Author Archives: Xavier

Case C-562/13 Moussa Abdida: Return of illegal immigrants and proper judicial remedy with suspensive effect

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Back in December 2014 – on the same day as it gave its Opinion on EU accession to the European Convention on Human Rights which we noted up here – the Court of Justice handed down an interesting judgment in Case C-562/13 Moussa Abdida, EU:C:2014:2453, on what sort of judicial remedies should be available to a third-country immigrant who has been declared to be staying illegally to challenge that declaration when he claims he needs to stay to get medical treatment.

The Court held that such an immigrant must be able to challenge the decision to send him back to his country of origin with suspensive effect and must also, in the meantime, get social assistance to cover his basic needs pending his appeal.

The judgment shows how the Court is willing to interpret the provisions of EU law in such a way that they comply with the Charter of Fundamental Rights and with the European Convention on Human Rights.

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Case T-140/12 Teva Pharma BV v EMA and Commission : New pleas and objection of illegality

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Proceduralists will love the judgment of the General Court of 22 January 2015 in Teva Pharma BV v European Medicines Agency (EMA) and Commission, T-140/12, EU:T:2015:41. Two interesting procedural points came up:

  1. when can a new plea be adduced by the Applicant in the course of the litigation, and
  2. what sort of measures can be the subject of an objection of illegality pursuant to Article 277 TFEU.

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Case C-411/14 P Romano Pisciotti v Commission: Infringement actions, extradition and private complainants

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A reminder, in unusual circumstances, that individual cannot compel the Commission to commence infringement proceedings against a Member State pursuant to Article 258 TFEU. That is what the Court of Justice recalls in its Order in Case C-411/14 P Romano Pisciotti v Commission EU:C:2015:48. The case was a little different ….

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Case T-355/13 easyJet Airline Co. Ltd. v Commission: Complaints, Abuse and National Competition Authority

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The judgment of the General Court of 21 January 2015 in EasyJet Airline Co. Ltd. v Commission, T-355/13, EU:T:2015:36, contains some interesting things about:

  • the Commission’s discretion to reject complains about breaches of the competition rules and judicial review of that discretion on the one hand and how the Commission and
  • how national competition authorities interact in the framework of the “European Competition Network” on the other.

A few facts first.

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Case T-479/14 Kendrion v EU (Court of Justice): Damages, duration of judicial proceedings, appropriate defendant.

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The General Court handed down an order recently in Case T-479/14 Kendrion NV v EU represented by the Court of Justice, EU:T:2015:2. It finds that the Court of Justice is the right defendant in an action for damages in a claim for compensation for the loss and damage caused by unreasonable delay in judicial proceedings in the General Court.

A rich and spicy situation ! The General Court dismissing an inadmissibility plea by the Court of Justice.

Here’s some explanation and background how such a situation can arise.

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Case C-470/13 Generali: Public procurement, exclusion for a previous breach of competition rules

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Can an undertaking which has breached national competition law in the past be excluded from a public tendering procedure ?

Yes, answers the Court of Justice in its recent judgment in Generali-Providencia Biztositò Zrt, Case C-470/13, EU:C:2014:2469.

That is an interesting enough point, of course. The judgment is also of interest because the Court seems to take a softer line than usual concerning the admissibility of the question and the lack of cross-border interest in the case as present by the national court.

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Case C-413/13 FNV Kunsten Informatie en Media Case: Limits of competition law, collective agreements and the self-employed

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The Court of Justice’s recent judgment in FNV Kunsten Informatie en Media Case v Staat der Nederland C-413/13 EU:C:2014:2411 is the latest in a line of cases that exclude collective agreements from the application of EU competition law and in particular from Article 101(1) TFEU.

In this case, there was a rather peculiar twist in the facts which lead the Court to adopt a cautious approach. It led the Court to distinguish between “workers”, “self employed” persons who are usually considered to be “undertakings” and “false self employed” who are more like workers.

A trade union representing musicians negotiated a collective agreement with an organisation representing orchestras in the Netherlands.  Not only were salaried, employee musicians covered by the agreement, but it was negotiated on behalf of independent, self employed musicians also. Thus the Court was faced with the question whether a provision of a collective labour agreement, which sets minimum fees for self-employed service providers who are members of one of the contracting employees’ organisations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, does not fall within the scope of Article 101(1) TFEU.

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Opinion 2/13: EU accession to the ECHR

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The big news is that on 18 December 2014 the Court of Justice has handed down its second negative opinion in Opinion 2/13 EU:C:2014:2475 on the  accession of the EU to the European Convention on Human Rights.

Back in 1996 the Court had decided in Opinion 2/94 that there was no legal basis in the Treaty at that time for the EU to accede (see the summary of the submissions in that case  and the opinion of 28 March 1996). As a consequence of that opinion, Article 6(2) TEU was added to provide a legal basis and states:

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

The EU and the Council of Europe then spent some time negotiating an agreement between them allowing for accession to the Convention.  Once that was done, the Commission asked the Court of Justice, pursuant to its jurisdiction under Article 218 (11) TFEU: “Is the draft agreement providing for the accession of the [EU to the ECHR] compatible with the Treaties?”

The Court’s answer is “no”.

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Call for papers: Cahiers de droit européen

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Our friends on the editorial board of the Cahiers de droit européen, the leading French language journal on EU law, have kindly asked us to publicise their call for papers for the special issue of the journal.

Here it is…. so warm up your word processors, typewriters, pens or whatever you use and start writing:

Call to contribute papers for the 50-year anniversary of

Cahiers de droit européen

On the occasion of its 50-year anniversary, Cahiers de droit européen is organising a conference on the General principles of European Union law, to be held in Brussels on 10 September 2015. The Board of Editors is inviting submissions. All selected papers will be published in a special issue of the review.

The first part of the conference will touch upon horizontal issues raised by general principles of EU Law. General principles played a crucial role in the construction of the legal order of the Community, and later of the Union. They enabled e.g. the development of the law of non-contractual liability of the Union and were for a long time the only legal tool ensuring the protection of fundamental rights.

Many general principles were explicitly anchored in primary law, through successive reforms of the treaties. The ‘codification’ in the treaties of a certain number of principles of an institutional nature, as well as the entry into force of a binding version of the Charter of fundamental rights of the Union, are good illustrations of this phenomenon. However, this does not mean that general principles have disappeared as a source of law, nor that they are no longer useful. Recent case-law of the Court bears testimony to this, notably as regards the combined effect of certain general principles and directives or as regards horizontal direct effect of the Charter. We would therefore welcome original contributions relating to the status, the scope and the usefulness of general principles in the Union’s legal order.

The second part of the conference will examine specific principles that can be grouped into the three following categories:

  • Principles of loyal cooperation and institutional balance (institutional principles) ;
  • Principle of non-discrimination (substantive principle) ;
  • Rights of defence and right to an effective remedy and to a fair trial (procedural principles).

Proposals for papers, of a length of maximum 2000 words, should contain a summary presentation in French or English as well as the main references to case-law. The proposal should specify to which of the above issues it relates.

Submissions should be sent to Mrs. Anne Vallery, Secretary to the Board of Editors (anne.vallery@vvgb-law.com), before 1 March 2015. Summary presentations will be reviewed and selected by a scientific committee. Authors will receive an answer no later than 20 April 2015. The selected summaries will be published in a brochure that will be communicated to all conference participants.

Final contributions should be sent to the Cahiers no later than 15 November. They will be published in the first issue of the 2016 volume.

Reasonable costs of intra-European travel and accommodation will be reimbursed for invited speakers.

The Board of Editors

Case C-611/12 P and Joined Cases C-12/13 P and C-13/13 P: Damages and no fault liability

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Every now and again, the idea pops up that the EU Institutions should be liable in damages for their legislative activities on a no fault basis. The Court of Justice handed down two judgments in October 2014 one of which expressly deals with that issue. The judgments in Case C-611/12 P Giordano v Commission, EU:C:2014:2282, and in Joined Cases C-12/13 P and C-13/13 P Buono and others v Commission, EU:C:2014:2284, are interesting not just for that reason but because they address several issues:

  • Whether the EU institutions could be liable to pay damages because of measures they had adopted that were legal and thus be liable without fault;
  • Whether the fishing ban could result in “actual and certain” harm;
  • Whether a judgment of the Court of Justice constituted a new element of law, and
  • Whether the oral proceedings should be reopened after the Advocate general had delivered his opinion.

Let’s look at each of those aspects of the case in turn. But first, here’s what happened. Continue reading →