EU Law Blog

Court Statistics for 2007

We should have spotted this earlier but didn't. Sorry about that.

The Court of Justice has recently published its statistics for 2007 in a press release.

There's cause for celebration and cause for concern too.

Things at the Court of Justice are looking pretty good. It received the highest number of new cases ever in 2007 - 508 - (except for 1979 when it took on 1,324 new cases but many of those were related action) and dealt with 551 cases in 2007 compared with 503 in 2006 (taking account of the joinder of cases). The important thing is that the average duration of preliminary ruling proceedings was 19.3 months in 2007, as against 23.5 months in 2004. In 2007 the average time taken to deal with references for a preliminary ruling reached its shortest since 1995.

Interestingly, the Court made significantly more frequent use of the possibility of judging cases without an Opinion of the Advocate General since about 43% of the judgments delivered in 2007 were delivered without an Opinion (33% in 2006).

At the Court of First Instance, however, things are not so rosy. Case load has increased significantly, for a start: 522 cases were brought in 2007, compared with 432 in 2006. The number of cases completed went down (397 in 2007 as against 436 in 2006). The press release states:

Conscious of this situation, the Court of First Instance has embarked upon detailed consideration of its operation and working methods in order to improve its efficiency. In this context, it has already been considered necessary to alter the way in which the Court is organised, in particular so as to derive greater advantage from the increase in the number of its Members. Thus, since 25 September 2007 the Court has comprised eight Chambers, of three Judges or, where the importance of the case so justifies, five Judges (extended composition).

All this has to be seen in the light of the discussions on the creation of specialist tribunals to speed things up, such as a Competition tribunal.

For last year's statistics, see here.

Van Gend en Loos Revisited

Here's an interesting article by Professor Daniel Halberstam of Michigan Law School that discusses Case 26-62 Van Gend en Loos and Marbury v. Madison.

This is what the abstract says:

The European Court of Justice's landmark decision in Van Gend en Loos is often casually compared to Marbury v. Madison simply because in each case a central high court declares itself to be the final arbiter of central government law. But there is a good deal more to the comparison than this. Both cases serve up what is perhaps the single most profound and complex issue in their respective constitutional systems: multiple competing claims of ultimate legal authority. In addressing this issue, both decisions make important claims for central judicial authority. And yet, neither decision successfully establishes a central judicial monopoly over final legal authority. Instead, both decisions inaugurate a tradition of mutual accommodation among the competing actors lasting to this very day. By juxtaposing accommodation in the two systems, we may understand these practices better than if we limit ourselves to only one or the other legal order. In particular, we recognize that actors in both systems rely on considerations of voice, expertise, and rights to manage the pluralist standoff.

You can download it here.

Well worth reading.

Jurisdiction of the Court of Justice in Police and Criminal Matters: Article 35 TEU

Back in December 2005, we noted here the state of play on 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.

There have been new declarations by Hungary, Latvia, Lithuania and Slovenia. See also the notice from the Council about them.

Latvia, Lithuania and Slovenia now accept the jurisdiction of 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. Moreover, they have declared that any of their national courts or tribunals may refer questions (under Article 35 § 3 (b)).

Slovenia has accepted that its courts of last resort are obliged to refer preliminary questions to the Court of Justice (under art. 35 §1).

Hungary, for its part, has withdrawn its previous declaration in which it accept the jurisdiction for its courts of last resort only (under art. 35 §3(a)).

For ease of reference (and because nobody else seems to have taken the trouble), the current situation for each member State that has accepted jurisdiction is as follows:

Austria: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Belgium: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Czech Republic: Any court (art. 35 §3(b)) - declaration here (at p. 980) - Obliged to refer (at p. 980).

Finland: Any court (art. 35 §3(b)) - declaration here.

France:Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Germany: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Greece: Any court (art. 35 §3(b)) - declaration here.

Hungary: Any court (art. 35 §3(b)) - declaration here.

Italy: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Latvia: Any court (art. 35 §3(b)) - declaration here.

Lithuania: Any court (art. 35 §3(b)) - declaration here.

Luxembourg: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Netherlands: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Portugal: Any court (art. 35 §3(b)) - declaration here.

Slovenia: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Spain: Court of last resort (art. 35 §3(a)) - declaration here - Obliged to refer.

Sweden: Any court (art. 35 §3(b)) - declaration here.

Minority Holdings, Mergers and Interim Measures: Case T-411/07 R

The President of the Court of First Instance has handed down an important and significant order in a case concerning the failed attempt by Ryanair, the discount airline, to take over the Irish flag carrier Aer Lingus.

In his order, handed down in Case T-411/07 R Aer Lingus v. Commission, the President of the Court of First Instance dismissed an action by Aer Lingus to order the Commission to order Ryanair not to exercise its voting rights pertaining to the minority stake it holds in the capital of Aer Lingus.

The case is important because it goes to the heart of a debate on whether the Commission has the power, under Regulation 139/2004 - the infamous merger regulation - to regulate minority shareholdings.

The story goes like this. The Irish government privatized Aer Lingus in 2006 and shortly after Ryanair acquired a 19.16% stake in it. Ryanair launched a hostile public bid in October 2006 for the entire share capital of Aer Lingus and notified the Commission of the proposed acquisition in accordance with Regulation 139/2004. During the bid period Ryanair acquired further shares.

On June 27th 2007 the Commission adopted a decision prohibiting the proposed take-over by declaring it incompatible with the common market. Ryanair commenced an action to annul that decision in Case T-342/07 that is currently pending. Following that decision Ryanair acquired further shares, bringing its total holding to 29.4%.

Aer Lingus asked the Commission to order Ryanair to divest itself of its shareholding in Aer Lingus. The Commission refused in a decision of October 2007, stating that it was not within its power under Article 8 of Regulation 139/2004 to order such a divestiture where the intended acquisition had not been implemented and where Ryanair had only a minority shareholding which did not permit it to exercise de jure or de facto control over Aer Lingus.

Aer Lingus then lodged an action for annulment against that decision before the Court of First Instance and at the same time filed a request for interim measures, requesting, in essence, that Ryanair be ordered to refrain from exercising its voting rights in Aer Lingus pending the outcome of the case.

What is fairly remarkable about the order is that the President rejects it the request on the ground, amongst others, that Aer Lingus had failed to establish a prima facie case. Usually, the President, when dealing with interim measures, leaves the issue of the prima facie case to one side and examines the other conditions that must be complied with to obtain interim relief. That way, the Court hearing the main action remains entirely free to rule on the merits. But not in this case because the President considered that Aer Lingus' case was entirely devoid of merit. The President held that the Commission only has powers under Regulation 139/2004 when a change of control has been carried into effect. Consequently, the Commission has no powers - at least under Regulation 139/2004 - to act in relation to minority shareholdings which do not result in a change in control of the target company.

If that were not enough, the President also found that Aer Lingus has totally failed to produce adequate evidence that interim measures are required to avoid serious and irreparable harm. He found that the assertions put forward by Aer Lingus that Ryanair can use its shareholding to cause serious and irreparable harm to Aer Lingus are largely hypothetical and unsubstantiated statements which do not satisfy the condition of foreseeability of harm with the required degree of probability.

One little odd twist is that the President rejected the plea of the Commission that interim measures orders cannot be addressed to parties that are not the main parties in the proceedings. He found that in this case, Ryanair had intervened in the proceedings and therefore could be heard.

The way the order is set out, Aer Lingus' main case on the merits looks doomed to fail.

Civil Service Tribunal Practice Directions

We're back from a break and a much needed rest.

The European Civil Service Tribunal has issued new Practice Directions.

These Practice Directions set out how the written pleadings should be set out and lodged and how the oral hearing should be conducted.

One important thing the Practice Directions do is set up a system - complete with the appropriate form - of legal aid for plaintiffs.

They enter into force on May 1st 2008 and replace the 2006 Notes on Guidance on Oral Argument before the Civil Service Tribunal.

Better Regulation, Administrative Burdens and Fast Track Actions

So perhaps we were a bit skeptical about "Better Regulation" when we wrote up about the Commission's 2007 Annual Report a while back.

It looks like we were being unfair.

The Commission has recently published a report, COM(2008) 141 final, with a list of 11 pieces of legislation to be amended in order to reduce the administrative burden imposed on industry and commerce in the EU.

Such a list was promised in an earlier report, COM(2008) 35 entitled "Reducing administrative burdens in the European Union 2007 progress report and 2008 outlook".

Internet Sales, DVDs, Censorship and the Free Movement of Goods: Case C-244/06

Here's a neat judgment of the Court of Justice on the free movement of goods. The case concerns the censorship and classification of videos and DVDs sold by mail order and over the internet. The judgment is a neat one because it is a sort of quick and thorough revision course on the case law on the free movement of goods !

All European countries engage in fairly strict censorship and classification of films, videos and DVDs, basically because freedom of expression is a largely unprotected right. German law requires that all videos and DVDs that may be sold to children and young people must be authorized and appropriately labelled by an officially recognized public authority or voluntary organization.

The judgment in Case C-244/06 Dynamic Medien Vertriebs GmbH v. Avides Media AG concerned the sale in German of Japanese "Anime" DVDs by a German company, Avides Media, over the internet. The DVDs offered for sale by Avides Media came from the United Kingdom (where the choice is greater) and had been vetted by the British censors but not by the German authorities. Dynamic Medien, a competitor of Avides Media, brought proceedings in the German courts to prevent Avides Media from offering for sale DVDs that had not been vetted and marked by the German authorities.

The German court asked the Court of Justice whether the principle of free movement of goods laid down in Article 28 EC precludes the German law prohibiting the sale by mail order of DVDs and videos that are not labelled as having been vetted by the German authorities as to their suitability for young people. The German court also asked whether the German prohibition could be justified under Article 30 EC.

The Court of Justice held, in the first place, that the German rules constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 28 EC, which in principle is incompatible with the obligations arising from that article unless it can be objectively justified.

The Court recalled that all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, inter alia, Case 8/74 Dassonville, paragraph 5, Case C-420/01 Commission v. Italy, paragraph 25, and Case C-143/06 Ludwigs-Apotheke, paragraph 26).

The German measures in question were not deigned to regulate trade between Germany and other member States. But the Court also recalled the important issue is the effect of those measures may have on intra-EC trade. By virtue of that factor, absent any harmonization of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect (such as those relating to designation, form, size, weight, composition, presentation, labelling or packaging), even if those rules apply to all products alike, unless their application can be justified by a public-interest objective taking precedence over the requirements of the free movement of goods (see, Case 120/78 Rewe-Zentral ('Cassis de Dijon'), paragraphs 6, 14 and 15; Case C-368/95 Familiapress, paragraph 8; and Case C-322/01 Deutscher Apothekerverband, paragraph 67). The Court has also treated as measures having equivalent effect, prohibited by Article 28 EC, national provisions making a product lawfully manufactured and marketed in another member State subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, Case C-390/99 Canal Satélite Digital, paragraphs 36 and 37, and Case C-14/02 ATRAL, paragraph 65).

It was debated before the Court whether the German rules on censorship were selling arrangements within the meaning laid down by the Court in its judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard, paragraph 16. The Court concluded in this case that the German rules on censorship do not constitute a selling arrangement within the meaning of Keck and Mithouard and the subsequent cases. It recalled that in paragraph 15 of its judgment in Case C-391/92 Commission v Greece that rules restricting the marketing of products to certain points of sale, and having the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement. Therefore, the need to adapt the products in question to the rules in force in the member State in which they are marketed prevents the German requirements from being treated as selling arrangements (see Canal Satélite Digital, paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, Case C-33/97 Colim, paragraph 37, and Case C-416/00 Morellato, paragraphs 29 and 30).

The Court then considered whether the German measures could be justified as being necessary to protect young people, being an objective linked to public morality and public policy recognized as grounds for justification in Article 30 EC.

The Court held that the German measures were so justified.

It recalled that the protection of the rights of the child is recognized by various international instruments which the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations and entered into force on March 23rd 1976, and the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on November 20th 1989 and entered into force on 2nd September 1990. The Court has already pointed out that those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case C-540/03 Parliament v Council, paragraph 37). Under Article 17 of the Convention on the Rights of the Child, the States Parties recognize the important function performed by the mass media and are required to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. Article 17(e) provides that those States are to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.

The Court pointed out that the protection of the child is also enshrined in the Charter of fundamental rights of the European Union, Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being (see, Parliament v Council, paragraph 58).

Nevertheless, the Court recalled that the German system of the examination of the DVDs and videos must be proportionate in the sense that it must be readily accessible, can be completed within a reasonable period, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, Case C-344/90 Commission v France, paragraph 9, and Case C-95/01 Greenham and Abel, paragraph 35). It concluded that while it seemed prima facie that the German system was proportionate, the national court must examine whether it is in fact proportionate.

Update on Urgent Preliminary Ruling Procedure

We noted a short while ago the introduction of the urgent preliminary ruling procedure in the area of freedom, security and justice. The procedure is effective from March 1st, 2008.

The Court of Justice has issued a press release summarizing the procedure nicely. You can find it here. It sets out the three features that distinguish it from the normal preliminary reference procedure:

"In the first place, with the aim of speeding up the process, the urgent preliminary ruling procedure makes a distinction between the persons who may participate in the written stage of the procedure and those entitled to participate in the oral stage. In the new procedure, only the parties to the main proceedings, the Member State of the court making the reference, the European Commission and, if appropriate, the Council and the European Parliament (if one of their measures is at issue) are authorised to lodge written observations in the language of the case within a short period of time. The other interested persons and, in particular, the Member States other than that of the referring court, do not have that opportunity but are invited to a hearing at which they may, if they wish, submit their oral observations on the questions referred by the national court and on the written observations lodged.
In the second place, the internal handling of cases under the new procedure is accelerated considerably, as all cases falling within the area of freedom, security and justice are, as soon as they reach the Court, referred to a Chamber of five judges specifically designated for a period of one year to be responsible for the screening and processing of such cases. If that Chamber decides to allow a request for the urgent procedure to be applied, it will go on to give its ruling shortly after the hearing, and after hearing the Advocate General.
Finally, to ensure the desired expeditiousness, the procedure will, in practice, essentially be conducted electronically. Communication between the Court and the national courts, the parties to the main proceedings, the Member States and the Community institutions will, as far as possible, be electronic."

The Court has also issued a new supplemental information note on the urgent procedure addressed to national courts on how it will operate.

Finally, while we're at it, here are the consolidated rules of procedure incorporating the amendments relating to the new procedure.

Fifth Commission Report on Citizenship

If there is one interesting development in the case law of the Court of Justice, it is that which concerns citizenship. Take this case, for example, or that one.

The Commission publishes a report every so often on "Citizenship of the Union" and the fifth one was made public recently. You can find it here as COM(2008) 85 final.

The report covers the period May 1st 2004 to June 30th 2007 and contains a very valuable and interesting summary of developments - legislative, administrative and judicial - in all areas affecting citizenship at the EC level.

That Report itself is succinct. Earnest researchers should refer to the accompanying Commission document SEC(2008) 197 is much more detailed and provides what seems like a comprehensive series of references. What is particularly interesting is the table on pages 9 and 10 on migration and population figures per member State. Did you know, for example that 2.1% of the United Kingdom's population was made up of citizens from other member States and 3.6% of it from non-member States ?