Of browsers and britishness!

Hello readers!

The case I am blogging on is indeed curious. It concerns that mogul household brand we all know and love, Microsoft! As a europhile Brit I am the first to assert that certain things are considered the staples of British life- tea, The Royal Mail, bad weather!

Could we also add Internet Explorer to that list?

Whenever we boot up our internet we are always provided with Internet Explorer. We don’t question it. We just use it. However, the European Commission in it’s infinite wisdom (or overly exaggerated motherly concern- whichever way you look at it) has decided that we, as consumers, are entitled to more choice!

That means, when we load up our screens, we should be able to choose whether we use Internet Explorer or Opera, Bing, Google Chrome etc.

Now many of us would say: what is the problem? we were perfectly happy with Internet Explorer! Indeed the man on the Clapham omnibus would sagaciously assert ‘well mate, if it ain’t broke why fix it?’

Indeed it seems we Brits are change resistant!

I shall examine the ECJ’s ruling with interest. I am, however, reminded of a tirade by Margaret Thatcher who, in the House of Commons stood up and stated:

‘At a press conference the other day, the President of the Commission, Mr Delors, said he wanted the European Parliament to be the democratic body of the community. He wanted the Commission to be the executive and the Council of Ministers the senate. NO, NO NO!’ the Iron lady of Finchley roared across the chamber.

Now as much as I love Europe (or I would not be devoting time to writing this blog!) I cannot help think that she had a point. The Commission plays an undoubtedly useful role. But perhaps it is being overly concerned in this case?

Internet Explorer is as British as the weather and indeed as British as our Clapham homo sapiens who is as triumphant as the Iron Lady in stating: ‘well if it aint broke why fix it?’ albeit in a rather different manner!

I hope you have enjoyed this post!

TTFN!

Polish builders and freedom to provide services: Commission v Germany 546/07

When two worlds collide… ?

German insistence on monitoring the application of its temporary restrictions of Polish building contractors ‘collided’ with the ECJ’s insistence on monitoring freedom to provide services throughout the now enlarged EU. Result? Germany was told in the ECJ’s judgement of 21 January 2010 that its policy of not allowing foreign companies performing contracts in Germany to use Polish contractors breached freedom to provide services.

What was the problem exactly? Polish building contractors tend to be cheap, and Germany is struggling with unemployment. The German government does not allow for contracts using foreign workers to be performed in districts where unemployment is 30% above national average (those are officially listed, updated regularly). Restrictions on Polish workers are mentioned in the Agreement of 31 January 1990 between the Government of the Federal Republic of Germany and the Government of the Republic of Poland on the posting of workers from Polish undertakings to carry out works contracts. The application of the policy is monitored closely. Perhaps in the spirit of this need for close monitoring, Germany also required that companies from other Member States had to establish a subsidiary in Germany if they wished to use Polish contractors to perform contracts in Deutschland. In other words – foreign companies could not use Polish contractors to perform works in Germany. ECJ agreed with the Commission that this was a breach of Article 49 of the EC Treaty on free movement of services. It was not convinced that there was a sufficient enough danger to German public policy or security posed by the potential of foreign companies using Polish contractors.

Who came out victorious here? Poland or Polish builders? – I would not go that far. Companies based in other Member States? More like it. Free movement of services – for certain.

This is yet another, albeit modest, step towards a full integration of the new Member States into the European Union. A frighteningly slow process, but I am full of hope and anticipation…

Vasiliki Stylianou Vandorou- new reference to ECJ

Greetings! (more conventional- unfortunately I cannot say ‘hello’ in Greek).

I thought that it would be fun this week to write a note on mutual recognition of professional qualifications (if this is not edge of seat material I don’t know what is!). Given the crisis following our aegean neighbours they still have time to make this very important reference to the ECJ! Bravo!

In Vasiliki (a bit of a mouthful to say the whole lot!) a Greek court made a reference to the court essentially asking what experience could be taken into account when deciding the equivalence of a qualification awarded in the home member state with that required in the host member state.

As we know the mutual recognition of professional qualifications is governed by Directive 2005/36.

Under the directive there are three systems of recognition: general, automatic and specialist. There are five levels of qualifications under the general system:

1) An attestation of competence issued by a competent authority in the home member state on the basis of either a training course or a specific exam without prior training or general primary or secondary education.

2) A certificate attesting to successful completion of a secondary course

3) A diploma certifying successful completion of either training at post secondary level or in the case of a regulated profession, training with a special structure

4) A diploma certifying completion of post secondary education at a university or establishment of higher education for at least three years but not more than four years

5) A diploma certifying completion of post secondary education of at least four years, or of an equivalent duration on a part time basis at a university or establishment of higher education

Now that’s out of the way- Vasiliki essentially deals with the third criterion. The Greek court wanted to know what professional experience could be taken into account with regards to a regulated profession.

Here is the exciting part- drum roll please! If an applicant is not covered by the directive then there is an obligation to compare the qualification with the qualification required in the host member state. If there is an equivalence then the host member state must recognise the qualification. If there is not, then the host state must consider practical knowledge or training- which is precisely what our Greek brethren want to know! what amounts to practical knowledge or training? Does experience- among other things- pursuant to acquiring the diploma count?

This case shows two things.

1) Considering all this polava one should not stray too far beyond the border when one graduates!

2) Mr Papandreou- despite your troubles- Greece is still a wonderful innovator of EU law!

Watch this space for the ECJ’s judgment (bound to be exciting!)

Until next time!

Kucukdeveci – ECJ and age discrimination – expanding direct effect of directives to horizontal relations

Let me first quote the brilliant ‘Adjudicating Europe’ blog:

“The Court can be criticized (and it should very well be), but nobody can accuse it of being an irrelevant institution in the construction of a European Union. Read in that light, I say: Long live Kücükdeveci. And long live (very long, please) the European Court of Justice.”

Kucukdeveci is an important judgement, and it already caused a true avalanche of blog comments from various sources (see the very comprehensive review of the judgement and all comments on Julien Frisch’s blog).

The ECJ is developing its jurisprudence in the area of age discrimination; jurisprudence which is largely based on Articles 12 and 13 of the EC Treaty, and Directive 2000/78/EC on equal treatment in employment and occupation. Following cases such as Birgit Bartsch v Bosch, Palacios de la Villa, Age Concern England, or Mangold, it now dealt very firmly with discrimination because of ‘young age’ – at the same time breaking more than just one ‘barrier’ - some of them inherent in the very effects of EU law.

 Age discrimination can appear in different shapes and sizes. It is not always about ’ageism’ – which one would normally associate with discriminating people because of their ‘too old’ rather than ‘too young’ age. The German law with which Ms Kucukdeveci had a problem was blatantly refusing to allow people who worked before they reached the age of 25 to calculate this period of employment as part of the period which was the basis for calculating their notice period for dismissal. Ms Kucukdeveci worked for 10 years for her employer (since she was 18), but when she was dismissed she received notice the length of which corresponded to her working only for 3 years. 

While it is clear that the Equal Treatment Directive does allow Member States to establish certain limitations on equality because of age: for instance those relating to minimum hiring age or minimum experience allowed, the German law went slightly too far, as rightly confirmed by the ECJ.

The ECJ condemned the German law as being against the equality principle, and it also confirmed the principle of supremacy of EU law and its implications: the court considering the case was told to set aside the German law and apply the Directive instead. The problem was: the Directive was to be applied between two non-state entities (one individual, one firm) – so in a horizontal relationship!

Kucukvedeci is about so much more than age disrimination. It is also about the effect of directives containing fundamental principles of EU law (here – the concept of non-discrimination on the basis of age, also established by the Charter of Fundamental Rights which by the way the ECJ enforced retrospectively!). As we know, directives do not have horizontal direct effects. Or do they now? Here we are dealing with a Directive establishing a Fundamenal Principle of EU law, and this one WAS HELD TO BE DIRECTLY EFFECTIVE IN A HORIZONTAL SITUATION!

The implications of this judgement in a wider context are bound to be significant. There are, after all, many more Directives which establish Fundamental Rights (the one I can think off right now, as I just finished teaching it, is the Directive 2004/38 on freedom of movement of persons). ‘Adjudicating Europe’ mentioned the Data Protection Directive. Surely there are many more.

Sea-change if there ever was one!

Transportes Urbanos- new case on state liability

Ola! Here it is- Transportes Urbanos! As we all know (or those of us sad enough to call ourselves lawyers should know!) the principle of state liability arose in Mama Mia!- not the film- but Francovich & Bonifaci v Italian state. The case concerned workers who claimed receipt of their wages following the liquidation of their employers. The ECJ held that a member state could be liable to make reparations in respect of any losses incurred by an individual for a member state’s breach of EU law.

This was extended in the case of Brasserie du Pecheur. Whenever we think of a Brasserie a quaint little vignette of a cafe that serves coffee and croissants springs to mind! (or at least it does in mine). You might then be suprised to learn that this case concerned the purity of Beer. However, it is the test that is important. The act:

1) Must intend to confer rights on individuals

2) The breach must be sufficiently serious (manifest and grave disregard by a member state of the limits of their discretion)

3) There must be a causal link between the breach and the loss

But how does this apply to Transportes! This case concerned a dispute between Transportes and the  Spanish Administration relating to spanish tax law. Under spanish law, law 37/1992 provides limits for the calculation of VAT which must be recorded in a self assessment. However, law 58/2003 states that a person has the right to request that his self assessment be rectified and any overpayments refunded. This is subject to a four year limitation period.

In this case Transportes had filed self assessments for the tax years 1999 and 2000 in accordance with law 37/1992 but had not taken advantage of law 58/2003. They then tried to claim overpaid tax back from the spanish authorities!

If you’re still awake (I’m the first to realise that spanish tax law isn’t the most stimulating topic) now comes the exciting part! Transportes claimed that law 37/1992 was incompatible with Sixth Council Directive 77/388/EEC of 17 May 1977.

The Spanish Administration (reluctant to cough up- the tight fisted rascals!) stated that Transportes had to exhaust all other remedies first. They also stated that the action was time barred. This meant that as Transportes had not submitted a claim for rectification during the four year period (see above) any attempt to claim there was a direct causal link between the breach and the loss was nonsense!

The ECJ held that it would provide the spanish court with guidance on the principles of effectiveness and equivalence, so as to enable it to assess whether, under EU law, it was permitted to disapply national rules regarding state liability.

The ECJ held that EU law precludes a member state from applying a rule which states that the applicant must exhaust all other remedies before having recourse to state liability.

This meant that Transportes could get their money back! Hooray!

I hope you have enjoyed this post. Adios!

Two new ECJ judgements – Transportes Urbanos and Kucukdeveci

Happy Monday! Within the past few weeks, the ECJ made two interesting judgements:

Transportes Urbanos concerned state liability – Spanish rules which resticted access to damages for state liability were under scrutiny.

Kucukdeveci – discrimination on grounds of age – fascinating topic for us all…

Stay tuned for detailed analyses coming this week!

Some news from ECJ

On 7 October Vassilios Skouris was re-elected as President of the ECJ until October 2012. On the same day, the Judges of the Court elected the Presidents of all the eight Chambers of the Court. On 9 October Advocate General Paolo Mengozzi was appointed to the post of First Advocate General of the Court.For some recent judgements: including Glaxo parallel imports case, some Advocate General’s opinions in English cases concerning the right of children (and their non-EU parents) to remain in the EU; the opinion of the Advocate General in a Spanish case concerning Unfair Contract Terms (Caja de Ahorros y Monte de Piedad de Madrid v Asociacion de Usuarious de Servicios Bancarios).

 

Key links

Hello, check the EU Law Teaching Materials for the links to the most important EU documents.

Welcome, EU law students!

Hello, I have just become a Lecturer in EU law at the University of Westminster. So I added another page to this blog which includes some materials which I will be using. All those who are interested in getting access to these – just click on EU teaching materials! Good luck with the course everyone.

Consumer’s right to withdraw and compensation for use – Pia Messner

Now we have the ECJ judgement in the case concerning the right to withdraw from contracts concluded at a distance. Directive 97/7 on the protection of consumers in respect of distance contracts (Distance Sales Directive) introduces the right to withdraw from a contract concluded at a distance within a specified time limit (Member States implemented this in various ways – from 7 days to 14 days). In fact, this period does not start running until the consumer is told about the right to withdraw. In Pia Messner (Case 489/07), the consumer bought a laptop at a distance and was not told about her right to withdraw. Thus, 8 months after the purchase the period still did not start running. She used the laptop for 8 months, then tried to withdraw from the contract.

Now the question was – is the law obliging her to compensate the seller for the fair use of the product if she withdrew from the contract after having used it compliant with the Directive? The ECJ held – NO. General obligations to compensate for use are not in compliance with the Distance Sales Directive. On the other hand, the consumer may in certain circumstances be required to compensate the seller (such as – if the product was used contrary to the good faith requirement etc.).