EUROPEAN COURTSJUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RGHTS AND THE

COURT OF JUSTICE OF THE EUROPEAN UNION

No. 3 (March 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

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EUROPEAN COURTS NO. 3 (March 2013)

INDEX

1. JUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RIGHTS

RIGHT TO LIFE (Article 2) PROHIBITION OF TORTURE (Article 3) RIGHT TO A FAIR TRIAL (Article 6) FAMILY LIFE/PRIVACY (Article 8) PROHIBITION OF DISCRIMINATION (Article 14) REFERRAL TO GRAND CHAMBER (Article 43)

2. JUDGMENTS FROM THE EU COURT OF JUSTICE

AGRICULTURE CIVIL AND COMMERCIAL MATTERS COMPETITION COMMON FOREIGN AND SOCIAL SECURITY POLICY EDUCATION ENTRANCE INTO THE COMMUNITY INSURANCES INTELLECTUAL PROPERTY LABOUR LAW SOCIAL SECURITY TAXES (AIR)TRANSPORT

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1. JUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RIGHTS

STRASBOURG

JUDGMENTSRIGHT TO LIFE (Article 2)

JUDGMENT – 12 February 2013 – Eduard Popa v. Moldavia – press release – Read judgment

Police brutality leaving detainee severely disabled could not be proven due to inadequacy of investigation

The case concerned a detainee who complained that ill-treatment inflicted on him by police officers had endangered his life and left him with a severe disability.

The Court found in particular that the police brutality could not be proven due to the numerous shortcomings in the criminal proceedings and therefore held that the Moldovan authorities had failed to conduct an effective investigation into Mr Popa’s allegations.

PROHIBITION OF TORTURE (Article 3)

JUDGMENT – 12 February 2013 – Necati Yilmaz v. Turkey – press release – Read judgment

Lack of effective investigation into acts of violence by Turkish Prime Minister’s bodyguards violated the Convention

The case concerned the injuries sustained by the applicant at the hands of the bodyguards for having allegedly publicly insulted the Turkish Prime Minister at a road- opening ceremony.

The Court found that the authorities had used disproportionate force in the course of a normal arrest and that the criminal investigation carried out to date had led to the bodyguards presumed to be responsible for the violence being granted virtual impunity.

JUDGMENT – 5 February 2013 – Zokhidov v. Russia – press release – Read judgment

Deportation from Russia of Uzbek man suspected of membership of illegal religious organisation exposed him to risk of ill-treatment in his home country.

The case concerned the extradition of an Uzbek national from Russia to Uzbekistan, where he was wanted in connection with his presumed membership of the illegal religious organisation Hizb ut-Tahrir.

The Court found that Mr Zokhidov had been at real risk of ill-treatment in Uzbekistan. His removal there, in contravention of an interim measure indicated by the Court, had moreover removed him from Convention protection, making it impossible for this judgment to be effectively enforced.

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RIGHT TO A FAIR TRIAL (Article 6)

JUDGMENT – 19 February 2013 – Garcia Mateos v. Spain – press release – Read judgment

Refusal to adapt working time to child care: authorities failed to remedy discrimination on grounds of sex.

The case concerned a supermarket employee, who asked for a reduction in her workingtime because she had to look after her son, who was then under six years old.

The Court found that the violation of the principle of non-discrimination on grounds of sex, as established by the Constitutional Court’s ruling in favour of Mrs García Mateos, had never been remedied on account of the non-enforcement of the relevant decision and the failure to provide her with compensation.

JUDGMENT – 19 February 2013 – Gani v. Spain – press release – judgment

Post-traumatic stress of rape victim justified restricting the rights of the defence.

The case concerned a convicted rapist who claimed that he had not been given the opportunity to question the victim despite her being the only witness against him.

The Court concluded that the impossibility for Mr Gani to cross-examine the victim had not breached his defence rights. In particular, the victim’s statement at the hearing had been interrupted owing to severe post-traumatic stress and, following that, sufficient counterbalancing measures had been instituted, such as the reading out of her statements at trial and their thorough assessment by the trial court.

FAMILY LIFE/PRIVACY (Article 8)

JUDGMENT – 19 February 2013 – B. v. Romania (no. 2) – press release – judgment

Confinement in a psychiatric institution should not deprive parents of special legal protection against improper severance of contact with their children.

The case concerned the psychiatric confinement of a mother and the placement in residential care of her two minor children as a result of that decision.

The Court pointed out that in Romania there had been a number of precedents of improper confinement of individuals with psychiatric disorders, in spite of recent legislative changes in favour of patients’ rights. It therefore concluded that, judging from the applicant’s medical history, the authorities had not followed the applicable procedure when deciding on her confinemenv. Furthermore, the absence of special protection, especially through the official appointment of a lawyer or designation of a guardian, had had the effect of depriving the applicant of her right to take part in the decision-making process concerning the placement of her children in residential care.

PROHIBITION OF DISCRIMINATION (Article 14)

JUDGMENT – 19 February 2013 – X and others v. Austria – Grand Chamber – press release – Read judgment

Impossibility of second-parent adoption in a same-sex relationship in Austria is discriminatory in comparison with situation of unmarried different-sex couples.

The case concerned the complaint by two women who live in a stable homosexual relationship about the Austrian courts’ refusal to grant one of the partners the right to adopt the son of the other partner without severing the mother’s legal ties with the child (second-parent adoption).

The Court found that the difference in treatment between the applicants and an unmarried heterosexual couple in which one partner sought to adopt the other partner’s child had been based on the first and third applicants’ sexual orientation. No convincing reasons had been

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advanced to show that such difference in treatment was necessary for the protection of the family or for the protection of the interests of the child.

At the same time, the Court underlined that the Convention did not oblige States to extend the right to second-parent adoption to unmarried couples. Furthermore, the case was to be distinguished from the case Gas and Dubois v. France2, in which the Court had found that there was no difference of treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, secondparent adoption was not open to any unmarried couple, be they homosexual or heterosexual.

JUDGMENT – 12 February 2013 – Vojnity v. Hungary – press release – Read judgment

Total removal of a father’s access rights because of his religion was discriminatory

The case concerned the total removal of a father’s access rights on the grounds that his religious convictions had been detrimental to his son’s upbringing.

The Court found that the Hungarian courts had failed to prove that it was in the child’s best interest to have all ties severed with his father, who had therefore been discriminated against in the exercise of his right to respect for family life. Indeed, there had been no exceptional circumstance to justify taking such a radical measure as severing all form of contact and family life between Mr Vojnity and his son.

If there were any doubts about the suspect nature of religion as a ground of differentiation in the Court’s non-discrimination case law, Vojnity dissipates them all: religion is “suspect.” In my view, the move is certainly positive. It is hard to deny that religion has historically worked as a category of discrimination and persecution and it therefore makes sense to apply heightened scrutiny to differences based on this ground. It is no wonder that in many other cases concerning religious discrimination in custody disputes (see e.g., Hoffmann v. Austria, Palau-Martinez v. France and Deschomets v. France), the applicants belonged to minority or unpopular religious groups. Lourdes Peroni

JUDGMENT – 7 February 2013 –Fabris v. France – Grand Chamber – press release – Read judgment

Refusal to grant inheritance rights to a child “born of adultery” entitled to claim such rights under a new law was unjustified

The applicant complained that he had been unable to benefit from a law introduced in 2001 (Law of 3 December 2001) granting children “born of adultery” identical inheritance rights to those of legitimate children, passed following delivery of the Court’s judgment in Mazurek v. France2 of 1 February 2000.

The Court held that the legitimate aim of protecting the inheritance rights of Mr Fabris’s half-brother and half-sister did not outweigh the applicant’s claim to a share of his mother’s estate and that the difference of treatment in his regard was discriminatory, as it had no objective and reasonable justification.

REFERRAL TO GRAND CHAMBER (Article 43)

11 February 2013 – Vuckovic and others v. Servië – press release – Read judgment

Vuckovic and Others v. Serbia concerns the payment of war per diems to all reservists who served in the Yugoslav Army during the North Atlantic Treaty Organisation’s intervention in Serbia between March and June 1999.

After demobilisation the Serbian Government refused to honour their obligation to the reservists, including the applicants. The reservists organised a series of public protests and, following protracted negotiations, on 11 January 2008 the Government accepted to pay allowances to some of the reservists, notably those residing in seven municipalities considered to be “underdeveloped”. The applicants, who were not residents of those municipalities, brought civil claims before the Serbian courts, seeking payment of the allowances and alleging discrimination. These claims were all rejected and the proceedings before the Constitutional Court are apparently still pending.

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Relying on Article 1 of Protocol No. 1 (protection of property), Article 14 (prohibition of discrimination) and Article 1 of Protocol No. 12 (general prohibition of discrimination), the applicants complain of discrimination concerning the payment of the per diems in question.

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2. JUDGMENTS FROM THE EU COURT OF JUSTICE

LUXEMBURG

JUDGMENTS

AGRICULTURE

JUDGMENT – 7 February 2013 – Case C-454/11 – Pusts – Read judgment

Agriculture – EAGGF – Regulations (EC) No 1257/1999 and No 817/2004 – Support for rural development – Recovery of undue payments – National rules making the grant of agri-environmental aid subject to an annual application accompanied by specific documents – Beneficiary who has complied with his obligations regarding use of the area concerned but who has not submitted an application in accordance with those rules – Withdrawal of the aid, without consulting the beneficiary, in the event of failure by the latter to comply with the provisions applicable to the submission of an application for agri-environmental aid

OPINION – 6 February 2013 – Case C-373/11 – Panellinios Syndesmos Viomichanion Metapoiisis Kapnou – opinion

Regulation (EC) No 1782/2003 – Article 69 – Validity – Regulation No (EC) 795/2004 – Article 48 – Common Agricultural Policy – Additional payment for specific types of farming and quality production – Implementation by a Member State – Discrimination – Articles 2, 32, 33 and 34 EC

CIVIL AND COMMERCIAL MATTERS

JUDGMENT – 21 februari 2013 – Case C-332/11 – ProRail – – Read judgment

Regulation (EC) No 1206/2001 – Cooperation in the taking of evidence in civil and commercial matters – Direct taking of evidence – Designation of an expert – Task carried out partly in the Member State of the referring court and partly in another Member State

JUDGMENT – 7 februari 2013 – Case C-543/10 – Refcomp – press release – Read judgment – comment

Judicial cooperation in civil matters – Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Interpretation of Article 23 – Jurisdiction clause in a contract concluded between the manufacturer and the initial buyer of goods – Contract forming part of a chain of contracts transferring ownership – Whether that clause may be relied on against the sub-buyer of the goods

In the context of successive contracts concluded between parties established in different Member States, a jurisdiction clause incorporated in a contract for sale between the manufacturer and the buyer of goods cannot be relied on by a sub-buyer of those goods, unless he has agreed to that clause.

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COMPETITION

CONCLUSIE – 28 February 2013 – Case C-681/11 – Schenker – opinion

Competition – Agreements, decisions and concerted practices – Article 85 EEC, Article 81 EC and Article 101 TFEU – Regulation (EEC) No 17 – Regulation (EC) No 1/2003 – Error by an undertaking as to whether its conduct is contrary to competition law (error of law) – Attributability of the error of law – Expectations created by legal advice – Expectations as to the correctness of a decision taken by a national competition authority – Request to be heard as a cooperative witness under national competition law – Power of a national competition authority to find a cartel offence without imposing penalties

JUDGMENT – 28 February 2013 – Case C-1/12 – Ordem dos Técnicos Oficiais de Contas – press release – judgment

EU law precludes a professional association from imposing on its members a system of compulsory training which in part eliminates competition and lays down discriminatory conditions to the detriment of its competitors. The fact that a professional association is required by law to put into place a system of compulsory training does not remove the rules adopted by that association from the scope of EU law.

OPINION – 28 February 2013 – Zaak C-287/11 P – Commission/ Aalberts Industries – opinion

Appeal – Agreements, decisions and concerted practices – European market in copper and copper alloy fittings – Article 81 EC and Article 53 of the EEA Agreement – Fixing prices, discounts and rebates, introduction of mechanisms for coordinating price increases, allocating customers and exchanging commercial information – Concept of undertaking – Single, continuous infringement – Annulment of the Commission decision in whole or in part

JUDGMENT – 7 februari 2013 – Case C-68/12 – Slovenská sporiteľňa – press release – arrest – Read judgment

Agreements, decisions and concerted practices – Agreement concluded between a number of banks – Competitor allegedly operating unlawfully on the market concerned – Effect – None

OPINION – 7 februari 2013 – Case C-536/11 – Donau Chemie and others – opinion – comment

Competition – Action for damages – Evidence – Admissibility – Third party access to completed public law competition proceedings to support civil action – Access request by an association representing third parties potentially affected by a cartel – Legislative ban on access without the consent of all parties to public law competition proceedings – Absence of a judicial power to weigh relevant factors, including protection of evidence gathered in leniency proceedings as against effet utile – Principles of equivalence and effectiveness – Article 19(1) TEU – Article 101 TFEU – Charter of Fundamental Rights of the European Union – Article 47

COMMON FOREIGN AND SOCIAL SECURITY POLICY

JUDGMENT – 20 februari 2013 – Case T-492/10 – Melli Bank / Raad – Read judgment

Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Entity wholly owned by an entity identified as being involved in nuclear proliferation – Plea of illegality – Obligation to state reasons – Rights of the defence – Right to effective judicial protection

JUDGMENT – 5 februari 2013 – Case T-494/10 – Bank Saderat Iran / Raad – Read judgment

Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Manifest error of assessment

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CRIMINAL MATTERS

JUDGMENT – 26 februari 2013 – Case C-617/10 – Åkerberg Fransson – Grand Chamber – press release – arrest – Read judgment

Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment)

Åkerberg Fransson won't go down in the history books as one of the classics of EU law but it is nonetheless an important piece in the puzzle as to the applicability of the Charter. Personally I believe that the Court makes the right choice when it states that the Charter applies to situations falling within the scope of EU law, as opposed to strictly limiting it to situations concerning national legislation implementing EU law. However, the case unfortunately leaves a slightly sour aftertaste since the Court could have graced us with more precise guidelines as to the applicability of the principle of ne bis in idem, in particular in the light of the case law of the European Court of Human Rights. Eulawstudent

The CJEU rightfully avoids a lacuna in the system of fundamental rights protection, and also avoids legal difficulties as to how a different scope of the Charter would be reconciled with older case law on fundamental rights protection. I don’t see the difficulties the Advocate General discussed in his musings on implementation of EU law. If Member States are enforcing substantive EU norms through administrative and criminal penalties, the CJEU clearly should be able to oversee uniform application of EU law, especially considering the fact that article 2 TEU states that the ‘Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. Simply passing the buck to Member States is not part of that. Europeanlawblog

JUDGMENT – 26 February 2013 – Case C-399/11 – Melloni – Grand Chamber – press release – Read judgment

Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment

EDUCATION

JUDGMENT – 21 February 2013 – Case C-46/12 – LN – Read judgment

OPINION – 21 februari 2013 – Gevoegde zaken C-523/11 + C-585/11 – Prinz Seeberger – press release – opinion

Freedom of movement for EU citizens – Funding for higher education abroad – Residence requirement – ‘Three-year rule’ – Proportionality

ENTRANCE INTO THE COMMUNITY

OPINION – 21 February 2013 – Case C-648/11 – MA and others – press release – Read opinion

Regulation (EC) No 343/2003 (Dublin II) – Determining the Member State responsible for examining asylum applications lodged by unaccompanied minors who are third-country nationals – Several applications – Best interests of the minor

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INSURANCES

JUDGMENT – 21 February 2013 – Case C-243/11 – RVS Levensverzekeringen – Read judgment

Direct life assurance – Annual tax on assurance transactions – Directive 2002/83/EC – Articles 1(1)(g) and 50 – Definition of ‘Member State of the commitment’ – Assurance undertaking established in the Netherlands – Policyholder having taken out an assurance contract in the Netherlands and transferred his habitual residence to Belgium after the contract was concluded – Freedom to provide services

INTELLECTUAL PROPERTY

JUDGMENT – 21 February 2013 – Case C-561/11 – Fédération Cynologique Internationale – Read judgment

Community trade marks – Regulation (EC) No 207/2009 – Article 9(1) – Concept of ‘third party’ – Proprietor of a later Community trade mark

JUDGMENT – 20 February 2013 – Case T-378/11 – Langguth Erben / OHMI (MEDINET) – Read judgment

Community trade mark – Application for the Community figurative mark MEDINET – Earlier national and international figurative marks MEDINET – Claim of seniority of the earlier national and international marks – Earlier marks in colour and Community trade mark applied for not designating any specific colour – Signs not identical – Article 34 of Regulation (EC) No 207/2009 – Obligation to state reasons – Article 75 of Regulation (EC) No 207/2009 – Expediency of oral proceedings – Article 77 of Regulation (EC) No 207/2009

LABOUR LAW

JUDGMENT – 28 February 2013 – Zaak C-427/11 – judgment

Article 141 EC – Directive 75/117/EEC – Equal pay for men and women – Indirect discrimination – Objective justification – Conditions

OPINION – 19 February 2013 – Case C-426/11 – Alemo-Herron and others – Read opinion

Transfer of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(3) – Collective agreement applicable to the transferor and to the employee at the time of the transfer – Dynamic clauses referring to current and future collective agreements – Scope of the judgment of the Court of Justice in Werhof – Negative aspect of the fundamental right to freedom of association – Freedom to conduct a business – Articles 12 and 16 of the Charter of Fundamental Rights of the European Union

SOCIAL SECURITY

JUDGMENT – 21 February 2013 – Case C282/11 – Salgado González – press release – Read judgment

Article 48 TFEU – Social security for migrant workers – Regulation (EEC) No 1408/71 and (EC) No 883/2004 – Old-age and survivor’s insurance – Special provisions for the application of national legislation relating to old-age pensions – Calculation of benefits

EU law precludes the Spanish legislation concerning the method of calculation of retirement pensions, inasmuch as the method used does not take sufficient account of the fact that the applicant has also worked in a Member State other than Spain

JUDGMENT – 21 February 2013 – Case C-619/11 – Dumont de Chassart – Read judgment

Social security – Regulation (EEC) No 1408/71 – Articles 72, 78(2)(b) and 79(1)(a) – Family benefits for orphans – Aggregation of periods of insurance and employment – Periods completed by the surviving parent in another Member State – Not taken into account

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TAXES

JUDGMENT – 28 February 2013 – Case C-168/11 – Beker and Beker – judgment

Free movement of capital – Income tax – Income from capital – Convention for the avoidance of double taxation – Dividends distributed by companies established in Member States and third countries – Calculation of the maximum amount of foreign withholding tax deductible against national income tax – Failure to take account of personal and lifestyle costs – Justification

JUDGMENT – 28 February 2013 – Case C-544/11 – Petersen and Petersen – judgment

Freedom to provide services – Freedom of movement for workers – Legislation of a Member State allowing exemption from taxation on income received for work carried out in another State in the context of development aid – Conditions – Establishment of the employer within the national territory – Refusal where the employer is established in another Member State

JUDGMENT – 28 February 2013 – Case C-425/11 – Ettwein – judgment

Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons – Equal treatment – Self-employed frontier workers – Nationals of a Member State of the Union – Business income received in that Member State – Transfer of residence to Switzerland – Refusal of a tax advantage in that Member State because of the transfer of residence

JUDGMENT – 21 February 2013 – Case C-123/11 – A – arrest – Read judgment

Freedom of establishment – Article 49 TFEU – Tax legislation – Merger of a parent company established in one Member State with a subsidiary established in another Member State – Deductibility by the parent company of the subsidiary’s losses arising from its activity – Exclusion for non-resident subsidiaries

JUDGMENT – 21 February 2013 – Case C-18/12 – Žamberk – Read judgment

Taxation – VAT – Directive 2006/112/EC – Article 132(1)(m) – Exemption – Supply of services closely linked to sport or physical education – Taking part in sporting activities of a non-organised and unsystematic nature – Municipal aquatic park

JUDGMENT – 21 February 2013 – Case C-104/12 – Becker – Read judgment

Sixth VAT Directive – Article 17(2)(a) – Right to deduct input tax – Need for a direct and immediate link between an input and an output transaction – Criterion for determining that link – Services of lawyers performed in the context of criminal proceedings for corruption brought in a personal capacity against the managing director and main partner of a limited company

OPINION – 7 February 2013 – Case C-6/12 – P Oy – Read opinion

State aid – Tax advantages – Existing or new aid – Relevant monitoring system and procedural rules

TENDER

OPINION – 28 FEBRUARY 2013 – Case C-94/12 – Swm Costruzioni and Mannocchi Luigino – opinion

Directive 2004/18/EC – Award of public works contracts – Economic and financial standing of an economic operator – Technical and/or professional ability of an economic operator – Reliance on the capacities of more than one auxiliary undertaking

(AIR)TRANSPORT

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ARREST – 28 February 2013 – Cases C-473/10, C-483/10, C-555/10, C-556/10 – Commission/Hungary, Spain, Austria, Germany – press release – judgment

Failure of a Member State to fulfil obligations – Development of the Community’s railways – Allocation of railway infrastructure capacity – Levying of charges for the use of railway infrastructure – Directives 91/440/EEC and 2001/14/EC – Incomplete transposition

JUDGMENT – 26 February 2013 – Case C-11/11 – Folkerts – Grand Chamber – press release – Read judgment

Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Articles 6 and 7 – Connecting flight(s) – Delay in arrival at the final destination – Delay equal to or in excess of three hours – A passenger’s right to compensation

Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that compensation is payable, on the basis of that article, to a passenger on directly connecting flights who has been delayed at departure for a period below the limits specified in Article 6 of that regulation, but has arrived at the final destination at least three hours later than the scheduled arrival time, given that the compensation in question is not conditional upon there having been a delay at departure and, thus, upon the conditions set out in Article 6 having been met.

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