Category Archives: Preliminary reference

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 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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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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Case C-394/14 Sandy Siewert v Condor Flugdienst: compensation for flight delays, super fast preliminary reference

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Here’s a rather amusing case. Well, the way the Court of Justice dealt with the case will make folks who have been left stuck in airports smile. What actually happened to the plaintiffs in the main proceedings was not so funny.

In Case C-394/14 Sandy Siewert and others v Condor Flugdienst, EU:C:2014:2377, the Court of Justice handed down swift and decisive justice. In just under three months, the Court handed down an order responding to a reference from a national court to the effect that the plaintiffs in the national proceedings were indeed entitled to compensation under Regulation 261/2004 because their had been delayed for more than six hours. That’s right: question received by the Court of Justice on 18 August 2014, answer given on 14 November 2014. Bang !

Here’s what happened. Continue reading →

Judicial cooperation in criminal matters, jurisdiction of the Court and end of the transitory period

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Today, 1st December 2014, marks the fifth anniversary of the entry into force of the Lisbon Treaty. More particularly, 1st December 2014 is an important date for the jurisdiction of the Court of Justice in respect of judicial cooperation in criminal matters. The 5 year transitional period laid down in Article 10 (1) of Protocol 36 to the TEU and TFEU comes to an end. Consequently from now on the Court of Justice can exercise its normal jurisdiction to answer preliminary references from national courts in respect of measures adopted by the EU before the entry into force of the Lisbon Treaty. Also, the Commission can take infringement proceedings against Member States in this field from now on.  Continue reading →

Case C-112/13 A v B and Others – Primacy, preliminary rulings, national constitutional law and national courts

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Back on 11 September 2014 (how time flies !) the Court of Justice handed down an interesting judgment in Case C-112/13 A v B and Others in a rather unusual case. It dealt with the role – and duty – of the national court when faced with national legislation which seemed incompatible with both EU law and with the national constitution.

Indeed, the Court of Justice had some really interesting to say about how national courts should ensure the primacy of EU law. It builds on the important judgment in Melki and Abdeli C‑188/10 and C‑189/10, EU:C:2010:363. The case turned on substance on the interpretation of Council Regulation (EC) no 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. I won’t deal with the substance issues, leaving them to our friends at the excellent Conflict of Laws blog. Just the primacy issue here.

 

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Case E-26/13 Gunnarsson: Directive 2004/38 – Free movement

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Here is an interesting judgment coming from the EFTA Court in Case E-26/13 The Icelandic State v Atli Gunnarsson on 27 June 2014.

The case concerned Mr. Gunnarsson and his wife, Icelandic citizens, who resided in Denmark from 24 January 2004 to 3 September 2009. At the time, the couple’s total income consisted of unemployment benefit that Mr Gunnarsson’s wife received in Iceland and of Mr Gunnarsson’s own disability benefit together with benefit payments he received from two Icelandic pension funds. Mr Gunnarsson paid taxes on his income in Iceland, and claimed that he was overcharged in the period from 1 May 2004 to 1 October 2009 because he was prevented from utilising his wife’s personal tax credit while they resided in Denmark. Under the Icelandic tax legislation applicable at the time, the couple had to reside in Iceland for Mr Gunnarsson to be entitled to utilise his wife’s personal tax credit in addition to his own.

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Freedom to provide maritime transport services – The judgment in Case C-83/13 Fonnship

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The Court of Justice (“the Court”) has given its judgment in Case C-83/13 Fonnship A/S v Svenska Transportarbetareförbundet and Others today. The case concerned the question whether a vessel flying a third-country flag (Panamanian in this case) can benefit from the freedom to provide maritime transport services on the basis of Regulation No 4055/86 on the freedom to provide maritime transport services (“the Regulation” or “Regulation No  4055/86).

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Case C-56/13 Érsekcsanádi Mezőgazdasági Zrt: EU measures, national measures and the right to damages

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The judgment of the Court of Justice in Case C-56/13 Érsekcsanádi Mezőgazdasági Zrt illustrates the reach and the limits of EU law and its principles, in particular the right to compensation.

To see those limits, you need a little patience to go through the salient facts. Continue reading →