Newsletter 2013 4

EUROPEAN COURTSJUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RGHTS AND THE

COURT OF JUSTICE OF THE EUROPEAN UNION

No. 4 (April 2013)

‘Abduction of Europa’ (Rembrandt van Rijn, 1632 - detail)

European Courts is an EU and ECHR law blog for judges, legal practitioners, legal academics and other interest groups.

Its general objective is a better understanding of EU and human rights law. This blog also aims at bridging the gap between the law in the books and the law in action. It creates a platform of exchange of knowledge and experiences between judges and academics.

European Courts publishes a monthly newsmagazine that provides an overview of recent case law from the European Court of Human Rights in Strasbourg and the Court of Justice of the European Union.

Editors: Marc de Werd, Roel Andrea, Robin Cozijnsen, Menco Rasterhoff, Nienke de Visser, Mirjam Winkels.

This newsletter is still under construction.

Copyright © 2013 Marc de Werd

Follow European Courts on twitter: @EuropeanCourts

EUROPEAN COURTS NO. 4 (April 2013)

INDEX

1. JUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RIGHTS

READ THE COURT’S CASE LAW INFORMATION NOTES RIGHT TO LIFE (Article 2) PROHIBITION OF TORTURE (Article 3) RIGHT TO LIBERTY AND SECURITY (Article 5) RIGHT TO A FAIR TRIAL (Article 6) RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE (Article 8) FREEDOM OF EXPRESSION (Article 10)

2. JUDGMENTS FROM THE EU COURT OF JUSTICE

ACCESS TO DOCUMENTS AGRICULTURE CIVIL AND COMMERCIAL MATTERS COMMON FOREIGN AND SOCIAL SECURITY POLICY COMPETITION CONSUMERS ENVIRONMENT INSURANCES INTELLECTUAL PROPERTY PENSIONS SCHENGEN STATE AID TAXES TELECOMMUNICATION SERVICES (AIR)TRANSPORT

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1. JUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RIGHTS

STRASBOURG

JUDGMENTS

READ THE COURT’S CASE LAW INFORMATION NOTES

The Court publishes fact sheets on Strasbourg case law and case law information notes.

RIGHT TO LIFE (Article 2)

JUDGMENT – 12 March 2013 – Aydan v. Turkey – press release – JUDGMENT

A gendarme who fired lethal shots on the fringes of a demonstration could not claim impunity on grounds of self-defence.

The case concerned the accidental death of a passer-by who was shot by a gendarme onthe fringes of a violent demonstration.

The Court held that it was not established that the force used to disperse the demonstrators, which had caused A. Aydan’s death, had been necessary; that the State had failed in its obligation to secure the right to life; and lastly, that the courts should have carried out more detailed inquiries or reassessed the evidence in order to take account of the contradictions between witnesses’ statements.

PROHIBITION OF TORTURE (Article 3)

JUDGMENT – 28 March 2013 – I.K. v. Austra – press release – judgment

Removal of Chechen man from Austria to Russia would expose him to risk of ill-treatment.

The case concerned the complaint by a Russian national of Chechen origin that his removal from Austria to Russia would expose him to the risk of ill-treatment, as his family had been persecuted in Chechnya.

The Court held in particular that there was no indication that Mr K. would be at a lesser risk of persecution upon return to Russia than his mother, who had been granted asylum in Austria, the Austrian courts having found her account convincing. Furthermore, there were recent reports documenting the practice of collective punishment of relatives and suspected supporters of alleged insurgents.

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JUDGMENT – 26 March 2013 – Valiulienė t. Lithuania – press release – judgment

Lithuanian authorities failed to effectively investigate complaints of domestic violence.

The case concerned the complaint by a woman who was a victim of domestic violence about the authorities’ failure to investigate her allegations of ill-treatment and to bring her partner to account.

The Court found that the authorities’ application of the code of criminal procedure in Ms Valiulienė’s case had not provided her with adequate protection against acts of domestic violence. In particular, there had been delays in the criminal investigation and the public prosecutor had decided to discontinue the investigation.

JUDGMENT – 14 March 2013 – Salakhov and Islyamova v. Ukraine – press release – judgment

The case concerned the lack of appropriate medical care given to a detainee, who died from AIDS two weeks after he was released from detention.

JUDGMENT – 5 March 2013 – Gülay Çetin v. Turkey – press release – judgment

Inadequacy of arrangements for protecting pre-trial detainees with serious illnesses.

The case concerned a person who complained that she had been kept in prison, initially pending trial and later following her conviction for murder, despite suffering from advanced cancer.

The Court concluded that the conditions of the applicant’s detention, both before and after her final conviction, had amounted to inhuman and degrading treatment, and that she had been discriminated against in that, while in pre-trial detention, she had not been eligible for the protective measures applicable to convicted prisoners suffering from serious illnesses.

The Court also recommended under Article 46 (binding force and execution of judgments) that the Turkish authorities take measures to protect the health of prisoners with incurable diseases, whether they were being held pending trial or following a final conviction.

RIGHT TO LIBERTY AND SECURITY (Article 5)

JUDGMENT– 7 March 2013 – Ostendorf v. Germany – press release – judgment

Football supporter’s placement in police custody to prevent him from taking part in hooligan violence was justified.

The case concerned a football supporter’s complaint about his four-hour police custody in order to prevent him from organising and taking part in a violent brawl between football hooligans.

The Court found that Mr Ostendorf’s police custody had been justified under Article 5 § 1 (b) as detention “in order to secure the fulfilment of an obligation prescribed by law”. It held in particular that his custody had served to fulfil the specific and concrete obligation on Mr Ostendorf to refrain from arranging a brawl between opposing groups of hooligans at a football match on 10 April 2004.

RIGHT TO A FAIR TRIAL (Article 6)

JUDGMENT – 14 March 2013 – Oleynikov v. Russia – press release– judgment

Immunity of a foreign State in relation to a private transaction should not have been absolute.

The case concerned a Russian national who complained about the refusal by the Russiancourts to examine his claim concerning the repayment of a loan to the Traderepresentation of North Korea.

The Court held that the limitation of Mr Oleynikov’s right of access to court had pursuedthe legitimate aim of promoting good relations between States through the respect of

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national sovereignty. However, it concluded that the Russian courts had failed toexamine whether the nature of the transaction underlying the claim was of a private lawnature and to take into account the provisions of international law in favour of restrictiveimmunity.

RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE (Article 8)

JUDGMENT – 26 March 2013 – Zorica Jovanović t. Servië – press release– judgment

Missing babies from hospitals: Serbia must give credible answers about what has happened to each child and compensate the parents.

The case concerned the alleged death of Ms Jovanović’s healthy newborn son in 1983 in a State-run hospital. She was never allowed to see his body and suspects that her son may even still be alive, having unlawfully been given up for adoption.

The Court found that, although the procedure in hospitals when newborns die had been improved and reports had been drawn up by Parliament to investigate the missing babies cases, ultimately nothing had been done to remedy the ordeal suffered by the parents, including the applicant, in the past. Therefore the Court concluded that Ms Jovanović had suffered a continuing violation of the right to respect for her family life due to Serbia’s continuing failure to provide her with credible information as to what has happened to her son.

JUDGMENT – 14 March 2013 – Bernh Larsen Holding As v. Norway – press release – judgment

Tax authorities’ request for company to provide copy of computer server used jointly with other companies was legitimate.

The case concerned the complaint by three Norwegian companies about a decision of the tax authorities ordering tax auditors to be provided with a copy of all data on a computer server used jointly by the three companies.

The Court agreed with the Norwegian courts’ argument that, for efficiency reasons, tax authorities’ possibilities to act should not be limited by the fact that a tax payer was using a “mixed archive”, even if that archive contained data belonging to other tax payers. Moreover, there were adequate safeguards against abuse.

JUDGMENT – 7 March 2013 – Raw v. France – press release – judgment

French authorities’ failure to comply with an order to return children to their mother in the United Kingdom breached the right to respect for private and family life.

The case concerned the failure to execute a judgment confirming an order to return underage children to their mother in the United Kingdom, their divorced parents having shared residence rights. The children wished to stay with their father in France.

The Court held that although children’s opinion had to be taken into account when applying international law, notably the Hague Convention and Brussels Regulation II bis, their objections were not necessarily sufficient to prevent their return.

FREEDOM OF EXPRESSION (Article 10)

JUDGMENT – 14 March 2013 – Eon v. France – press release – judgment

Conviction of political activist for insulting the French President infringed his freedom of expression.

The case concerned the applicant’s conviction for insulting the President of France. During a visit by the President to the département of Mayenne, the applicant had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously.

The Court held that criminal penalties for conduct such as that displayed by the applicant

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were likely to have a chilling effect on satirical contributions to discussion of matters of public interest, such discussion being fundamental to a democratic society.

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2. JUDGMENTS FROM THE EU COURT OF JUSTICE

LUXEMBURG

JUDGMENTS

ACCESS TO DOCUMENTS

JUDGMENT – 19 March 2013 – Case T-301/10 – In 't Veld / Commission – judgment – comment

Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the draft international Anti-Counterfeiting Trade Agreement (ACTA) – Negotiating documents – Refusal to grant access – Exception relating to the protection of the public interest with regard to international relations – Manifest error of assessment – Proportionality – Obligation to state reasons

AGRICULTURE

JUDGMENT – 14 March 2013 – Case C-545/11 – Agrargenossenschaft Neuzelle – judgment

Common agricultural policy – Regulation (EC) No 73/2009 – Article 7(1) and (2) – Modulation of direct payments granted to farmers – Further reduction in the amount of direct payments – Validity – Principle of the protection of legitimate expectations – Principle of non-discrimination

CIVIL AND COMMERCIAL MATTERS

JUDGMENT – 14 March 2013 – Case C-419/11 – Česká spořitelna – judgment

Regulation (EC) No 44/2001 – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Articles 5(1)(a) and 15(1) – Concepts of ‘matters relating to a contract’ and ‘contract concluded by a consumer’ – Promissory note – Aval – Guarantee provided for a credit contract

COMMON FOREIGN AND SOCIAL SECURITY POLICY

OPINION – 19 March 2013 – C-584/10 P + C-593/10 P + C-595/10 P – Commission/ Kadi – press release – opinion – comment

Appeal – Common foreign and security policy (CFSP) – Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Regulation (EC) No 881/2002 – Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations – Committee of the Security Council created by paragraph 6 of Resolution 1267 (1999) of the Security Council (Sanctions Committee) – Inclusion of a person in Annex I to Regulation (EC) No 881/2002 – Action for annulment – Fundamental rights – Right to be

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heard, right to effective judicial review and right to respect for property – Extent and intensity of judicial review

COMPETITION

JUDGMENT – 14 March 2013 – Case C-32/11 – Allianz Hungária Biztosító – press release – judgment

Competition – Article 101(1) TFEU – Application of similar national regulations – Jurisdiction of the Court – Bilateral agreements between an insurance company and car repairers relating to hourly repair charges – Charges paid depending on the number of insurance contracts concluded for the insurance company by those repairers in their capacity as brokers – Concept of ‘agreement having as its object the restriction of competition’

CONSUMERS

JUDGMENT – 21 March 2013 – Case C-92/11 – RWE Vertrieb – press release – judgment

Directive 2003/55/EC – Internal market in natural gas – Directive 93/13/EEC – Articles 1(2) and 3 to 5 – Contracts between suppliers and consumers – General conditions – Unfair terms – Unilateral alteration by the supplier of the price of the service – Reference to mandatory legislation designed for another category of consumers – Applicability of Directive 93/13 – Obligation of use of plain and intelligible language and transparency

JUDGMENT – 14 March 2013 – Case C-415/11 – Aziz – press release – judgment

Directive 93/13/EEC – Consumer contracts – Mortgage loan agreement – Mortgage enforcement proceedings – Powers of the court hearing the declaratory proceedings – Unfair terms – Assessment criteria

ENVIRONMENT

JUDGMENT – 21 March 2013 – Case C-244/12 – Salzburger Flughafen – press release – judgment

Assessment of the effects of certain projects on the environment – Directive 85/337/EEC– Articles 2(1) and 4(2) – Projects listed in Annex II – Extension works to the infrastructure of an airport – Examination on the basis of thresholds or criteria – Article 4(3) – Selection criteria – Annex III, point 2(g) – Densely populated areas

OPINION – 21 March 2013 – Case C-515/11 – Deutsche Umwelthilfe – opinion

Access to environmental information held by or for public authorities – Scope of the exception in Article 2(2) of Directive 2003/4/EC – Whether public authorities adopting executive regulatory instruments act in a legislative capacity

JUDGMENT – 14 March 2013 – Case C-420/11 – Leth – press release – judgment

Environment – Directive 85/337/EEC – Assessment of the effects of certain public and private projects on the environment – Consent for such a project without an appropriate assessment – Objectives of that assessment – Conditions to which the existence of a right to compensation are subject – Whether protection of individuals against pecuniary damage is included

JUDGMENT – 7 March 2013 – Case C-358/11 – Lapin ELY-keskus, liikenne ja infrastruktuuri – judgment

Environment – Waste – Hazardous waste – Directive 2008/98/EC – Old telecommunications poles treated with CCA (copper-chromium-arsenic) solutions – Registration, evaluation and authorisation of chemicals – Regulation (EC) No 1907/2006 (REACH Regulation) – List of uses for treated wood in Annex XVII to the REACH Regulation – Old telecommunications poles used as underlay for duckboards

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JUDGMENT – 7 March 2013 – Case T-93/10 – Bilbaína de Alquitranes/ ECHA – judgment

REACH – Identification of pitch, coal tar, high temperature as a substance of very high concern – Actions for annulment – Actionable measure – Regulatory act not entailing implementing measures – Direct concern – Admissibility – Equal treatment – Proportionality

JUDGMENT – 7 March 2013 – Case T-94/10 – Rütgers Germany / ECHA – judgment

REACH – Identification of anthracene oil as a substance of very high concern – Actions for annulment – Actionable measure – Regulatory act not entailing implementing measures – Direct concern – Admissibility – Equal treatment – Proportionality

JUDGMENT – 7 March 2013 – Case T-370/11 – Poland / Commission – press release – judgment

Environment – Directive 2003/87/EC – Scheme for greenhouse gas emission allowance trading – Transitional rules for harmonised free allocation of emission allowances from 2013 – Benchmarks to be applied to calculate the allocation of emission allowances – Equal treatment – Proportionality

INSURANCES

JUDGMENT – 7 March 2013 – Case C-577/11 – DKV Belgium - judgment

Freedom to provide services – Freedom of establishment – Directives 73/239/EEC and 92/49/EEC – Direct insurance other than life assurance – Freedom to set rates – Health insurance contracts not linked to professional activity – Restrictions – Overriding reasons in the public interest

INTELLECTUAL PROPERTY

JUDGMENT – 7 March 2013 – Case C-607/11 – ITV Broadcasting – press release – judgment

Directive 2001/29/EC – Article 3(1) – Broadcasting by a third party over the internet of signals of commercial television broadcasters – ‘Live streaming’ – Communication to the public

PENSIONS

JUDGMENT – 7 March 2013 – Case C-127/11 – van den Booren – judgment

Social security for migrant workers – Article 46a of Regulation (EEC) No 1408/71 – National rules against overlapping – Old-age pension – Increase in the amount paid by a Member State – Survivor’s pension – Reduction in the amount paid by another Member State

SCHENGEN

JUDGMENT – 21 March 2013 – Case C-254/11 – Shomodi – judgment

Area of freedom, security and justice – ‘Local border traffic’ at the external land borders of the Member States – Regulation (EC) No 1931/2006 – Regulation (EC) No 562/2006 – Maximum duration of stay – Rules for calculation

STATE AID

JUDGMENT – 19 March 2013 –C-399/10 P + C-401/10 P – Bouygues and Bouygues Télécom / Commission + Commission / France – press release – judgment – comment

Appeals – State aid – Financial measures in favour of France Télécom – Shareholder loan proposal – Public declarations by a member of the French Government – Decision declaring the aid incompatible with the common market and not ordering its recovery – Concept of State aid – Concept of economic advantage – Concept of commitment of State resources

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TAXES

JUDGMENT – 21 March 2013 – Case C-91/12 – PFC Clinic – judgment

VAT – Directive 2006/112/EC – Exemptions – Article 132(1)(b) and (c) – Hospital and medical care and closely related activities – Provision of medical care in the exercise of the medical and paramedical professions – Services consisting in the performance of plastic surgery and cosmetic treatments – Interventions of a purely cosmetic nature based solely on the patient’s wishes

JUDGMENT – 21 March 2013 – Case C-129/12 – Magdeburger Mühlenwerke – judgment

Regional aid scheme – Investment in the processing and marketing of agricultural products – Commission decision – Incompatibility with the internal market – Abolition of incompatible aid – Time at which aid is granted – Principle of the protection of legitimate expectations

JUDGMENT – 14 March 2013 – Case C-216/11 – Commission / France – judgment

Failure of a Member State to fulfil obligations – Council Directive 92/12/EEC – Excise duties – Tobacco products acquired in one Member State and transported to another Member State – Purely quantitative assessment criteria – Article 34 TFEU – Quantitative restrictions on imports

JUDGMENT – 14 March 2013 – Case C-527/11 – Ablessio – judgment

VAT – Directive 2006/112/EC – Articles 213, 214 and 273 − Identification of taxable persons subject to VAT – Refusal to assign a VAT identification number on the ground that the taxable person is not in possession of the material, technical and financial resources to carry out the declared economic activity – Legality – Countering tax evasion – Principle of proportionality

OPINION – 7 March 2013 – Case C-219/12 – Fuchs – opinion

VAT – Definition of ‘economic activity’ – Photovoltaic system installed on the roof of a private household – Electricity sold to a provider who supplies the household’s electricity needs

JUDGMENT – 7 March 2013 – Case C-275/11 – GfBk – judgment

Taxation – Value added tax – Directive 77/388/EEC – Exemption of the management of special investment funds – Scope

JUDGMENT – 7 March 2013 – Case C-424/11 – Wheels Common Investment Fund Trustees – judgment

Value added tax – Directive 77/388/EEC – Exemption of the management of special investment funds – Scope – Occupational retirement pension schemes

JUDGMENT – 19 March 2013 – Case T-324/10 – Firma Van Parys / Commission – judgment

Customs union – Imports of bananas from Ecuador – Post-clearance recovery of import duties – Request for remission of import duties – Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 – Error by the customs authorities – Obvious negligence on the part of the interested party

JUDGMENT – 7 March 2013 – Case C-182/12 – Fekete – judgment Community Customs Code – Article 137 – Regulation implementing the Customs Code – Article 561(2) – Conditions for total relief from import duties – Importation into a Member State of a vehicle whose owner is established in a third country – Private use of the vehicle authorised by the owner otherwise than by an employment contract concluded with the user – No relief

TELECOMMUNICATION SERVICES

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JUDGMENT – 21 March 2013 – Case C-375/11 – Belgacom – judgment

Telecommunication services – Directive 2002/20/EC – Articles 3 and 12 to 14 – Rights to use radio frequencies – Fees for rights to use radio frequencies – One-off fees for grant and renewal of rights to use radio frequencies – Method of calculation – Alteration of existing rights

(AIR)TRANSPORT

OPINION – 14 March 2013 – Case C-509/11 – ÖBB-Personenverkehr – opinion

Regulation (EC) No 1371/2007 on rail passengers rights and obligations – Article 17 – Conditions for ticket price compensation in case of delay, missed connections and cancellations – Compensation precluded for delays caused by force majeure – Article 30 – Powers of a national body charged with enforcement of Regulation No 1371/2007 – Whether Article 30 of Regulation No 1371/2007 authorises the national body to order railway undertakings to alter compensation terms that do not comply with Regulation No 1371/2007 – Legal effects of European Union regulations – Principle of effet utile – Meaning of ‘court or tribunal’ under Article 267 TFEU – General principles of EU law – Duties and powers of Member State administrative authorities to issue remedies when compared with Member State courts and tribunals

JUDGMENT – 7 March 2013 – Case C-547/10 P – Suisse / Commission – judgment

Appeal – External relations – Agreement between the European Community and the Swiss Confederation on air transport – Regulation (EEC) No 2408/92 – Access of Community air carriers to intra-Community air routes – Articles 8 and 9 – Scope – Exercise of traffic rights – Decision 2004/12/EC – German measures relating to the approaches to Zurich Airport – Duty to state reasons – Non-discrimination – Proportionality – Burden of proof

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