ECJ Watch

My book ‘Product Liability Law in Transition - A Central European Perspective’ is finally in print. The publication date is January 2009, publisher - Ashgate.

When Mr Turco called for disclosure of legal advice which the Council of Ministers received when it deliberated on the draft directive on minimum standards for reception of asylum seakers in the EU, not many predicted that the ECJ would allow access to such legal advice! With all respect due, the EU legislature is not exactly the most transparent of all.

But here it is - the ECJ judgement which overturns the earlier CFI decision - allowing access to legal advice given to the Justice and Home Affairs Council of Ministers. No need to analyse the judgement in detail here - the EU Law Blog already did this very well. Instead, a few observations on this judgement:

First and foremost - let us all hope that it is not just a glitch in the system, that this approach will be followed by the ECJ and maybe even (daydreaming…) create a culture of greater openness and transparency in the EU policy and legislative circles.

Second - on a more practical note - the Council argued during the proceedings, and the CFI agreed, that disclosure of the legal advice leading to adoption of legislation may cause controversies concerning the legality of this particular piece of legislation. Well… - are they saying that if we saw what the lawyers thought we would realise how little what the Council were doing has to do with … legitimacy or legality? Sure they did not mean to say that…

Third - those of us wondering what the Regulation on Public Access to Parliament, Council and Commission Documents (1049/2001) meant in practice have been given some food for thought. The exceptions to the right of access established in Article 4 have been read by the ECJ quite restrictively!

Long live transparency

ECJ confirmed supremacy of EU rules governing free movement of persons (especially the Directive 2004/38) in the Metockjudgement of 25 July 2008. The judgement already caused a big stirr in some European states - for instance in Denmark, including some calls to ignore it completely! (link for those reading Danish here).

The issue was Irish immigration law, which in common with other Member States’ laws gives the right of residence to non-EU citizens who are family members of EU citizens. There were two main problems:

1. Ireland made the right of residence for non-EU family members contingent on them having lived in another EU Member State before they arrived in Ireland. The Irish Minister of Justice and some other governments argued that there was a division of competence between the EU and national laws here: while EU residence rules applied to non-EU nationals who arrived from other Member States, national residence rules were to be applied to those who came from outside the EU. Such division of competence allowed, according to them, Member States to control immigration at their external frontiers adequately. The ECJ did not agree - after all, it argued, EU law (Directive 2004/38) allows Member States to control immigration based on public policy, security and public health concerns. The latter limitations, however, must be applied individually. A Member State cannot introduce more restrictive measures.

2. It was not entirely clear whether a non-EU person can enjoy the right of residence if he/she married an EU-citizen when he/she was already in the EU, and whether there should be any restrictions on the right to bring new family members (like new spouses) back into the home country after having spent a very short time in another Member State (remember that this is the requirement for EU law to actually be applicable - it does not apply to those EU nationals who have never left their home state). The ECJ’s decision is that the right of residence applies whenever the marriage took place and however the non-EU-person entered the Member State territory.

The Environmental Liability Directive is an interesting point for reflection about the rationale and the true consequences of legal harmonization in the EU. It establishes quite stringent liability for polluting the environment (’polluter-pays’ principle). The thought itself is commendable, and certainly in line with the EU environmental policy and international environmental commitments. Member States voted to introduce such stringent liability rules for polluters - why, then, 9 Member States still have not implemented it? These are: Austria, Belgium (not all of it, curiously), Greece, Finland, France, Ireland, Luxembourg, Slovenia, and the UK.

‘Follow the money’ is always a good answer - it certainly fits here as well. Clearly, protecting the environment costs money. Our good intentions and the will to provide the level playing field for businesses (polluters in particular) across Europe may not be enough when the costs of doing business, and the wealth and power of industry, are so very different in various Member States.

What next, then? According to Article 226 EC Treaty the Commission may, after the formal ‘administrative stage’ involving sending a reasoned opinion to the Member State governments, bring the matter before the ECJ. No doubt this will end, finally, with the implementation of the Directive. Have we thought about the costs, though? I am all for protecting the environment, but perhaps in this case the intentions overtook the economic reasoning and, well, ever so slightly …. common sense?

A short note on what has been happening to the Unfair Commercial Practices Directive on the Member State level. The UK has recently implemented the Directive by enacting Consumer Protection from Unfair Trading Regulations 2008 (in force since 26 May 2008) and by amending the Enterprise Act 2002 (especially part 8).

The Directive requires effective enforcement, in fact it is quite comprehensive about it. But it is still really interesting for the UK to establish a criminal offence of “knowingly or recklessly” engaging in unfair commercial practices (Section 8 of Part 3). One the one hand it is commendable how seriously the UK took its implementation responsibilities, and protection of consumers in general. The enforcement authorities (especially the Trading Standards Officers) perhaps prefer using the criminal path rather than one of civil enforcement through a court (for the latter see Enterprise Act 2002). But on the other hand one could question the fairness of introducing a new criminal offence which is not described in very clear terms (whoever read the definition of an unfair commercial practice in the Directive, and also the one in the Regulations, knows what I mean).

Something to think about - are we on the brink of a new stage in harmonizing European law?

I mean one which entails complete abandonment of the principle of procedural autonomy of the Member States. As the EU interest in civil justice grows, we might be seeing the beginning of the process of harmonization of European civil procedures. I am writing a paper about this, and here are some thoughts I am working on.

Obviously, the EU powers to harmonize civil procedure, leading to the creation of EU-level procedural rules, are still limited: even Article 81 of the Treaty on the Functioning of the European Union (which so far has been Article 65 EC Treaty) only allows harmonizing rules for cross-border purposes. But this does not mean the EU cannot intervene in national civil procedure rules. Here are a number of examples where this has been happening:

1. DG Freedom, Security and Justice has done quite a lot already (link here) - see for instance the Regulation on Small Claims Procedure, or the Legal Aid Directive - still only cross-border rules, but do they not induce convergence already?

2. The same DG just launched a Justice Forum - a network of ’stakeholders’ who will meet four times a year and discuss what can be done to enhance the performance of the European justice systems. The DG is also starting work on widening of the use of e-tools for civil and criminal justice purposes. Definitely an apetite for action here!

3. And one should not forget about other DGs successfully creating, or planning to create, EU-level procedural rules - just read the DG Competition White Paper on damages for breaches of antitrust rules (they mention things like discovery or burden of proof there!), or the DG Sanco agenda for establishing a collective redress mechanism. The best example, however, has so far been the Directive on Enforcement of Intellectual Property Rights - this one intervenes quite significantly into national procedural rules!

Now that access to justice is mentioned expressly in the Treaty (well, will be after Lisbon’s been ratified) - both in Article 81 I mentioned above, and in the Charter of Fundamental Rights (Art. 47) we can only see more of these developments!

Stay tuned…

The ECJ was quite busy in April. Here is the decision which I found most interesting:

Case 404/06 Quelle AG (Judgement of 18 April) - the case involved interpretation of Directive 1999/44/EC on certain aspects of sale of consumer goods. Facts: Miss Bruning bought an oven from Quelle, and some time later discovered that it had a defect. The defect apparently could not have been repaired, so she wanted the oven replaced. The warranty period has expired and Quelle demanded compensation for her use of the oven - ultimately the amount of 69.97 Euros was paid by Miss Bruning. A consumer organisation representing her in court claimed repayment of this sum, arguing that the law allowing for such compensation to be charged by traders was contrary to the Directive. The ECJ, somewhat surprisingly, agreed. This in spite of Recital 15 of the Directive which mentions that Member States can provide for such compensation for use! The ECJ’s point was that Recital 15 only applied to rescission of contracts, but I am not so sure of that!