EU Law Blog

Criminal Penalties, Environmental Law and Ship-Source Pollution: Directive 2009/123/EC

The Council and European Parliament have adopted Directive 2009/123/EC on ship-source pollution and on the introduction of penalties for infringements.

After the judgment of the Court of Justice in Case C-176/03 Commission v Council that we wrote about here and the Court's judgment in Case C-440/05 Commission v. Council ECR [2007] I-9097 annulling Council Framework Decision 2005/667/JHA of July 12th 2005 to strengthen the criminal law framework for the enforcement of the law against ship-source pollution, the Council and European Parliament have finally adopted Directive 2009/123/EC to amend Directive 2005/35/EC to include criminal penalties to buttress its substantive provisions.

The adoption of Directive 2009/123/EC brings to a conclusion the dispute between the Commission and the Council on the possibility of including provisions on harmonizing criminal penalties for breaches of EU law and environmental law in particular.

For a previous post on the follow-up to the Court of Justice's judgments, see here.

Criminal Law, Evidence and Cross-Border Investigations: The Green Paper

We've said it before ! EU criminal law is the big growth area.

Now the Commission has launched a green paper (COM (2009) 624 final) asking for comments on obtaining evidence in criminal matters from one member State to another and securing its admissibility.

You can consult it here.

The idea is to canvas opinion on an instrument going beyond the Council Framework Decision 2008/978/JHA of December 18th 2008 on the European Evidence warrant. In particular, the green paper states:

"Compared with the scope of application of the Framework Decision on the European Evidence Warrant, this new instrument would also cover evidence that – although directly available – does not already exist, such as statements from suspects or witnesses or information obtained in real time, such as interception of communications or monitoring of bank accounts. It would also include evidence that – although already existing – is not directly available without further investigation or examination, such as analyses of existing objects documents or data or obtaining bodily material, such as DNA samples or fingerprints. The present consultation is aimed at confirming the validity of this approach."

Intel, the Ombudsman and the Commission's Antitrust Investigation

The European Ombudsman has made public a version of his decision concluding his investigation into misconduct and maladministration by the Commission's DG Competition.

Intel had complained to the European Ombudsman alleging two things. First that the Commission had failed to take minutes of a meeting with a senior Dell executive held on 23 August 2006, even though the meeting directly concerned the subject-matter of the Commission's anti-trust investigation of Intel. Second that the Commission encouraged Dell to enter into an information exchange agreement with micro-chip producer and Intel competitor AMD thus giving AMD access to information contained in the Commission's investigation file.

The Ombudsman did find that the Commission's DG Competition had committed maladministration by failing to take a proper note of that meeting and that its investigation file did not include the agenda of the meeting. That failure did not breach Intel's rights of the defense, however.

As to the second allegation, the Ombudsman did not conclude that the Commission had committed maladministration but did find that the Commission failed to make a proper note of a telephone call between the Commission and Dell, in which the information exchange agreement was discussed. Such a note would have helped to clarify the relevant facts. He thus recommended that the Commission's DG Competition be more professional and rigorous in keeping proper notes of meeting and telephone calls in order to reduce the risk of doctoring the file.

You can find a summary of the Ombudsman's decision here.

Pregnancy, Discrimination and Effective Judicial Protection: Case C-63/08

Pregnant women must be entitled to effective judicial protection. So holds the Court of Justice in its judgment in Case C-63/08 Virginie Pontin v. T-Comalux SA. Thus, if national law lays down a time-limit for a pregnant woman dismissed from employment during pregnancy which is too short and also bars pregnant women from obtaining damages when other employees can get them, the law in question discriminates against women employees.

The story goes like this. Ms Pontin worked for T-Comalux in Luxembourg from November 2005. In January 2007 she was dismissed with immediate effect ‘on grounds of serious misconduct’ consisting of ‘unauthorised absence for more than three days’. The day following her dismissal Ms Pontin informed T-Comalux that she was pregnant and that her dismissal was null and void by virtue of the legal protection enjoyed by pregnant workers. Her employers did not respond. She considered that she was the victim of wrongful dismissal and thus brought proceedings in April - more than 15 days after her notice of dismissal - before the Employment Tribunal of Esch-sur- Alzette, Luxembourg, seeking a declaration that her dismissal was null and void.

The problem was that the Luxembourg Labor Code, which transposes Council Directive 76/207/EEC (the Pregnant Workers Directive), prohibits the dismissal of an employee where she has been medically certified as being pregnant or within twelve weeks of her giving birth. It makes legal action by an employee dismissed during pregnancy, who wishes to bring an action for nullity of the dismissal and for reinstatement within the undertaking concerned, subject to a time-limit of 15 days from the date on which her contract is terminated.

The Employment Tribunal asked the Court of Justice whether EU law precludes national legislation which, first, makes legal action brought by a pregnant employee who has been dismissed during her pregnancy subject to short time-limits likely to deny her the opportunity to take legal proceedings to safeguard her rights and, second, denies her the possibility of bringing an action for damages against her employer, which is available to other employees who have been dismissed.

The Court of Justice answered that in principle a 15 day limitation seems to constitute discrimination against pregnant women as it seems to infringe the principles of equivalence and of effectiveness as regards judicial protection. The Court went on, however, that it is for the national referring court to determine whether there has in fact been a breach of those principles in this particular case.

The Court recalled that the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favorable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 46).

The principle of equivalence requires that the national rule at issue be applied without distinction, whether the infringement alleged is of EU law or national law, where the purpose and cause of action are similar (Case C-326/96 Levez [1998] ECR I-7835, paragraph 41). However, that principle is not to be interpreted as requiring member States to extend their most favorable rules to all actions brought in the field of employment law (see Levez, paragraph 42). The national court, which alone has direct knowledge of the procedural rules governing actions in the field of domestic law, must determine whether the procedural rules intended to ensure that the rights derived by individuals from EU law are safeguarded under domestic law comply with that principle and to consider both the purpose and the essential characteristics of allegedly similar domestic actions (Levez, paragraphs 39 and 43, and Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 49). For that purpose, the national court must consider whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics (Preston and Others, paragraph 57).

To decide whether procedural rules are equivalent, the national court must establish objectively, in the abstract, whether the rules at issue are similar taking into account the role played by those rules in the procedure as a whole, the conduct of that procedure and any special features of those rules (Preston and Others, paragraphs 61 to 63).

As regards the principle of effectiveness, the Court of Justice recalled that cases which raise the question whether a national procedural provision renders the exercise of an individual’s rights under the EU legal order practically impossible or excessively difficult must similarly be analyzed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national instances. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defense, the principle of legal certainty and the proper conduct of the proceedings (Case C‑426/05 Tele2 Telecommunication [2008] ECR I‑685, paragraph 55).

The Court has thus recognised that it is compatible with EU law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty, since such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU law (Case C‑255/00 Grundig Italiana [2002] ECR I‑8003, paragraph 34, and Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 58 - see our post on that case here). As regards limitation periods, the Court has also held that, in respect of national legislation which comes within the scope of EU law, it is for the member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (Case C‑349/07 Sopropé [2008] ECR I-0000, paragraph 40).

Having recalled those principles, the Court of Justice examined the national legislation as interpreted by the referring court and came to the conclusion, subject to an examination of the facts of the case by the referring court, that the national legislation did indeed breach those principles.

EU/US Extradition and Mutual Legal Assistance Agreements

The Council has adopted and published its decision to conclude the extradition and mutual legal assistance agreements between the USA and the EU.

That means that both agreements are nearer to entering into force which should be on the first day following the third month after the date on which the Contracting Parties have exchanged instruments indicating that they have completed their internal procedures for this purpose.

Both agreements were signed by the Council in 2003 so it's taken a while.

You can find the text of the agreement on extradition here and that of the mutual legal assistance agreement here.

Infringements, Judicial Decisions and a National Supreme Court: Case C-154/08

The Court of Justice recently handed down a significant judgment in Case C-154/08 Commission v. Spain making clear that an error of law made by a national Supreme Court can constitute an infringement of EU law. Consequently, the Commission can institute proceedings on the basis of Article 226 EC against that member State.

Unfortunately, the judgment is not yet available in English.

The actual substance of the case need not detain us: It concerns the interpretation of the Sixth VAT Directive, Directive 77/388/EEC, which is rather technical and probably best left to the tax mavens to look into.

What is important for our purposes is that the Spanish Supreme Court had handed down a judgment on July 12th 2003 interpreting the Sixth VAT Directive in a particular manner, upholding the case law of a lower court, the Tribunal Superior de Justicia de Castilla-Léon. The Supreme Court, even though it was a court of last resort had no doubt about what interpretation it should give and did not refer the matter to the Court of Justice for a ruling. The Spanish national tax administration subsequently abided by the ruling of the Supreme Court.

The Commission, for its part, considered that the Spanish Supreme Court had got it wrong and commenced infringement proceedings against Spain on the basis of Article 226 EC.

During the course of the proceedings, Spain submitted that it was placed in a difficult position as defendant in infringement proceedings in such a case: Its Supreme Court's independence was protected by the constitution. As a consequence, it was difficult for the state to remedy the situation if the judicial branch committed errors in interpreting EU law.

The Court of Justice disagreed and recalled its earlier case law - Case C-129/00 Commission v. Italy [2003] ECR I-14637, at paragraph 29 - according to which a member State's failure to fulfill its obligations may, in principle, be established under Article 226 EC whatever the agency of that State whose action or inaction is the cause of the failure to fulfill its obligations, even in the case of a constitutionally independent institution, such as a court.

In the present case, the Court of Justice held that Spain was indeed in breach of EU law because of the ruling of its Supreme Court. It makes clear that a judgment of a supreme court can constitute a breach of EU law while it admits that isolated decisions of lower courts may not necessarily be of sufficient weight to do so.

It thus goes further in this case than in Case C-129/00 Commission v. Italy because in that case the Court concentrated on the conduct of the administration based on the court ruling involved rather than the ruling of the national court itself.

Sad News: Death of AG Ruiz-Jarabo Colomer

We're very sad to announce the sudden death of Advocate General Ruiz-Jarabo Colomer on November 12th 2009.

The Court's press release is here.

He was born in 1949 and was a professional judge in Spain before being appointed to the Court of Justice in January 1995.

A real gentleman, he will be remembered for his erudite and witty opinions. Take this one on Feta cheese for example. Or his opinion in Case C-292/05 Lechouritou which is a gem.

Lisbon Treaty, Czech Constitutional Court (Again) and Ratification

The Czech Constitutional Court has lifted the last major obstacle to the entry into force of the Lisbon Treaty.

On November 3rd 2009 it handed down a second judgment (a summary and a press release are available in English) finding that ratification of the Lisbon Treaty by the Czech Republic did not violate its constitutional provisions.

This second case was brought by a group of senators after the Czech Parliament of had already consented to ratification. The senators sought a review of the Lisbon Treaty as a whole as well as of the Treaties of Rome and Maastricht.

The Constitutional Court declared the petition to review the Treaties of Rome and Maastricht as inadmissible as those Treaties were unaffected by the process of ratification of the Lisbon Treaty.

As to the Lisbon Treaty itself, the Constitutional Court confirmed its ruling of November 28th 2008. We wrote a post about that first judgment here. It held that there was no democratic deficit in the European Union as a whole as the European Parliament is not an exclusive source of democratic legitimacy for decisions adopted on the European Union level. That legitimacy derives from a combination of structures existing both on the domestic and European level, and it held that it is not possible to demand absolute equality among voters in individual member states.

It also held that ratification of the Lisbon Treaty carried with it no loss of sovereignty for the Czech Republic. It stated that “in a modern democratic state governed by the rule of law, state sovereignty is not an aim in and of itself, i.e. in isolation, but is a means to fulfilling the fundamental values on which the construction of a democratic state governed by the rule of law stands [...] The transfer of certain competences to the state, which arises from the free will of the sovereign and will continue to be exercised with its participation in a pre-agreed, controlled manner, is not a sign of the weakening of sovereignty, but, on the contrary, can lead to strengthening it in the joint process of an integrated whole.”

The Czech President signed the ratifcation instrument, the last one. As a consequence, it seems that the new Treaty could enter into force on December 1st 2009.