EU Law Blog

Antitrust Fines, Due Process and the ECHR

Over at the highly recommended ECHR Blog, there's an excellent post on EU antitrust fines and ECHR fair trial rights.

The author of the post, Felix Ronkes Agerbeek, is an eminent lawyer, who works in the Commission's presitigious legal service, and who marshals his arguments very carefully.

He makes a telling point: The case law of the European Court of Human Rights on Article 6 of the ECHR is unclear and imprecise when it comes to transposing it to the Commission's antitrust procedure. He draws the following general conclusion:

"One thing is clear, though. The simple fact that Article 6[ECHR] applies does not prevent the adoption of sanctions by an administrative body. On the contrary, according to the case-law it is perfectly acceptable that certain sanctions are imposed by way of an administrative decision."

There's no doubt that he's right about that. But the procedure used by the Commission's DG Competition may need a few modifications all the same. For example, the European Court of Human Right's judgment in Dubus SA v. France may require a reorganization of that department in order to separate the investigative and adjudicative roles currently exercised by the same people. We'll see what the General Court makes of that judgment in the case pending before it in Case T-56/09 Saint Gobain Glass France and Others v. Commission.

For our post on the Dubus case see here.

And as a commentator pointed out on the ECHR Blog, the General Court's caselaw on ne bis in idem may need revisiting in the light of the European Court of Human Right's recent judgment in Sergey Zolotukhin v. Russia. As it happens, the Court of Justice itself has the opportunity to do just that and to align the EU case law with that of the European Court of Human Rights in the pending case C-17/10 Toshiba Coroporation and others v. v Úřad pro ochranu hospodářské soutěže. Again, we'll have to wait and see what happens.

We're very grateful to Mr. Ronkes Agerbeek for having started an interesting and worthwhile debate in blogosphere with such a thoughtful and interesting post.

EU Accession to the ECHR

Article 6 §2 TEU provides that the EU shall accede to the European Convention of Human Rights.

Easier said than done, of course. But now the wheels of accession are in motion.

The Commission has proposed negotiating directives to the Council so that it may conduct the requisite negotiations with the Council of Europe. The Commission has issued this press release and this memo explaining very briefly what it proposes.

Meanwhile, the European Parliament has been busy too. The Committee on Constitutional Affairs has issued this draft report. Interestingly, the draft report considers that no formal mechanism such as a preliminary reference procedure should link the Court of Justice and the European Court of Human Rights.

The European Parliament's Committee on Foreign Affairs issued this brief and rather vague draft opinion.

And its Committee on Civil Liberties, Justice and Home Affairs issued its own draft opinion.

All of those parliamentary documents will be considered by the Parliament's plenary sometime in the near future.

For a glimpse into how the Council of Europe would see the institutional mechanism to be established after EU accession to the Convention and in particular how the Court of Justice and the European Court of Human rights will interrelate, see this speech here. In it, Mr Serhiy Holovaty, Vice chairperson of the Committee of Legal Affairs and Human Rights of the Council of Europe's Parliamentary Assembly states that after EU accession, the Court of Justice will be treated as just a "domestic court" over which the Court of Human Rights will exercise "external restraint".

For a previous post on the relationship between the Council of Europe and the EU, see here.

Hat tip to the ECHR blog.

Review Judgment by ECJ, Due Process and Unity or Consistency of EU Law: Case C-197/09 RX-II:

As pointed out by our friends at the excellent Adjudicating Europe blog the Court of Justice has taken the unusual step of reviewing a judgment of the Court of First Instance (now the "General Court") at the request of the First Advocate General in its judgment in Case C-197/09 RX II M v. EMEA. That is the first time that Court of Justice has done so.

Review of a judgment of the General Court is a special competence given to the Court of Justice by Article 256 § 2 TFEU which provides:

"Decisions given by the General Court under this paragraph may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being affected."

There were three previous attempts by the First Advocate General to get the Court to review judgments of the Court of First Instance under that provision: In Case C-216/08 RX, Case C-21/09 RX and C-180/09 RX. The Court of Justice had rejected the request in all of those cases.

In the present case, the Court of Justice decided first, that there were grounds for review of the judgment of the Court of First Instance in Case T-12/08 P M v EMEA and second, that the review should be a positive one in the sense that it set aside that judgment of the Court of First Instance and referred the case back to the General Court.

The case concerned a staff dispute. Mr M was employed by the EMEA and had a dispute with his employer the details of which need not concern us. The salient point is that he brought a first action before the Civil Service Tribunal for the annulment of a decision of the EMEA taken in his regard and for damages. The Civil Service Tribunal dismissed his action as inadmissible. Mr M then appealed to the Court of First Instance. The Court of First Instance in its judgment in Case T-12/08 M v. EMEA set aside the judgment of the Civil Service Tribunal, declared the action to be admissible and ordered the EMEA to pay Mr M €3000 in damages for non-material damage suffered.

There was a problem with that. The submissions made before the Court of First Instance all dealt with the issue of the admissibility of the action and not substance of the case such as liability in damages, whether compensation was due for non-material damage and the appropriate quantum of damages.

The First Advocate General of the Court of Justice picked up on the fact that there had been no discussion at all of the substance of the case before either the Civil Service Tribunal or the Court of First Instance and thus the latter court was simply not in a position to rule on the substance and in particular on liability for non-material damage. He therefore proposed that the Court of Justice review the judgment of the Court of First Instance because he considered that ruling on a claim for non-material damage without hearing argument on it constituted a serious risk of the the unity or consistency of EU law.

The Court of Justice in its judgment in Case C-197/09 RX II agreed, set aside the judgment of the Court of First Instance and sent the case back to the General Court for consideration of the merits.

The Court of Justice held first that the Court of First Instance was not in a position to rule on the issue of the award of damages for non-material loss. It recalled that according to constant case law the state of the proceedings does not permit final judgment to be given on the substance of an action brought before the General Court where that court dismissed the action as inadmissible by upholding a plea of inadmissibility and did not reserve a decision on that plea for the final judgment (Case C‑39/93 P SFEI and Others v Commission [1994] ECR I‑2681, paragraph 38; Case C‑480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I‑265, paragraph 57; Case C‑193/01 P Pitsiorlas v Council and ECB [2003] ECR I‑4837, paragraph 32; Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraphs 91 and 123 (see our post on that case here); Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraph 66; and Case C‑319/07 P 3F v Commission [2009] ECR‑0000, paragraph 98). However, it is possible, in certain circumstances, for a ruling to be given on the substance of an action, even though the proceedings at first instance were confined to a plea of inadmissibility which the General Court upheld. That is possible where, first, the setting aside of the judgment under appeal necessarily brings about a definitive resolution of the substance of the action in question (Case C‑359/98 P Ca’ Pasta v Commission [2000] ECR I‑3977, paragraphs 32 to 36 and 39) or, second, the examination of the substance of the application for annulment is based on arguments exchanged by the parties in the appeal proceedings following the reasoning adopted by the court at first instance (Case C‑389/98 P Gevaert v Commission [2001] ECR I‑65, paragraphs 27 to 30, 34, 35 and 52 to 58, and Case C‑459/98 Martínez del Peral Cagigal v Commission [2001] ECR I‑135, paragraphs 29, 34 and 48 to 54). But neither of those conditions were fulfilled in this case.

The Court of Justice also held that the Court of First Instance had breached the right of the parties to a fair hearing and the rights of the defence by ruling on the substance of the case without hearing any argument about it.

The Court recalled the importance of respecting the rights of defence and stated that those rights occupy a prominent position in the organization and conduct of a fair hearing (Case C‑462/98 P Mediocurso v Commission [2000] ECR I‑7183, paragraph 36; Case C‑14/07 Weiss und Partner [2008] ECR I‑3367, paragraph 47; and Case C‑394/07 Gambazzi [2009] ECR I‑0000, paragraph 28). The rights of the defence include the right to a fair hearing (Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala[2008] ECR I‑4951, paragraph 61, and Case C‑89/08 P Commission v Ireland and Others [2009] ECR I‑0000, paragraph 50) (For our post on that really dramatic case, see here). That principle applies to any procedure which may result in a decision by a EU institution perceptibly affecting a person’s interests (see Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I‑5281, paragraph 28, and Commission v Ireland and Others, paragraph 50). Consequently, the parties to proceedings have a right to comment on the facts and documents on which a judicial decision will be based and to discuss the evidence produced and the observations made to the court as well as the pleas in law raised by the court of its own motion on which it intends to base its decision (Commission v Ireland and Others, paragraphs 52 and 55). In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be able to debate and be heard on the matters of fact and of law which will determine the outcome of the proceedings (Commission v Ireland and Others, paragraph 56).

The Court repeated that the EU Courts must ensure that the rule that the parties should be heard is respected in proceedings before them and that they themselves respect that rule (see Commission v Ireland and Others, paragraphs 51 and 54). That rule must benefit all parties to proceedings before the Community judicature, irrespective of their legal status. The EU institutions may also, therefore, avail themselves of that principle when they are parties to such proceedings (Commission v Ireland and Others, paragraph 53).

The Court of Justice concluded that the failings of the Court of First Instance were so grave and fundamental to the EU legal order that the unity and consistency of EU law is necessarily affected by them.

So that is the second time in a short while that the Court of Justice has beaten up the Court of First Instance really badly for failing to give the parties a fair hearing. We

Reasoning, Public Policy, Human Rights and Raising a Plea on Own Motion: Case C-89/08 P

It is not every day that the Court of Justice beats up the Court of First Instance (as it was known) for violating the human rights of the parties. But that is just what it did in its judgment in Case C-89/08 P Commission v. Ireland and others.

What happened was this. The Commission adopted a decision partly approving state aid schemes introduced by France, Italy and Ireland and partly declaring them incompatible with the common market and ordering their recovery.

Ireland, France and Italy then challenged that decision before the Court of First Instance. That Court annulled the decision in its judgment in Joined Cases T- 50/06, T-56/06, T-62/06 and T-69/06 Ireland and others v. Commission (ECR [2007] II-172). The Court of First Instance held that the Commission had failed to give proper reasons for its decision and annulled it on that sole ground.

The problem with that, though, was that none of the applicants had pleaded lack of reasoning as a ground of annulment and the Court of First Instance did not question the parties on that aspect of the case at all during the written or oral phase of the proceedings: It just pulled that ground of annulment out of its hat when handing down the judgment.

And so the Commission appealed.

The Court of Justice upheld the Commission's appeal on that point.

It held that the Court of First Instance could raise the ground of annulment for lack of reasoning of its own motion. It recalled that it has consistently been held that an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the Community judicature of its own motion (Case C‑166/95 PCommission v Daffix [1997] ECR I‑983, paragraph 24; Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67; Case C‑265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 114; and Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 174).

So far so good. But then Court of Justice dealt with whether it was proper for the Court of First Instance to raise the plea of its own motion without hearing the parties on that point at all.

The Court of Justice drew the line at that and held that the Court of First Instance should have heard the parties before deciding the case on that point. It held that the principle that the parties should be heard means, as a rule, that the parties have a right to a process of inspecting and commenting on the evidence and observations submitted to the court (Case C‑450/06 Varec [2008] ECR I‑581, paragraph 47) and, moreover, that that basic principle of law is infringed where a judicial decision is founded on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment (Joined Cases 42/59 and 49/59 SNUPAT v High Authority [1961] ECR 53, 84; Case C‑480/99 P Plant and Others v Commission and South Wales Small Mines [2002] ECR I‑265, paragraph 24; and Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 19). It insisted that a court must itself observe the rule that the parties should be heard, in particular, when it decides a dispute on a ground it has identified of its own motion (see, by analogy, in the sphere of human rights, the judgments of the European Court of Human Rights in Skondrianos v. Greece, nos. 63000/00, 74291/01 and 74292/01, §29 and 30, 18 December 2003; Clinique des Acacias and Others v. France, nos. 65399/01, 65405/01 and 65407/01, §38, 13 October 2005; and Prikyan and Angelova v. Bulgaria, no. 44624/98, §42, 16 February 2006).

In a final rebuke to the Court of First Instance, the Court of Justice recalled that, in the analogous context of Article 6 of the ECHR, it has held that it is precisely in deference to that article and to the very purpose of every individual’s right to adversarial proceedings and to a fair hearing within the meaning of that provision that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (Order of 4 February 2000 in Case C‑17/98 Emesa Sugar [2000] ECR I‑665, paragraphs 8, 9 and 18, and Joined Cases C‑270/97 and C‑271/97 Deutsche Post [2000] ECR I‑929, paragraph 30).

European Court of Human Rights and Administrative/Antitrust Proceedings

The European Court of Human Rights has handed down a significant judgment finding that France is in breach of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights because of the manner in which the French Banking Commission investigated and punished infringements of French banking law.

The Court held in its judgment of June 11th 2009 in Dubus S.A. v. France (available in French only) that France breached Article 6 § 1 on account of the lack of independence and impartiality of the disciplinary proceedings brought by the French Banking Commission against the applicant, Dubus S.A., a French investment corporation.

A press release in English is available here.

The Court of Human Rights found that there was no clear distinction between the functions of prosecution, investigation and adjudication in the exercise of the judicial power vested in the French Banking Commission. While the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality, this was subject to their being no "prejudgment” on the part of the Banking Commission. The Court stated that there was a need for strict controls, to avoid giving the impression that guilt had been established from the very start of the disciplinary proceedings.

The Court of Human Rights also found that Dubus could reasonably believe that it was prosecuted and tried by the same people, and consequently could entertain doubts about the impartiality of the decision of the Banking Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and imposed the penalty.

Interestingly, the Court of Human Rights also held, en passant, that the penalties in the form of fines were penal in character given the high amounts that could, potentially, be imposed.

Why is this significant ?

Because the procedure used by the European Commission in antitrust cases is rather similar (but not identical) to the one applied by the French Banking Commission.

Also, similar arguments are pending before the Court of First Instance in Case T-56/09 Saint Gobain Glass France and Others v. Commission.

Commission Report on Monitoring of Compliance with the Charter of Fundamental Rights

The Commission has recently published an informative report entitled "Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of fundamental rights" (COM (2009) 0205).

The report is really quite a gold mine of information and references. It rewards reading.

For example, the report shows how issues of fundamental rights crop up in very different areas of EU law, such as chemical regulations, agricultural law or customs law. But, the report warns, it is important for other institutions to be mindful of the need to comply with fundamental rights. It describes two options available to the Commission should the Council and European Parliament fail to respect fundamental rights in the exercise of their legislative powers:

As a last resort, as it already indicated in the 2005 Communication, the Commission is ready to contemplate an annulment action: strategically, the best utilisation of the annulment action would be where the legislator has made specific amendments to the Commission's proposal, which the Commission considers clearly violate fundamental rights. In the case of such specific amendments, where they can be separated from the rest of the instrument, an annulment action is the better course. The offending provisions can be singled out, while preserving from attack the other provisions of the legislative act which might represent valuable progress that the Commission would not wish to sacrifice.
Where, on the other hand, the legislator has departed significantly from the Commission proposal in terms of fundamental rights protection so that the centre of gravity of the proposal as far as that protection is concerned has shifted, the withdrawal of the proposal could be the preferred option. The long standing position of the Commission has been that its right of initiative also implies the right to withdraw its proposal and, this, in cases where amendments made by the legislator to the Commission's proposal lead either to a manifest illegality or to a serious distortion of the Commission proposal.

The Commission's report refers extensively to the influential report of Johannes Voggenhuber MEP of 2007 on compliance with the Charter of Fundamental Rights in the Commission's legislative proposals: methodology for systematic and rigorous monitoring (PE 378.675v02-00).

For previous posts on fundamental rights see here and here.

Tennis Rackets, Aviation Security, Unpublished Regulations: Case C-345/06

Anyone for tennis ? Just don't carry tennis rackets in Europe. Read on to find out why....

A recent judgment of the Court of Justice – Case C-345/06 Gottfried Heinrich – sets out the principle that part of a regulation that has not been published cannot be enforced against an individual who cannot, by the very nature of things, know what the regulation in questiàon lays down.

The facts of the case are really remarkable. Mr Heinrich tried to board an aircraft at Vienna airport but he was intercepted by airport security. Why ? Because he was carrying tennis rackets in his carry-on luggage. Airport security considered that tennis rackets were articles prohibited by a series of EU regulations on aviation security.

First, Regulation 2320/2002 of the European Parliament and Council on aviation security provided for common basic standards applicable to aviation security measures and the annex stated in general terms, the kind of items that would be prohibited on board aeroplanes, which included ‘Bludgeons: Blackjacks, billy clubs, baseball clubs or similar instruments’. The regulation also provided that some measures would not be published but only made available to the competent authorities. That regulation and the annex were published.

Then the Commission adopted Regulation 622/2003 implementing Regulation 2320/2002. Its annex, amended in 2004, set out the kind of prohibited items but was never published even though the amending regulation emphasised, in the preamble, the need for passengers to be clearly informed of the rules relating to prohibited articles.

Anyway, Mr Heinrich, doubtless a man of as much character as he is keen on his tennis, tried to board his plane nevertheless. The security staff took the view that a man of character with tennis rackets posed a clear and present danger to aviation security and ordered him off the plane.

Mr Heinrich brought an action before the competent Austrian Administrative Court seeking a declaration that the measures taken against him were illegal. The Austrian court asked the Court of Justice whether regulations or its unpublished parts in the Official Journal may have binding force.

The Court of Justice held that an unpublished regulation or part of a regulation cannot impose obligations on individuals.

It recalled that, under Article 254(2) EC, regulations of the Council and of the Commission are published in the Official Journal and enter into force on the date specified in them or, if not so specified, on the twentieth day following that of their publication. Consequently, an EU regulation cannot take effect in law unless it has been published in the Official Journal (see Case C-161/06 Skoma-Lux, paragraph 33 - a case we noted here). Also, an act adopted by an EU institution cannot be enforced against natural and legal persons in a member State before they can make themselves acquainted with it by its proper publication in the Official Journal (Skoma-Lux, paragraph 37).

The Court also held that the principle of legal certainly requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see Case C-158/06 ROM-projecten, paragraph 25).

The Court made clear that those principles must also be observed, and have the same consequences, where EU legislation obliges member States to adopt measures imposing obligations on individuals. The measures adopted by the member States to implement EU law must comply with the general principles of that law (see, Case C-313/99 Mulligan and Others, paragraphs 35 and 36, and Case C‑384/05 Piek, paragraph 34). Therefore, national measures which, to implement EU legislation, impose obligations on individuals, must be published in order for the individuals to be able to ascertain those obligations (see, to that effect, Mulligan and Others, paragraphs 51 and 52).

The Court emphasized that is all the more vital in the case of EU regulations since individuals must be able to request a national court to ascertain whether national implementing measures comply with an EU regulation (see, Case 230/78 Eridania‑Zuccherifici nazionaliand Società italiana per l’industria degli zuccheri, paragraph 34). In such a situation, not only the national legislation at issue must be published but also the EU regulation which forces the member States to take the measures imposing obligations on individuals.

The Court observes that Regulation 2320/2002 seeks to impose obligations on individuals in so far as it prohibits certain items on board aeroplanes, defined in a general manner, in a list attached as an annex to the Regulation. It also finds that the list of prohibited articles does not fall within any of the categories of measures and information which are treated as secret and which are not published under Regulation 2320/2002.

Thus, the Commission could not apply the rules on confidentiality to the measures amending the list. It follows that, if Regulation 622/2003 had in fact modified that list of prohibited articles that regulation would, for that reason, have to be held invalid.

By the way, you'll notice that the relevant annex is still not published or publicly available. Anyone for the rule of law ?

CORRECTION! Thanks to a commentator, we stand corrected: The annex is published - as an annex to Regulation 820/2008. The relevant part is section 4. But you will see that tennis rackets are not expressly listed but could be characterized as a "blunt instrument capable of causing injury". Funnily enough, skateboards are on the list even though they are more dangerous to those using them than to the general public. Regulation 820/2008 was adopted on August 8, 2008 and published on August 19, 2008, ahead of the Court of Justice ruling.

Common Foreign and Security Policy, War on Terror and Rights of Defence: Case T-284/08

This must be one of the quickest ever judgments of the Court of First Instance. The People's Mojahedin Organization of Iran lodged an application on July 21st 2008 to annul a Council Decision maintaining it on a list of persons whose assets should be frozen because of their links with terrorism and judgment was delivered on December 4th 2008. The procedure was expedited. Even more remarkable is the fact that the hearing took place on December 3rd, 2008 and judgment was handed down the very next day.

The judgment of the Court of First Instance in Case T-284/08 People's Mojahedin Organization of Iran v. Council is notable for other reasons too.

This judgment marks the third time that the Court of First Instance has annulled a measure placing the People's Mojahedin Organization of Iran on a list of terrorist organizations.

In its first judgment in Case T-228/02 - judgment we noted here, the Court of First Instance annulled a Council decision placing that organization on a list on the grounds that it did not contain a sufficient statement of reasons, that it had been adopted in the course of a procedure during which the applicant’s rights of defence had not been observed and that the Court itself was not in a position to review its lawfulness.

Then, in Case T-256/07, the Court of First Instance annulled a second decision because the Council had failed to give sufficient reasons as to why it had not taken into account the judgment of a British judicial authority, the Proscribed Organisations Appeals Commission (“POAC”), ordering the removal of the People's Mojahedin Organization of Iran from the British list of terrorist organizations. The Court held that it was imperative when adopting EU fund-freezing measures that the Council take account of a decision of a competent national judicial authority, as well as verifying any consequences of that decision at the national level. In its judgment, the POAC described as ‘perverse’ and ‘unreasonable’ the British Home Secretary’s conclusion that the applicant was still a terrorist organization.

Now this case, T-284/08, concerned the decision of the Council to maintain the People's Mojahedin Organization of Iran on the updated EU list of terrorist organizations. It was so maintained because the Council noted that the British Home Secretary’s order was no longer in force, and that ‘new information concerning the group [had] been brought to the Council’s attention” which justified keeping the People's Mojahedin Organization of Iran on the EU list.

The People's Mojahedin Organization of Iran challenged that decision. And won, yet again.

The Court of First Instance held, in the light of the principles already stated in its judgment in Case T-228/02, that the contested decision was adopted in breach of the People's Mojahedin Organization of Iran's rights of defence: The Council adopted the contested decision without first informing the People's Mojahedin Organization of Iran of the new information or new material in the file which, in its view, justified maintaining it on the list.

But the Court of First Instance did not stop there. It considered that the case raised other important issues of principle.

Thus, the Court of First Instance also held that the Council had failed to explain the specific reasons as to why the acts ascribed to certain individuals by the French authorities in the course of investigation conducted by their anti-terrorist specialists into the activities of certain members of the People's Mojahedin Organization of Iran should be attributed to the People's Mojahedin Organization of Iran itself. The Court of First Instance took umbrage at the fact that the Council refused - at the request of the French authorities - to communicate to the Court certain extracts of a document containing a "summary of the main points which justify the keeping of [the organization] on the EU list", even though this information had been communicated to the Council and subsequently to the 26 other member States. The Court held that the Council is not entitled to base its funds-freezing decision on information or material in the file communicated by a member State, if that member State is not willing to authorize its communication to the EC courts whose task is to review the lawfulness of that decision. The refusal by the Council and the French authorities to communicate, even to the Court alone, the information contained in the document means that the Court cannot review the lawfulness of the contested decision, which infringes the People's Mojahedin Organization of Iran fundamental right to an effective judicial review.

The Court of First Instance recalled that effective judicial review is all the more essential because it constitutes the only safeguard ensuring that a fair balance is struck between the need to combat international terrorism and the protection of fundamental rights. Since the restrictions imposed by the Council on the rights of the parties concerned to a fair hearing must be offset by a strict judicial review which is independent and impartial (see, to that effect, Case C‑341/04 Eurofood IFSC, paragraph 66), the EU courts must be able to review the lawfulness and merits of the measures to freeze funds without its being possible to raise objections that the evidence and information used by the Council is secret or confidential.

Strikes, Collective Agreements and Freedom to Provide Services: Case C-341/05

After the judgment in Case C-438/05 Viking on the freedom of establishment we noted up recently, here's the judgment in Case C-341/05 Laval un Partneri Ltd on the free movement of services.

In its judgment in Case C-438/05 the Court of Justice held that Article 49 EC and Directive 96/71 on the posting of workers preclude a trade union from attempting by means of strikes and other forms of collective action such as blockades from forcing a provider of services established in another member State to enter into negotiations with it on rates of pay for posted workers and to conclude a collective agreement for more favorable terms than those resulting from the applicable legislation.

In May 2004, Laval, a Latvian company, posted workers from Latvia to work on building sites in Sweden. The work was carried out there by a subsidiary, L&P Baltic Bygg AB. In June 2004, Laval and Baltic Bygg, and the Swedish building and public works trade union, Svenska Byggnadsarbetareförbundet, began negotiations with a view to determining the rates of pay for the posted workers and to Laval’s signing the collective agreement for the building sector. But they couldn't agree. In September and October, Laval signed collective agreements with the Latvian building sector trade union, to which 65% of the posters workers were affiliated. Presumably, the going Latvian rates were lower than the Swedish rates even with the extra benefits included for travel, meals and accommodations. Because it failed to reach an agreement with Laval in Sweden, the Swedish union Byggnadsarbetareförbundet began collective action in November 2004 by blockading all of Laval’s sites in Sweden. Added to which, the Swedish electricians’ trade union joined in with a sympathy action, the effect of which was to prevent electricians from providing services to Laval. None of the members of those trade unions were employed by Laval. After work had stopped for a certain period, Baltic Bygg was declared bankrupt and the posted workers returned to Latvia.

Laval then brought proceedings in the Swedish courts. It sought a declaration on the unlawfulness of the collective action and for compensation for the damage suffered. The Swedish court then asked the Court of Justice if EC law and in particular Article 49 EC and Directive 96/71 precludes trade unions from taking collective action in the circumstances of the present case.

The Court begins by examining the possibilities available to the member States for determining the terms and conditions of employment applicable o posted workers. It held that Directive 96/71 does not allow the host member State to make the provision of services in its territory conditional on the observance of terms and conditions of employment which go beyond the mandatory rules for minimum protection. Directive 96/71 expressly lays down the degree of protection which undertakings established in other Member States must guarantee, in the host Member State, to the workers posted to the territory of the latter.

The Court held that while the right to take collective action must be recognised as a fundamental right which forms an integral part of the general principles of EC law, such a right cannot render otiose the rest of EC law and the freedoms it grants. Consequently, the right of trade unions of a member State to take collective action to force undertakings established in other Member States into negotiations with the trade unions in order to ascertain minimum wage rates and to sign a collective agreement – the terms of which go beyond the minimum protection guaranteed by Directive 96/71 – is liable to make it less attractive, or more difficult, for such undertakings to carry out construction work in Sweden, and therefore constitutes a restriction on the freedom to provide services.

The question remained whether such a restriction could be justified. The Court held that in principle it was because the right to take collective action for the protection of the workers of the host State against possible social dumping may constitute an overriding reason of public interest. But, in a case such as the present one, the Court held that the employer of posted workers employer is required, as a result of the coordination achieved by Directive 96/71, to observe a nucleus of mandatory rules for minimum protection in the host member State. Thus collective action cannot be justified with regard to the public interest objective of protecting workers where the negotiations on pay which that action seeks to impose on an undertaking established in another member State to enter into form part of a national context in the host state that is too open ended and without precise and clear provisions, such that it is impossible or excessively difficult in practice for such an undertaking to determine the obligations with which it is required to comply as regards minimum pay.

The Court also held that the Swedish trade unions must take account of the collective agreements negotiated in Latvia. It held that national rules which fail to take into account of collective agreements to which undertakings that post workers to Sweden are already bound in the member State in which they are established, give rise to discrimination against such undertakings, in so far as under those national rules they are treated in the same way as national undertakings which have not concluded a collective agreement.

Lisbon Treaty and Charter Published

The Reform-Lisbon Treaty has been published officially now in the Official Journal.

You can find it here together with the protocols and the Final Act. But beware, that is not a consolidated version.

The Charter of Fundamental Rights has been published too. You can find that here. The publication of the text is accompanied by the publication of the "Explanations relating to the Charter of Fundamental Rights" which is a very interesting document and an aid to interpretation.