The British House of Lords Committee on the EU has published an excellent and well researched report on how the EC institutions examine draft legislation to ensure compatibility with human rights and the Charter of Fundamental Rights in particular. You can download the report here. Watch out though, it is nearly 50 pages long.
Part of the report is descriptive. Look at the bit, around page 15, on how the rights of the defense will be incorporated in the new draft customs code, for instance. It also contains some interesting recommendations.
It's all go at the Commission's DG Competition. Today, they have started public consultations on the facilitation of enforcement actions to obtain damages for infringements of the EC antitrust rules. A web page explains what it is all about.
The Commission has adopted a new proposal - Com(2005) 694 for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. It seeks to complement Council Regulation (EC) n° 2201/2003 of November 27th, 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility which expressly excludes maintenance obligations from its scope.
The Commission has also proposed to the Council that it takes a decision so that measures relating to maintenance obligations taken under Article 65 EC can be governed by the procedure laid down in Article 251 EC. The problem is that the second indent of Article 67(5) EC, as amended by the Treaty of Nice, makes a distinction within the general field of judicial cooperation in civil matters, as the measures provided for by Article 65 are taken by the codecision procedure of Article 251, “with the exception of aspects relating to family law”. Thus, there are two procedural arrangements available since February 1st 2003, when the Treaty of Nice came into force: Codecision, - the standard procedure, and adoption by the Council, acting unanimously after simply consulting the European Parliament, that being the exceptional arrangement for “measures” containing “aspects relating to family law”.
The fact that the proposal on maintenance obligations concerns a family matter means that Community legislation specifically devoted to those obligations “relate to” family law within the meaning of the second indent of Article 67(5) EC and thus fall outside the ordinary law on judicial cooperation in civil matters, where the codecision procedure applies. The consequence is a pain. While maintenance
obligations “relate to” family law, they are but a small component of a larger set. Once its existence is acknowledged and confirmed by a court judgment or similar formal act, a maintenance obligation is a claim and is subject to legal rules that differ very little from the general rules governing asset-related claims. The remedy is for the Council, pursuant to the second indent of Article 67(2) EC, acting unanimously after consulting the European Parliament, to take a decision with a view to providing for all or parts of the areas covered by Title IV of Part Three of the Treaty to be governed by the procedure referred to in Article 251. As a result, it is possible to transfer maintenance obligations from the unanimity to the codecision procedure. So that is what the Commission has proposed should be done.
France and Hungary have recently made declarations accepting the jurisdiction of the Court of Justice to give preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union (TEU). Those are the acts adopted under Title VI of that Treaty dealing with police and judicial cooperation in criminal matters. You can find information on those new declarations in the Official Journal here.
Article 35 § 1 of the TEU confers jurisdiction on the Court of Justice to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under Title VI and on the validity and interpretation of the measures implementing them. But, each member State must make a declaration under Article 35 §2 expressly accepting that jurisdiction. So far, 14 of the 25 member States have done so. When a member State makes such a declaration, it must specify - according to Article 35 § 3 TEU - whether only national courts or tribunals against whose decisions there is no judicial remedy under national law may request a preliminary ruling (under Article 35 § 3 (a)) or whether any national court or tribunal may do so (under Article 35 § 3 (b)).
Of those 14 member States, 9 have informed that their courts of last resort will, according to national law, be under an obligation to refer a question relating to the validity of an act referred to in Article 35 §1 TEU. Those 9 States are identified in the list below as "obliged to refer" and a link is give to the relevant notice.
So the situation for each member State that has accepted jurisdiction is as follows:
The Commission has adopted and made public its proposal - COM(2005)650 final for a Regulation of the European Parliament and Council on the law applicable to contractual obligations.
The idea is to turn the 1980 Rome Convention on the law applicable to contractual obligations into a regulation based on Article 61(c) of the EC Treaty. That way, national courts of last resort can refer questions to the Court of Justice for its interpretation. Remember that the protocols conferring that jurisdiction on the Court to interpret the Rome Convention never entered into force.
Not only is there a change of form - from convention to regulation - but there are a number of substantive revisions too. For instance, it is proposed to change article 3 on the choice of law made by the parties so that the courts will have to ascertain the true tacit will of the parties rather than a purely hypothetical will: The conduct of the parties should be taken into account. An important innovation is the new proposed Article 3 § 2 which allows the parties also to choose as the applicable law the principles and rules of the
substantive law of contract recognised internationally or in the Community. Thus, the parties can choose as the applicable law a non-State body of law including the UNIDROIT principles, the Principles of European Contract Law or a possible future optional Community instrument, while excluding the lex mercatoria, which is not precise enough, or private codifications not adequately recognized by the international community. Like Article 7 § 2 of the Vienna Convention on the international sale of goods, the proposal indicates what action should be taken when certain aspects of the law of contract are not expressly settled by the relevant body of non-State law.
An interesting refinement is to be found in the proposed Article 8 §1 which defines "international mandatory provisions" for the purposes of Article 8 and which is inspired by the Court of Justice’s judgment in Joined cases C-369/96 and C-376/96 Arblade. Paragraph 31 of that judgment states
The fact that national rules are categorised as public-order legislation does not mean that they are exempt from compliance with the provisions of the Treaty; if it did, the primacy and uniform application of Community law would be undermined. The considerations underlying such national legislation can be taken into account by Community law only in terms of the exceptions to Community freedoms expressly provided for by the Treaty and, where appropriate, on the ground that they constitute overriding reasons relating to the public interest.
Mandatory rules are rules the respect for which is regarded as crucial by a country for safeguarding its political, social or economic organisation to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.
The proposal is accompanied by a short explanatory memorandum which sheds a little light on the whole thing. Of course, it must now be adopted by the European Parliament and by the Council.
Please accept our apologies, Dear Readers, for the unavailability of the blog at the end of the week. Typepad, the blog host, faltered and crashed. The problem seems to be fixed now and things running smoothly. Thanks for your patience and for returning.... Without you, it just isn't worthwhile.
That means the Tribunal is operational as from December 12th, 2005, the day of publication of the decision.
Here's the notice on the constitution and composition of the Chambers, election of their Presidents and assignment of the Judges to Chambers of the Tribunal. And here are the notices concerning the criteria for the assignment of cases to Chambers, the designation of the Judge replacing the President of the Tribunal as Judge hearing applications for interim measures and the appointment of the Registrar.
The Court held that the Commission was right to decide that the merger would create or strengthen dominant positions as a result of which effective competition would be
significantly impeded on the market for jet engines for large regional aircraft, the market for engines for corporate jet aircraft and the market for small marine gas turbines.
But the Court found quite a bit wrong with the Commission's decision. Amongst other things it found that the Commission's theory on "bundling" - on which the Commission was particularly keen - was without foundation. The Commission failed to establish that the merged entity would have bundled sales of GE’s engines with Honeywell’s avionics and non-avionics products. In the absence of bundled sales, the fact that the merged entity would have had a wider range of products than its competitors was not sufficient to establish that dominant positions would have been created or
strengthened for it on the different markets concerned. That error, added to the others which the Court of First Instance analyses, was just not quite enough to result in the annulment of the decision.
One gets a funny feeling reading the judgments that the result was a close run thing and it could easily have turned out differently. For example, apart from the merger stuff - and there's lots of it - the judgment in Case T-209/01 contains some interesting procedural points. Honeywell failed to plead its case in full and merely referred to the separate case brought by General Electric in the hope that a simple cross reference would be sufficient. The Court rejected that attempt to circumvent the rule that each case must be pleaded "coherently and intelligibly" and that a general reference to other documents cannot make up for the absence of the essential submissions in law which, in accordance with Article 21 of the Statute of the Court of Justice and Article 44(1) of the Rules of Procedure of the Court of First Instance, must appear in the application. Hmmm. You can't help but wonder.....