation with regard to the place where their capital is invested. That derogation, the Court pointed out, had to be interpreted strictly and was itself limited by Article 58(3) EC, which is directed at arbitrary discrimination and disguised restrictions. In order for a difference in treatment to be capable of being classified as unequal treatment which is permitted under Article 58(1) EC rather than as arbitrary discrimination which is prohibited by Article 58(3) EC, that difference in treatment must also concern situations which are not objectively comparable or be justified by overriding reasons in the general interest, such as the need to safeguard the cohesion of the tax system. In addition, it must comply with the principle of proportionality.

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2007

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2007

12(1) and of Annex IV(a) to that directive, wolves are one of the animal species in need of strict protection. However, Article 16 of the directive provides for exceptional arrangements derogating from those prohibitions. By virtue of the provisions of domestic law transposing that article, the Finnish authorities have every year issued wolf-hunting permits by way of derogation. The Court noted irst of all that it is settled case-law that even if the applicable national legislation is in itself compatible with Community law, a failure to fulil obligations may arise due to the existence of an administrative practice which infringes that law, provided that that practice is, to some degree, of a consistent and general nature. It then found that Article 16 of the directive, in so far as it provides for an exception, must be interpreted strictly and must impose on the authority taking the decision the burden of proving that the necessary conditions are present for each derogation. In those circumstances, the Member States are required to ensure that all action afecting the protected species is authorised only on the basis of decisions containing a clear and suicient statement of reasons which refers to the reasons, conditions and requirements laid down in that article. The favourable conservation status of the populations of the species concerned in their natural range constitutes a necessary precondition for the grant of the derogations provided for. The grant of such derogations is possible by way of exception only where it is duly established that they are not such as to worsen the unfavourable conservation status of those populations or to prevent their restoration at a favourable conservation status, the objective referred to in Article 16 of that directive. It is possible that the killing of a limited number of wolves, even if some of them may cause serious damage, may afect that objective. The Court concluded that a Member State which authorises wolf hunting on a preventive basis without its being established that the hunting is such as to prevent serious damage has failed to fulil its obligations under Directive 92/43.

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2006

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2006

held that a finding that the duration of the procedure was excessive, and could not be imputed to the undertakings concerned, can entail annulment, on the ground of a breach of that principle, of a decision finding an infringement only if that duration, by adversely affecting the undertakings’ rights of defence, was able to influence the outcome of the proceedings. The Court further observed that examination of any interference with the exercise of the rights of the defence owing to the excessive duration of the administrative procedure cannot be limited solely to the second phase of that procedure, but must also cover the phase preceding notification of the statement of objections and, especially, determine whether that excessive duration was capable of affecting the ability of the undertakings concerned to defend their rights in future. In the same two cases, the Court further held, on the basis of its case-law according to which the existence of an anti- competitive practice or agreement must in most cases be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules, that the fact that evidence of the existence of a continuous infringement had not been produced for certain specific periods did not preclude the infringement from being regarded as established during a longer overall period than those periods provided that such a finding was supported by objective and consistent indicia. Last, the Court also recalled in those judgments that, for the purposes of the application of Article 81(1) EC, where the various actions form part of an ‘overall plan’, owing to their identical object, which distorts competition within the common market, the Commission is entitled to impute liability for those actions according to participation

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2003

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2003

for decisions of commercial undertakings concerning the undertaking's winding-up, demerger or merger, the disposal or charging of the assets or shareholdings necessary for the attainment of the undertaking's object, a change in the undertaking's object, and dealings in the share capital which result in the State's shareholding in the undertaking being reduced. The second judgment concerns aspects of the scheme for privatising the British Airports Authority with regard to limiting the possibility of acquiring voting shares in BAA and to the procedure requiring consent to disposal of the company's assets, to the control of subsidiaries and to the company's winding-up. Following the case-law referred to above, the Court rejected the argument that there was no discrimination against nationals of other Member States on the ground that the prohibition laid down in Article 56 EC goes beyond the mere elimination of unequal treatment, on grounds of nationality, as between operators on the financial markets. The restrictions in question affected the position of a person acquiring a shareholding as such and were thus liable to deter investors from other Member States from making such investments and, consequently, affect access to the market. In the BAA judgment, the Court further held that the restrictions at issue did not arise as the result of the normal operation of company law, since the Member State acted in its capacity as a public authority. Consequently, the rules at issue constituted a restriction on the movement of capital for the purposes of Article 56 EC, and, by maintaining them in force, the United Kingdom failed to fulfil its obligations under that provision. In Commission v Spain, having held that there was a restriction on movements of capital (paragraph 62), the Court examined whether

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Report from the Commission on the application in 2007 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents. COM (2008) 630 final, 10 October 2008

Report from the Commission on the application in 2007 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents. COM (2008) 630 final, 10 October 2008

The Court of First Instance annulled in part the Commission decision refusing access to pleadings lodged by it in various sets of proceedings before the Court of Justice and the Court of First Instance. The Court ruled that, in cases where the hearing had not yet taken place, the “court proceedings” exception applied without the institution having to carry out a concrete examination of each document concerned. On the other hand, after the hearing had been held, the Commission was under an obligation to carry out a concrete assessment of each document requested in order to ascertain, having regard to the specific content of that document, whether it could be disclosed or whether its disclosure would undermine the court proceedings to which it related. If access were refused, a specific statement of reasons demonstrating the risk should be provided.

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2008

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2008

In Case C-199/06 Centre d’exploitation du livre français [2008] ECR I-469, the Court held that, while Community law requires the national court to order the measures appropriate to remedy effectively the consequences of unlawfulness, it does not impose an obligation, even in the absence of exceptional circumstances, of full recovery of unlawful aid. According to the Court, the last sentence of Article 88(3) EC is based on the preservative purpose of ensuring that only compatible aid will be implemented. In order to achieve that purpose, the implementation of planned aid is to be deferred until any doubt as to its compatibility is resolved by the Com- mission’s final decision. When the Commission adopts a positive decision, it is then apparent that that purpose has not been frustrated by the premature payment of the aid. However, in that case, from the point of view of operators other than the recipient of such aid, the fact that the aid was unlawful when it was paid will have had the effect of, first, exposing them to the risk, in the event unrealised, of the implementation of incompatible aid, and, second, making them suffer, depending on the circumstances, earlier than they would have had to, in compe- tition terms, the effects of compatible aid. From the aid recipient’s point of view, the undue advantage will have consisted, first, in the non-payment of the interest which it would have paid on the amount of the compatible aid in question, had it had to borrow that amount on the market pending the Commission’s decision, and, second, in the improvement of its com- petitive position as against the other operators in the market while the unlawfulness lasted. It is for that reason that the national court must, applying Community law, order the aid recipi- ent to pay interest in respect of the period of unlawfulness. The Court stated in addition that, within the framework of its domestic law, the national court may, if appropriate, also order the recovery of the unlawful aid, without prejudice to the Member State’s right to re-implement it subsequently. The national court may also be required to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid.

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2010

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2010

to various successive economic units during the course of the infringement, it cannot be said to be necessarily inappropriate for the combined value of the amounts ascribed to the parent companies to be greater than the amount, or combined amounts, ascribed to the subsidiary. However, the Court held that the contested decision was wrong to confer on the Commission an unfettered discretion to recover the fine from one or other of the legal persons concerned accord- ing to their ability to pay. That discretion means that the amount actually recovered from the ap- plicant will depend on the amounts recovered from the former parent companies, and vice versa, although those companies have never formed a common economic unit and are not therefore joint and severally liable. The Court added that the principle that penalties should fit the individual offence requires that the amount actually paid by the applicant does not exceed its share of its joint and several liability, a share that corresponds to the proportion of the fine imposed on the applicant relative to the cumulative total of the limits up to which the successive parent compa- nies are jointly and severally liable for payment of the fine imposed on the subsidiary. In the case in point, the Court held that the decision was inconsistent with the obligation which rests upon the Commission to enable the applicant to know for certain the exact amount which it must pay in respect of the period for which it is held jointly and severally liable with its subsidiary for the in- fringement. Consequently, the Court partially annulled that decision and set the amount ascribed to Trioplast Industrier at EUR 2.73 million, that amount being the basis on which the Commission will have to determine the applicant’s share in the joint and several liability of the successive par- ent companies for payment of the fine imposed on their subsidiary.

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2011

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2011

appropriate remuneration and not the highest possible remuneration for the commercial exploi- tation of the protected subject-matter, such safeguarding is ensured where reception of a satellite broadcast requires possession of a decoding device and where, consequently, it is possible to determine with a very high degree of precision the total number of viewers who form part of the actual and potential audience of the broadcast concerned, hence of the viewers residing within and outside the Member State of broadcast. Moreover, the premium paid by broadcasters in order to be granted territorial exclusivity is such as to result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference are irrecon- cilable with the fundamental aim of the Treaty, which is completion of the internal market. Next, reference should be made to Case C-347/09 Dickinger and Ömer (judgment of 15 Septem- ber 2011), which confirms and clarifies the Court’s case-law concerning monopolies in respect of the operation of games of chance. The Court recalled that, although a monopoly over games of chance constitutes a restriction on the freedom to provide services, such a restriction can, however, be justified by overriding reasons in the public interest such as the objective of ensur- ing a particularly high level of consumer protection, this being a question for the national court. Regarding, in particular, the possibility for the holder of the monopoly to pursue an expansionist commercial policy, the Court stated that, to be consistent with the objective of fighting crime and reducing opportunities for gambling, national legislation establishing a monopoly over games of chance must, first, be based on a finding that the crime and fraud linked to gaming and addiction to gambling are a problem in the Member State concerned which could be remedied by expand- ing authorised regulated activities, and second, allow

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Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2009

Synopsis of the work of the Court of Justice and of the Court of First Instance of the European Communities. Annual report 2009

alleged was not irreparable and was not sufficiently serious as it represented less than 1% of the worldwide turnover of the group to which the applicant companies belonged. While, in the sev- enth order, made in United Phosphorus, the President of the Court accepted that serious and irrepa- rable harm was imminent, he did so because of the particular circumstances of the case, namely the deep crisis from which the world economy had been suffering for months and which was af- fecting the value of numerous undertakings and their capacity to secure liquidity. The group to which the applicant belonged had lost much of its value, which showed that the damage alleged was serious. While acknowledging that the mere possibility of bringing an action for damages is sufficient to show that financial harm is in principle reparable, the President of the Court added that he is not obliged to apply the relevant conditions ‘mechanically and rigidly’, but must deter- mine, in the light of the circumstances of the case, the manner in which urgency is to be verified. In the case in point, the President of the Court took account in particular of the fact that, in parallel with the administrative procedure that had led to the decision prohibiting the products at issue, the applicant had resubmitted its application for authorisation of those products, under a newly created accelerated procedure that was capable of being concluded only a few months after the date imposed for the withdrawal of the products from the market and in the framework of which it was able to present all of the scientific data alleged to have been improperly neglected in the procedure that had led to the decision prohibiting the products. The President of the Court stated that it would be unreasonable to allow the prohibition of the marketing of a product in respect of which it was not improbable that its marketing would be authorised only a few months later. Also, a number of factors indicated

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Managing migratory flows and the respect of fundamental rights  A case study on the cooperation between the EU and Libya

Managing migratory flows and the respect of fundamental rights A case study on the cooperation between the EU and Libya

. Lauterbach and Bethlehem (2003) give a far more detailed description of both the scope and content of the principle. They give a general explanation concerning the interpretation and application of the principle. Lauterbach and Bethlehem draw up three different parts of which the principle consists. The first one is that non-refoulement applies to anybody who has a well-founded concern that they may be to be the subject of abuse in their home-country; in this case other states are not allowed to return the individual (2003, p. 115). Secondly states must carry out individual assessments of claims and verify them (2003, p. 118). The third point is that persons claiming that they are in need of international protection cannot be sent back to a territory that is unsafe for them (2003, p. 121). Additionally individuals may also not be sent back to a state which later on might expel the person to an unsafe territory. An example for this can be seen in the case of Adnan 10 , which saw a Somali and an Algerian national who were both seeking asylum in the UK not returned to France and Germany even though they were their states of entry. The reason for this was that neither Germany not France accepted the asylum claims of the applicants as they were not threatened by their countries governments but by private organisations. Returning the applicants to Germany and France would then have been an indirect violation of the non-refoulement principle as the UK actually recognized the threat that was posed to the applicants by private organisations. The principle of non-refoulement has multiple legal sources which are all concerned with guaranteeing that states have the obligation not to expel people whose legal protection cannot be guaranteed if they are returned to either their country of origin or their transit country. It appears in different treaties and this is linked to the fact that it is applicable in different factual situations. International protection is then granted according to each treaty. Generally the objective is always to protect individuals from different forms of persecution.

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The Court of Justice of the European Union: International or Domestic Court?

The Court of Justice of the European Union: International or Domestic Court?

This article discusses how the Court of Justice of the European Union (CJEU ) deals with international law issues. While the EU and the Court itself are often presented as being `friendly' towards international law, recent cases have shown a trend towards a more guarded approach by the Court. The article first examines recent literature on the CJEU's relationship with international law which demonstrates an oscillation between `openness' towards international law and an approach that emphasises the autonomy of the EU legal order. It then discusses what rules exist to guide the Court in determining its relationship with international law. To what extent do the EU Treaties, the legal traditions of the Member States or international law itself determine how the CJEU should deal with international law issues? The next part examines how the CJEU has dealt with international law in practice. The CJEU has progressively developed tools to limit the effect of international law, as it attempts to strike a balance between respect for international law and the need to safeguard the integrity of the EU legal order. It discusses some recent cases where the CJEU dealt with key international law issues in order to demonstrate how this relationship is shaped in practice. The final part seeks to understand why the Court seems to oscillate between an open and a closed approach to international law. It is posited that this can partly be explained by whether the Court is acting in its capacity as an international or a domestic court.

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17th Report on better lawmaking 2009. Report from the Commission on subsidiarity and proportionality. COM (2010) 547 final, 8 October 2010

17th Report on better lawmaking 2009. Report from the Commission on subsidiarity and proportionality. COM (2010) 547 final, 8 October 2010

The European Parliament proposed amendments which added to the level of ambition including a condition that from 2019 new buildings would have to be 'zero-energy' 27 . In Council, several Member States were concerned that the level of ambition was too high and that "several amendments proposed by the European Parliament appear at first sight to be overly ambitious and unrealistic" 28 . They considered that the definition of low and zero carbon buildings and the quantitative targets raised subsidiarity issues and entailed further costs and disproportionate administrative burdens. A compromise was agreed in November 2009: all new buildings should comply with high energy-performance standards and supply a significant share of their energy requirements from renewable sources after the end of 2020. It is up to each Member State to define the standards for achieving these objectives.

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