EU Law Blog

Bilateral Investment Treaties, Pre-Accession Agreements and Free Movement of Capital (and Reciprocity): Case C-118/07

The Court of Justice has handed down an interesting judgment in Case C-118/07 Commission v Finland on the need to amend existing bilateral agreements with non member countries concluded by a member State before it acceded to the EU.

The Court held that Finland had failed to comply with Article 351 §2 TFEU (ex Article 307 §2 EC) because it had not amended the bilateral investment treaties it had concluded with the Russian Federation, the Republic of Belarus, the People’s Republic of China, Malaysia, the Democratic Socialist Republic of Sri Lanka and the Republic of Uzbekistan.

What had Finland not done ? It had failed amend those agreements to include stipulations to include possible exceptions, as required by Articles 64 §2 TFEU (ex Article 57 §2 EC), 66 TFEU (ex Article 59 EC) and 75 §1 TFEU (ex Article 60 §1 EC). Those provisions confer on the Council (and European Parliament now) the power to restrict in certain circumstances movements of capital and payments between the member States and non member countries.

That’s right. The Commission was reproaching Finland not for maintaining a restriction but for not providing for the possibility of a future restriction to be decided by the Council and Parliament. All of the agreements, apart from the one concluded with Russia, contained a clause which guarantees the protection of investments within the limits authorized by the laws of the Contracting Party. For example, the agreement concluded with Sri Lanka stipulates: ‘Every contracting party guarantees under all circumstances, within the limits authorized by its own laws and decrees and in conformity with international law, a reasonable and appropriate treatment of investments made by citizens or companies of the other Contracting Party."

The Commission brought infringement proceedings against Finland for failing to adapt those agreements. Article 351 TFEU obliges the member States to take all appropriate steps to eliminate incompatibilities with EU law which have been established in agreements concluded prior to their accession. Under that provision, the member States are required, where appropriate, to assist each other to that end and, where appropriate, to adopt a common attitude. Finland had done nothing and claimed it need not do anything because the Council (and Parliament) had as yet taken no measures restricting the free movement of capital.

The Court of Justice agreed with the Commission.

It recalled that, as it had held in Case C-205/06 Commission v Austria [2009] ECR I-0000, paragraph 37, and Case C-249/06 Commission v Sweden [2009] ECR I-0000, paragraph 38, those powers of the Council, which consist in the unilateral adoption of restrictive measures with regard to non member countries on a matter which is identical to or connected with that covered by an earlier agreement concluded between a member State and a non member country, reveal an incompatibility with that agreement where, first, the agreement does not contain a provision allowing the Member State concerned to exercise its rights and to fulfill its obligations as a member of the EU and, second, there is also no international-law mechanism which makes that possible.

The agreement with Russia in particular, without any clause allowing for restrictive measures, was incompatible with the Treaty.

As for the other agreements, which contained the clause quoted above or similar, the Court held that they too were incompatible with the Treaty. It held that the aim of the provisions of the bilateral agreements at issue, challenged by the Commission in its infringement action, is to ensure freedom of payments in respect of investments. The Court found it debatable whether the provision which guarantees the protection of investments within the limits authorized by the laws of the Contracting Party contained in the bilateral agreements concerned would allow either party to limit payment entitlement pursuant to decisions – whether national or otherwise – taken after the entry into force of the agreements, especially as in some agreements it is also stated that each Contracting Party is required to act ‘in accordance with international law’.

One last point is worth noting. Germany and Hungary, intervening in Finland's support, criticized the Commission for being selective in bringing an action against Finland and not against other member States with similar agreements.

The Court dismissed that argument. It recalled that a member State may not rely on the fact that other member States have also failed to perform their obligations in order to justify its own failure to fulfill its obligations under the Treaty. In the EU legal order established, the implementation of EU law by the member States cannot be made subject to a condition of reciprocity. Articles 258 TFEU (ex Article 226 EC) and 260 TFEU (ex Article 227 EC) provide the appropriate remedies in cases where member States fail to fulfil their obligations under the Treaty (Case C-38/89 Blanguernon [1990] ECR I-83, paragraph 7, and Case C-163/99 Portugal v Commission [2001] ECR I-2613, paragraph 22).

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.

Korea - EU Competition Cooperation Agreement

The EU has finally signed an agreement to coöperate with the Republic of Korea on antitrust matters.

It has taken quite a while for the EU to sign it (appeasement of the North, perhaps? Allright, that's just a joke).

The agreement with Korea is similar to those with the United States, Canada and Japan.

The agreement provides for :
-the notification of enforcement activities that may affect the interests of the other jurisdiction
-mutual assistance, including the possibility for one authority to ask the other to undertake enforcement action
-coordination of enforcement activities
-exchange of non-confidential information
-organisation of regular bilateral meetings between the parties' competition authorities.

The Commission's press release is available here. The actual text of the agreement is not made public (Commission's opacity policy oblige).

Banana Saga and Liability in Absence of Illegality: Joined Cases C-120/06 P & C-121/06 P

A while ago, we noted a series of judgments of the Court of First Instance in which it examined whether the institutions could be liable in damages even in the absence of any illegality on their part. Now, the Court of Justice has addressed the issue in Joined Cases C-120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission.

Certain EC exporters suffered from the temporary compensatory measures imposed by the United States and claimed compensation from the EC. The United States imposed a 100% customs tariff on certain goods from a number of EU member States from April 19th 1999 to June 30th 2001 pursuant to section 301 of the Trade Act 1974 (19 U.S.C § 2411) (for an overview, see here) and authorized according to Article 22 § 7 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. The US measures were adopted because the EU had legislated in the banana sector in a manner contrary to the WTO rules. The EC exporters - none of whom were involved in bananas - lost trade as a consequence and sued the Council and Commission in damages.

The Court of First dismissed the claim of the traders in its judgments in Case T-151/00 Laboratoire du Bain v Council and Commission, Case T-135/01 Giorgio Fedon & Figli v. Council and Commission, Case T-69/00 FIAMM v. Council and Commission and Case T-383/00 Beamglow Ltd v. European Parliament, Council and Commission. It held that the institutions could be liable in damages even in the absence of any illegality on their part. To reach such a conclusion, it had exhumed the rather obscure judgment in Case 81/86 De Boer Buizen v. Council and Commission. To succeed, however, the plaintiffs had to show that the loss and damage they suffered was special and abnormal. The Court of First Instance held that it was not.

The traders then appealed that finding concerning the special and abnormal character of their loss to the Court of Justice. The Council and Commission cross-appealed on the point that they could be held liable in the absence of illegality when they act in their legislative capacity.

The Court of Justice upheld the result of the Court of First Instance (the traders don't get any compensation) but reverse the finding of principle of the Court of First Instance on liability in the absence of illegality: It held that the Council and Commission could not be liable in damages in the absence of illegality on their part when they act in their legislative capacity. (The Court of Justice actually dismisses the cross-appeals but substitutes its own reasoning for that of the Court of First Instance. So, really the result is pretty much the same as if the cross-appeals had been successful. Yeah, appeals are complicated!).

The judgment is rather tough going. The Court of Justice partly agreed with the Court of First Instance and partly disagreed radically with it.

First, the Court of Justice agreed with the Court of First Instance that it could not review the legality of the EC measures in issue in the light of the WTO rules. It recalled that it can examine the validity of secondary EC legislation in the light of an international treaty only where the nature and the broad logic of the latter do not preclude this and, in addition, the treaty’s provisions appear, as regards their content, to be unconditional and sufficiently precise (see, in particular, Case C‑308/06 Intertanko and Others, paragraph 45). As regards, more specifically, the WTO agreements, it is settled case-law that, given their nature and structure, those agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions (see, in particular, Case C-149/96 Portugal v Council, paragraph 47; Case C-93/02 P Biret International v Council, paragraph 52; and Case C-377/02 Van Parys, paragraph 39). It is only where the EC has intended to implement a particular obligation assumed in the context of the WTO, or where the EC measure refers expressly to the precise provisions of the WTO agreements, that the Court can review the legality of the EC measure in question in the light of the WTO rules (see Case C-93/02 P Biret International v Council, paragraph 53, and Case C-377/02 Van Parys, paragraph 40).

The Court of Justice agreed with the Court of First Instance that those conditions were not fulfilled and thus it could not review the legality of the EC measures in the light of the WTO rules in this case.

Then the Court of Justice and Court of First Instance part company.

Because the Court of First Instance could not find that the EC measures in issue were illegal in the light of the WTO rules, it had to find some other means to find the EC liable in principle (if not in actual fact) in these cases. That is why it imported the French concept of liability for loss caused by legislation in the absence of illegality on its part (see the 1938 Conseil D'Etat case of La Fleurette) (because the French Conseil d'Etat has no jurisdiction to examine the constitutionality of legislation).

The Court of Justice held that while the principle of liability of the EU institutions in the event of illegal conduct (or omission) on their part was well established, liability in the absence of unlawful conduct was not firmly established. It held that as regards, more specifically, liability for legislative activity, that it had laid down at a very early stage that, although the principles in the legal systems of the Member States governing the liability of public authorities for damage caused to individuals by legislative measures vary considerably from one member State to another, it transpired that the public authorities can only incur liability for legislative measures in exceptional and special circumstances (Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 Bayerische HNL Vermehrungsbetriebe and Others v Council and Commission, paragraph 5). As a result, the Court held in particular that, in view of the second paragraph of Article 288 EC, the EC does not incur liability on account of a legislative measure which involves choices of economic policy unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred (see, inter alia, Joined Cases 9/71 and 11/71 Compagnie d’approvisionnement, de transport et de crédit and Grands Moulins de Paris v Commission, paragraph 13; Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 Bayerische HNL Vermehrungsbetriebe and Others v Council and Commission, paragraph 4; Case 50/86 Les Grands Moulins de Paris v EEC, paragraph 8; and Case C-119/88 AERPO and Others v Commission, paragraph 18).

The Court remarked that the strict approach taken towards the liability of the EU in the exercise of its legislative activities is attributable to two considerations. First, even where the legality of measures is subject to judicial review, exercise of the legislative function must not be hindered by the prospect of actions for damages whenever the general interest of the EC requires legislative measures to be adopted which may adversely affect individual interests. Second, in a legislative context characterised by the exercise of a wide discretion, which is essential for implementing an EC policy, the EC cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers (see, Joined Cases C-46/93 and C-48/93 Brasserie du pêcheur and Factortame, paragraph 45).

As a result, the Court of Justice concluded:

"[...] as Community law currently stands, no liability regime exists under which the Community can incur liability for conduct falling within the sphere of its legislative competence in a situation where any failure of such conduct to comply with the WTO agreements cannot be relied upon before the Community courts."

There's more that can be said about this judgment but that's enough for now. We'll save an interesting and odd twist for later.

Terrorism, the Security Council and EC law: Joined Cases C-402/05 P and C-415/05 P

The Court of Justice has handed down a major judgment in Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat Foundation v. Council and Commission on the right to have measures adopted by the EC to implement UN Security Council resolutions reviewed by the EC courts. In its judgment, the Court of Justice not only quashes the judgments of the Court of First Instance in Case T-306/01 Yusuf and Al Barakaat International Foundation v. Counciland Commission and in Case T-315/01 Kadi v. Council and Commission (that we had noted here) but also annuls the EC measures because the right to be heard, the right to effective judicial review and the right to property were infringed by the Council and the Commission when they implemented the UN Security Council resolutions.

The Sanctions Committee of the United Nations placed Yassin Abdullah Kadi, of Saudi Arabia, and Al Barakaat International Foundation, established in Sweden, on a list of persons and bodies associated with Usama bin Laden, Al-Qaeda or the Taleban. All States that are members of the United Nations were thus under an obligation to freeze the funds and other financial resources controlled directly or indirectly by such persons or bodies. The Council adopted Regulation 881/2002 to implement those resolutions in the EC, freezing the funds and assets of those on the list annexed. That list is updated regularly to take account of changes in the summary list drawn up by the UN Sanctions Committee.

Mr Kadi and Al Barakaat asked the the Court of First Instance to annul that regulation. They claimed that the Council was not competent to adopt the regulation and that it infringed several of their fundamental rights, in particular, the right to property and the rights of the defence. In its judgments of September 21st 2005 in Case T-306/01 Yusuf and Al Barakaat International Foundation v. Counciland Commission and in Case T-315/01 Kadi v. Council and Commission the Court of First Instance rejected all the pleas in law raised by Mr Kadi and Al Barakaat and upheld the regulation. The Court of First Instance held, in particular, that the Community courts had, in principle, no jurisdiction (except in respect of certain overriding rules of international law - jus cogens) to review the validity of the regulation at issue, given that the member States are bound to comply with the resolutions of the Security Council according to the terms of the Charter of the United Nations, an international treaty that prevails over Community law.

Mr Kadi and Al Barakaat then appealed to the Court of Justice.

First the Court of Justice holds that First, the Court confirms that the Council was competent to adopt the regulation on the basis of Articles 60, 301 and 308 EC Treaty.

But then the Court of Justice finds that the Court of First Instance was wrong to rule that it had no jurisdiction to review the lawfulness of the contested regulation. It made clear that a distinction could and should be drawn between reviewing the lawfulness of an international agreement (which the EC courts can't do) and reviewing an EC measure intended to give effect to the international agreement at issue (which the EC courts can and should do). It added that a judgment handed down by the EC courts deciding that an EC measure intended to give effect to a resolution of the Security Council is contrary to a higher rule of law in the EC legal order would not entail any challenge to the primacy of that resolution in international law.

The Court of Justice affirmed as a matter of principle that the review of the validity of any EC measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which may not be prejudiced by an international agreement. As a consequence, the Court of First Instance must ensure the full review of the lawfulness of all EC acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to resolutions adopted by the Security Council. It thus quashed the judgments of the Court of First Instance for failing to do so.

As a result, the Court of Justice asserts rather neatly that the EC legal order is a distinct from international law, just as EC law is distinct from national law.

The Court of Justice went on to examine the legality of the regulation itself, rather than refer the case back to the Court of First Instance.

It held that, in the light of the actual circumstances surrounding the inclusion of the appellants’ names in the list of persons and entities whose funds are to be frozen, the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected.

It pointed out that the effectiveness of judicial review means that the EC institution is required to communicate to the person or entity concerned the grounds on which the measure at issue is based, so far as possible, either when that measure is decided on or, at the very least, as swiftly as possible after that decision in order to enable those persons or entities to exercise, within the periods prescribed, their right to bring an action.

The Court conceded that prior communication of the grounds could jeopardize the effectiveness of the measures freezing funds as would hearing the persons concerned before their names were included in the list. But the Court pointed out that the regulation at issue provides no procedure for communicating the evidence justifying the inclusion of the names of the persons concerned in the list, either at the same time as, or after, that inclusion. The Council never even informed Mr Kadi and Al Barakaat of the evidence adduced against them in order to justify the initial inclusion of their names in the list. That meant that Mr Kadi and Al Barakaat were also denied the right to a legal remedy.

The Court also held the freezing of funds constitutes an unjustified restriction of Mr Kadi’s right to property but which could be justified if he had had the opportunity to make representations to the Council about it.

The upshot is that the Court annulled the Council regulation in so far as it freezes Mr Kadi and Al Barakaat’s funds. Yet, the Court maintains the effects of the regulation for a period of three months running from judgment, to allow the Council to remedy the infringements found. The Court recognized that annulling the regulation with immediate effect could seriously and irreversibly prejudice the effectiveness of the restrictive measures, because in the period before the regulation is replaced, the person and entity concerned might take steps to prevent measures freezing funds from being applied to them again.

Recognition of US Judgments in Europe: Baumgartner's Article

Professor Samuel Baumgartner of the University of Akron Law School has written an interesting - and useful - article on whether and how US judgments are recognized and enforced in Europe.

US litigation has several distinctive features that somehow shock lawyers and policy makers in Europe and there is some resistance to enforcing US judgments there. Added to which there is competition between London and New York to become the courtroom of the world. So what really happens ? Professor Baumgartner's article helps to provide an answer.

Here's what the abstract states:

Transnational cases have become a prominent part of the litigation landscape in the United States. Class actions against foreign defendants are widespread, the Alien Tort Claims Act has emerged as a mainstay of proceedings to enforce international human rights law in U.S. courts, and the globalization of the economy has led to an increase in transnational regulatory litigation. In all these cases, however, the parties need to ask themselves whether an ensuing judgment or settlement can be recognized or enforced abroad. For quite some time, the perception in the United States has been that U.S. judgments do not fare very well when the time comes to recognize or enforce them abroad. If so, the resolution of a considerable number of transnational cases in this country would have no effect abroad, not exactly the result that lofty talk about ?transnational adjudication? would seem to entail.
In this paper, I intend to provide some answers to the question how well U.S. judgments really fare in Europe, where many of the important trading partners of the United States are located. I conclude that, on average, the recognition and enforcement of U.S. judgments does indeed face more obstacle in Europe than do European judgments in the United States. However, much depends on the country, the subject matter involved, the person of the defendant, and the connection of the dispute to the recognition state, among other things. Thus, a multilateral judgments convention, such as the one initiated by the United States in 1992, could indeed bring similar improvements as have resulted from various conventions and EC regulations adopted by the Europeans regarding their own judgments. The same goes for the federal recognition statute recently proposed by the American Law Institute.

You can download the article here.

Cacophonic outpouring on globalization

Deepak Lal (when does he get a Nobel Prize ?) complains in his wonderful recent book "Reviving the Invisible Hand: The Case for Classical Liberalism in the Twenty-First Century" of:

the cacophony of outpourings on globalization by sundry sociologists, philosophers, and political scientists as well as some economists" (p. xi)

And here's a prime specimen of such an outpouring from the Commission in its Communication entitled "The European Interest: Succeeding in the age of globalisaton" which is a "contribution to the October Meeting of Heads of State and Government". Here's an extract (reproduced exactly, with no attempt to sort out the grammar and style):

The EU must be in a position to present to citizens with a compelling vision of how a global Europe is adapting to new needs while protecting their interests, reforming its economic and social governance to ensure continuing prosperity, solidarity and security for the next generation as well as today's citizens. Meeting challenges of this scale can only be done effectively by making the most of the partnership between Member States and the EU level. Active involvement and a sense of stronger ownership by all actors are prerequisites for a successful Lisbon strategy. It will require a concerted commitment to engage in a capable and responsive communication strategy with EU citizens.

That surely makes you want to read the rest, doesn't it ?

Measures against terrorists, transfer of property and references to national law: Case C-117/06

In its judgment in Case C-117/06 Mölendorf the Court of Justice adopted a strict interpretation of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban.

What happened was this. The Mölendorfs owned buildings and land in Berlin. In December 2000, they agreed by notarially authorised instrument to sell that property to a group of three buyers. The agreement also provided that the sale price had to be paid to the sellers before final registration of the transfer of ownership in the Land Register. But then, final registration of the transfer of ownership was refused by the competent authority in Germany because one of the three buyers was on the list of persons subject to freezing of funds in accordance with Regulation 881/2002 because of their association with Usama bin Laden, the Al-Qaida network or the Taliban.

The question was posed whether Regulation No 881/2002 and in particular its Article 2 §3 prohibits registration of the transfer of ownership to a buyer who, after conclusion of the contract of sale, has been placed on the list set out in the Annex to that regulation.

The Court of Justice held that the Regulation does indeed prohibit the registration of the transfer of the land.

The Court referred to German property law which was applicable to the transaction in question. It found that under that law ownership of real property cannot be acquired directly as a result of a contract recorded by a notary of sale between the seller and the purchaser. The two parties must conclude an agreement that ownership is to be transferred and for that transfer to be registered in the Land Register for title to the property to pass to the purchaser. Without that registration title does not pass.

The Court of Justice held that real property is an economic resource which, under Regulation 881/2002, must not be made available to persons on the list. Final registration in the Land Register means, under German law, that the property is made available to the buyer, since, according to the applicable law, it is only after final registration that the buyer acquires title to the property and can mortgage it.

The practical consequence is that the sellers, who have received the purchase price, must reimburse the purchasers in accordance with German law. The Court held that the reimbursement in those circumstances was not caught by Regulation 881/2002.

Finally, the Court pointed out any issue of fundamental rights concerned the indirect effect of Regulation 881/2002 and the reimbursement under national law of the purchase price. Thus, as regards the application of Regulation No 881/2002, in accordance with settled case-law, the requirements flowing from the protection of fundamental rights within the EC legal order are also binding on member States when they implement EC rules. Consequently they are bound, as far as possible, to apply the rules in accordance with those requirements (see, Joined Cases C‑20/00 and C‑64/00, Booker Aquaculture and Hydro Seafood, paragraph 88).

TRIPs Agreement, Direct Effect and Patents: Case C-431/05

The Court of Justice handed down a neat judgment on the direct effect in national law of Article 33 of the TRIPs Agreement.

The Court held in Case C-431/05 Merck Genéricos Produtos Farmacêuticos that it is not contrary to EC law for Article 33 of the TRIPs Agreementto be given direct effect in national law and be applied directly by a national court. The Court also held that it had jurisdiction to interpret Article 33 of the TRIPS Agreement to ascertain whether it is contrary to EC law for that provision to be given direct effect.

Article 33 of the TRIPs Agreement, as everyone surely knows, is in the section on patents and stipulates :

"The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date."

Hands up all those who did not know that.

The Court held that the WTO Agreement, of which the TRIPs Agreement forms part, was signed by the Community and subsequently approved by Decision 94/800. Therefore, according to settled case-law, the provisions of that convention form an integral part of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA, paragraph 36, and Case C-459/03 Commission v Ireland, paragraph 82). Within the framework of that legal order the Court has jurisdiction to give preliminary rulings concerning the interpretation of that agreement (see, Case 12/86 Demirel, paragraph 7).

Because the TRIPs agreement was concluded by the EC and its member States by virtue of joint competence without any allocation between them of their respective obligations towards the other contracting parties, what is decisive in deciding whether the Court of Justice has jurisdiction to interpret the particular stipulation of the TRIPs Agreement is whether the EC has legislated in the field covered by it.

When the field is one in which the EC has not yet legislated and which consequently falls within the competence of the member States, the protection of intellectual property rights and measures taken for that purpose by the judicial authorities do not fall within the scope of EC law, so that the latter neither requires nor forbids the legal order of a member State to accord to individuals the right to rely directly on a rule laid down in the TRIPs Agreement or to oblige the courts to apply that rule of their own motion (Joined Cases C-300/98 and C-392/98 Dior and Others, paragraph 48).

On the other hand, if the EC has enacted rules in the sphere in question, EC law will apply. That means that it is necessary, as far as may be possible, to supply an interpretation in keeping with the TRIPs Agreement (see, Dior and Others, paragraph 47), although no direct effect may be given to the provision of that agreement at issue (Dior and Others, paragraph 44).

In order to answer the question whether there is or there is not any EC legislation covering the subject matter of the TRIPs Agreement, the Court held that a uniform answer at the EC level is required thus justifying giving the Court of Justice exclusive jurisdiction to answer it.

In this case, the Court held that there are no rules on the EC level specifically covering the subject matter of Article 33 of the TRIPs Agreement. Accordingly, the member States remain competent and they can decide whether or not Article 33 has direct effect. It is not contrary to EC law to give that provision direct effect in national law but of course, EC law does not require it to have direct effect.

This judgment will surely be remembered also for containing one of the best and inadvertently funny one line paragraphs:

"As Community law now stands, there is none."

New EU/USA PNR agreement published

The new agreement between the USA and the EU about the transfer of Passenger Name Record data by air carriers to the US Department of Homeland Security has been published.

You can find the agreement itself here. Council Decision 2007/551/CFSP/JHA on the signing of the agreement is available here.

This new agreement - that applies provisionally from the date of signing (July 26th 2007) - replaces the agreement concluded on October 19th 2006 which expired on July 31st 2007 at the latest. (See also Council Decision 2006/729/CFSP/JHA). It is intended to be a long-term arrangement between the two parties that should set this matter to rest.

For previous posts on the matter, see here, here, here and here (there may have been others too, but that is enough for now).