Case C-173/07, Schenkel

>> Journey out and back not a single flight

Mr Schenkel booked in Germany, with Emirates, an outward and return journey from Düsseldorf to Manila via Dubai . His return flight from Manila was cancelled because of technical problems. Mr Schenkel eventually departed from two days later and arrived at Düsseldorf on the same day. He brought an action against Emirates, claiming compensation of EUR 600 in reliance on Arts 5(1)(c) and 7(1)(c) of Regulation 261/2004. Emirates submitted that the outward and return flights were to be regarded as two separate flights. The referring court asked whether Art. 3(1)(a) of Regulation 261/2004 was to be interpreted as applying to the case of an outward and return journey in which passengers who had originally departed from an airport located in the territory of a Member State to which the Treaty applied travelled back to that airport on a flight departing from an airport located in a non-member country.

The Court of Justice held that the term “flight” was not among those defined in Regulation 261/2004. The term must therefore be interpreted in the light of the provisions of Regulation 261/2004 as a whole and the objectives of that regulation.

To interpret Art. 3(1)(a) of Regulation 261/2004 in such a way that a flight included an outward and return journey would amount to depriving passengers of their rights in a situation in which the flight departing from an airport located in the territory of a Member State was not operated by a Community carrier. The principle of equal treatment or non-discrimination required that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment was objectively justified.

However, the Court found that a journey out and back could not be regarded as a single flight.
The Court found that to regard a “flight” within the meaning of Art. 3(1)(a) of Regulation 261/2004 as an outward and return journey would in fact have the effect of reducing the protection to be given to passengers under the regulation, which would be contrary to its objective of ensuring a high level of protection for passengers. The Court held that the concept of “flight” within the meaning of Regulation 261/2004 must be interpreted as consisting essentially in an air transport operation, being as it were a “unit” of such transport, performed by an air carrier which fixed its itinerary.

The fact that the outward and return flights were the subject of a single booking had no effect on that conclusion. Consequently, Art. 3(1)(a) of Regulation 261/2004 could not apply to the case of an outward and return journey such as that at issue in the main proceedings.

Text of Judgement

Case C-33/07, Jipa

>> Repatriation restricting EU citizen’s right of free movement only when genuine, present and sufficiently serious threat to fundamental interest of society.

Mr Jipa left Romania to travel to Belgium. On account of his “illegal residence” in Belgium, he was repatriated to Romania under the terms of an Agreement between Belgium, Luxembourg and the Netherlands, on the one hand, and Romania, on the other, on the readmission of persons who were in an illegal situation. The Romanian Minister for Administration and Home Affairs
applied to the referring court for a measure prohibiting Mr Jipa from travelling to Belgium for a period of up to three years, in accordance with a Romanian Law on the conditions for the free movement of Romanian citizens abroad. The referring court asked whether Art. 18 EC and Art. 27 of Directive 2004/38 precluded national legislation that allowed the right of a national of a Member State to travel to another Member State to be restricted, in particular on the ground that he had previously been repatriated from the latter Member State on account of his “illegal residence” there.

The Court of Justice held that, as a Romanian national, Mr Jipa enjoyed the status of a citizen of the Union under Art. 17(1) EC and might therefore rely on the rights pertaining to that status, including against his Member State of origin, and in particular the right conferred by Art. 18 EC to move and reside freely within the territory of the Member States. The Court held that the right of freedom of movement included both the right for citizens of the European Union to enter a Member State other than the one of origin and the right to leave the State of origin.

However, the right of free movement of Union citizens was not unconditional but might be subject to the limitations and conditions imposed by the Treaty and by the measures adopted to give it effect. As far as the main proceedings were concerned, those limitations and conditions derived in particular from Art. 27(1) of Directive 2004/38, which provided that Member States might restrict the freedom of movement of Union citizens and their family members on grounds inter alia of public policy or public security.

The Court held that while Member States essentially retained the freedom to determine the requirements of public policy and public security in accordance with their national needs, in the Community context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly. Their scope could not be determined unilaterally by each Member State without any control by the Community institutions.

The Court stated that a measure limiting the exercise of the right of free movement could not be based exclusively on reasons advanced by another Member State to justify a decision to remove a Community national from the territory of the latter State, as in the main proceedings.

The fact that a citizen of the Union had been subject to a measure repatriating him from the territory of another Member State, where he was residing illegally, might be taken into account by his Member State of origin for the purpose of restricting that citizen’s right of free movement only to the extent that his personal conduct constituted a genuine, present and sufficiently serious threat to one of the fundamental interests of society. According to the Court, the situation in the present case did not however seem to meet these requirements.

The Court held that it was nevertheless for the national court to make the necessary findings in this respect, on the basis of the matters of fact and of law justifying, in the main proceedings, the request of the Minister for a restriction on Mr Jipa’s right to leave Romania.

Text of Judgement

Joined Cases C-39 and 52/05 P, Sweden and Turco

>> Regulation 1049/2001 imposing obligation to disclose opinions of the Council’s legal service relating to a legislative process.

In this case, Mr Turco had submitted a request to the Council for access to the documents appearing on the agenda of a JHA Council meeting, including an opinion of the Council’s legal service on a proposal for a Council Directive laying down minimum standards for the reception of applicants for asylum in Member States. The Council refused access to that opinion on the basis of Art. 4(2) of Regulation 1049/200. Mr Turco made a confirmatory application to the Council asking it to reconsider its position. In the contested decision, the Council agreed to disclose the introductory paragraph of that opinion, but it refused to reconsider its position as to the remainder. In essence, it justified its confirmation of refusal of access on the ground, first, that the advice of its legal service deserved particular protection, because it was an important instrument which enabled the Council to be sure of the compatibility of its acts with Community law and to move forward the discussion of the legal aspects at issue. Secondly, disclosure of the legal service’s opinions could create uncertainty regarding the legality of legislative acts adopted further to those opinions and, therefore, jeopardise the legal certainty and stability of the Community legal order.

The Court of Justice reiterated that when the Council was asked to disclose a document, it must assess, in each individual case, whether that document fell within the exceptions to the right of public access to documents of the institutions set out in Art. 4 of Regulation 1049/2001. In view of the objectives pursued by Regulation 1049/2001, those exceptions must be interpreted and applied strictly. (Case C-64/05 P Sweden v Commission and Others [2007])

The Court of Justice held that examination to be undertaken by the Council when it was asked to disclose a document must necessarily be carried out in three stages, corresponding to the three criteria in 4(2) of Regulation 1049/2001. The exception relating to legal advice laid down in the second indent of Art. 4(2) of Regulation 1049/2001 must be construed as aiming to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The risk of that interest being undermined must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical.

However, it was for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, from increased openness, in that this enabled citizens to participate more closely in the decision-making process and guaranteed that the administration enjoyed greater legitimacy and was more effective and more accountable to the citizen in a democratic system. It was incumbent on the Council to establish in each case whether the general considerations normally applicable to a particular type of document were in fact applicable to a specific document which it had been asked to disclose. These considerations were of particular relevance where the Council was acting in its legislative capacity. The Court of Justice stated that openness in that respect contributed to strengthening democracy by allowing citizens to scrutinize all the information which had formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action was a precondition for the effective exercise of their democratic rights.

The Court of Justice held that to submit, in a general and abstract way, that there was a risk that disclosure of legal advice relating to legislative processes might give rise to doubts regarding the lawfulness of legislative acts did not suffice to establish that the protection of legal advice would be undermined for the purposes of the second indent of Art. 4(2) of Regulation 1049/2001 and could not, accordingly, provide a basis for a refusal to disclose such advice. Furthermore, the Court of Justice found that there appeared to be no real risk that was reasonably foreseeable and not purely hypothetical that disclosure of opinions of the Council’s legal service issued in the course of legislative procedures might undermine the protection of legal advice within the meaning of the second indent of Art. 4(2) of Regulation 1049/2001. It followed that Regulation 1049/2001 imposed, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process.

Text of Judgement

C-195/08 PPU, Rinau

Today was the hearing of the first case using the new urgent preliminary ruling procedure in the area of FSJ. The case was lodged only five weeks ago.

Today, the first case (C-195/08 PPU) was heard in which the new urgent preliminary ruling procedure in the area of freedom, security and justice is being used (hence the suffix). This procedure was introduced by Council Decision 2008/79 (pdf) of December 20, 2007, which, as is well known, ended a long discussion on whether such procedure should be introduced.

The Brussels European Council of 4-5 November 2004 decided that “thought should be given to creating a solution for the speedy and appropriate handling of requests for preliminary rulings concerning the area of freedom, security and justice, where appropriate, by amending the Statutes of the Court”. This finally resulted in amendments to the Rules of Procedure (pdf) of the Court of Justice, inter alia introducing a new Article 104b (see this link (pdf) for the text of the amendments). The new urgent procedure is applicable as from March 1, 2008 (see this press release of the Court of Justice (pdf)).

Of course, as is well known, Article 104a already provides for an urgent preliminary ruling procedure, but as Lenaerts has pointed out last December in the Common Market Law Review: “ this accelerated procedure has been considered inadequate for the present purposes because, among other things, it has not been found to cut down sufficiently the duration of the proceedings and its acceleration is achieved at the expense of all the other cases pending before the Court, thereby explaining why it has been used by the Court only on a very exceptional basis” (link, pp 1654-1656 (access kluwerlawonline required, pdf)).

The lenght of the preliminary ruling procedure is of course a returning point of criticism and concern. The Lisbon Treaty will add to Article 234 EC that when a preliminary question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act "with the minimum of delay". (new Art. 267(4) TFEU)

Update July 12: judgment was delivered yesterday: link

ECJBlog on mobile phone

Having received a number of requests of readers asking for a mobile version of this weblog, I just created: http://ecjblog.mofuse.mobi/. If you are using an iPhone, go to http://ecjblog.mofuse.mobi/iphone

Case C-458/06, Gourmet Classic

>> Court has jurisdiction in Art. 234 cases even if all parties agree on interpretation of Community law provision.

The Gourmet Classic case, which was delivered this morning, prima facie seemed just an ordinary Art. 234 EC case. The Regeringsrätten (The Swedish Supreme Administrative Court) asked the Court whether the alcohol in cooking wine must be regarded as ethyl alcohol within the meaning of Art. 20 of Directive 92/83. However, as AG Bot pointed out in his Opinion to this case: “a particular feature of this case is that in the main proceedings all parties agree that the alcohol contained in cooking wine must be regarded as ethyl alcohol within the meaning of that provision.”

The Court of Justice therefore was faced with the question whether a dispute actually existed and hence had jurisdiction to give a ruling on the question referred.

The AG found that the Court lacked jurisdiction to give a ruling in this case, arguing that “to accept that the Court has jurisdiction in a case such as that before me is to distort the objective pursued by Art. 234 EC and disregard the conditions for bringing an action before the Court under that Article to the effect that there must be of a dispute and that the question referred for a preliminary ruling must be justified by the need to resolve a genuine controversy.”

Nevertheless, the Court found that it did have jurisdiction. It held that Article 234 EC aimed to avoid divergences in the interpretation of Community law which the national courts had to apply and aimed to ensure that, in all circumstances, that law had the same effect in all Member States (see Case 166/73 Rheinmühlen-Düsseldorf [1974]
). The Court reiterated that the procedure provided for in Art. 234 EC was an instrument of cooperation between the Court of Justice and the national courts. In the context of that cooperation, it was for the national court or tribunal, which alone had direct knowledge of the facts of the main proceedings and which must assume responsibility for the subsequent judicial decision, to assess, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submitted to the Court. Where questions submitted by national courts concerned the interpretation of a provision of Community law, the Court of Justice was, in principle, obliged to give a ruling (see inter alia Joined cases C-297/88 and C-197/89 Dzodzi [1990], Case C-83/91 Meilicke [1992] and Case C-412/93 Leclerc-Siplec [1995]).

The Court admitted that while “the spirit of cooperation” which must prevail in the exercise of the functions assigned by Art. 234 EC to the national courts, on the one hand, and the Community judicature, on the other, required the Court of Justice to have regard to the particular responsibilities of the national court, it implied at the same time that the national court, in the use which it made of the possibilities offered by that Article, must have regard to the particular function entrusted to the Court of Justice in this field, which was to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.



The Court pointed out that the purpose of the procedure before the Regeringsrätten was to review the legality of an opinion which, once it became definitive, bound the tax authorities and served as the basis for the assessment to tax if and to the extent to which the person who applied for the opinion continued with the action envisaged in his application. In those circumstances, the Regeringsrätten must be held to be carrying out a judicial function. The fact that all parties confirmed the preliminary opinion of the Skatterättsnämnden did not affect the judicial nature of the main proceedings.

The Court of Justice argued that Regeringsrätten asked the Court of Justice a question concerning the interpretation of a provision of Community law, namely the first indent of Art. 20 of Directive 92/83, and it considered that a preliminary ruling on that point was necessary in order to review the legality of the preliminary opinion of the Skatterättsnämnden. The Court was therefore not being asked to deliver an advisory opinion on a hypothetical question.

Moreover, since there was no judicial remedy under national law against the decisions of the Regeringsrätten, that court was obliged, under Art. 234(3) EC, to bring the matter before the Court of Justice. Consequently, it was only by referring a question to the Court for a preliminary ruling that the objective pursued by that provision could be attained, that was to ensure the proper application and uniform interpretation of Community law in all the Member States and to prevent a body of national case-law that was not in accordance with the rules of Community law from coming into existence in the Member State concerned.

The Court thus found that it had jurisdiction to reply to the question posed by the Regeringsrätten. In short, it concluded that the alcohol contained in cooking wine was, if it had an alcoholic strength exceeding 1.2% by volume, to be classified as ethyl alcohol as referred to in the first indent of Art. 20 of Council Directive 92/83.

Text of Judgment

Preliminary references

Already some time ago, Rene Barents, who has been Head of Research and Documentation for the ECJ since 2000, sent me this document (table of contents, both pdf)) on preliminary references under Art. 234 EC. An interesting read, highly recommended. Apologies to all ECJBlog readers for not posting it any sooner.

Case C-308/06, Intertanko

>> Not possible to rely on Marpol 73/78 or UNCLOS

The European Community acceded to the United Nations Convention on the Law of the Sea (“UNCLOS”) in 1998. The Community has not (yet) acceded to the Marpol 73/78 agreement which established rules to combat pollution of the marine environment. The Community has, however, adopted Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements. The claimants in this case, a group of organisations within the maritime shipping industry representing substantial proportions of that industry, argued that Articles 4 and 5 of this Directive, which laid down criminal liability for discharge violations, were incompatible with UNCLOS and Marpol 73/78. They argued in particular that by laying down that liability was to be incurred for serious negligence, since, under the directive, serious negligence was sufficient, whereas Marpol 73/78 provided for at least recklessness and knowledge that damage would probably result. Claimants also argued that the standard of liability of serious negligence was incompatible with the principle of legal certainty.

The Court of Justice disagreed. It pointed out that Art. 300(7) EC stated that agreements concluded by the Community had primacy over secondary Community legislation. (see Case C-61/94 Commission v Germany [1996] and Case C-311/04 Algemene Scheeps Agentuur Dordrecht [2006]).

It followed that where the invalidity of secondary Community legislation was pleaded before a national court, the Court of Justice reviewed, pursuant to Art. 234 EC, the validity of the Community measure concerned in the light of all the rules of international law, subject to two conditions. First, the Community must be bound by those rules. Second, the Court could examine the validity of Community legislation in the light of an international treaty only where the nature and the broad logic of the latter did not preclude this and, in addition, the treaty’s provisions appeared, as regards their content, to be unconditional and sufficiently precise.

The Community had not assumed, under the EC Treaty, the powers previously exercised by the Member States in the field to which Marpol 73/78 applied, nor that, consequently, its provisions had the effect of binding the Community. Although all the Member States of the Community were parties to Marpol 73/78, in the absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter could not, simply because all those States were parties to Marpol 73/78, be bound by the rules set out therein, which it had not itself approved.

The Court argued that the fact that all Member States were parties to Marpol 73/78 was, however, liable to have consequences for the interpretation of, first, UNCLOS and, second, the provisions of secondary law which fell within the field of application of Marpol 73/78. However, UNCLOS did not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State. The Court argued that the nature and the broad logic of UNCLOS prevented the Court from being able to assess the validity of a Community measure in the light of that Convention. Consequently, the validity of Directive 2005/35 could not be assessed either in the light of Marpol 73/78 or in the light of UNCLOS.

Reiterating its judgment in Advocaten voor de Wereld (see this post), the Court furthermore held that in obliging the Member States to regard certain conduct as infringements and to punish it, Art. 4 of Directive 2005/35, read in conjunction with Art. 8 thereof, must also observe the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege), which was one of the general legal principles underlying the constitutional traditions common to the Member States and was a specific expression of the general principle of legal certainty.

The Court held that the principle of the legality of criminal offences and penalties implied that Community rules must define clearly offences and the penalties which they attracted. This requirement was satisfied where the individual could know from the wording of the relevant provision and, if needed be, with the assistance of the courts’ interpretation of it, what acts and omissions would make him criminally liable.

The Court concluded that Art. 4 of Directive 2005/35, read in conjunction with Art. 8 thereof, did not infringe the general principle of legal certainty in so far as it required the Member States to punish ship-source discharges of polluting substances committed by “serious negligence’, without defining that concept. Examination had revealed nothing capable of affecting the validity of Art. 4 of Directive 2005/35 in the light of the general principle of legal certainty.

Text of judgment

See Intertanko's website for an official statement on the ruling.

Case C-499/06, Nerkowska

>> Residence requirement for disability pension granted to civilian victims of war or repression infringing Art. 18 EC

Ms Nerkowska , who had Polish nationality, was born on in 1946 in the territory of present-day Belarus. In 1951, Ms Nerkowska was deported to the former USSR. She lived there under difficult conditions until January 1957, when she returned to Poland. In 1985, she left Poland and settled permanently in Germany. In October 2000, Ms Nerkowska submitted an application to obtain a disability pension for the damage her health had suffered while she was a deportee. The competent authority decided that she was entitled to a pension as a result of partial incapacity for work linked to her stay in places of isolation, but payment of this benefit was suspended on the ground that she did not reside in Polish territory. After the accession of Poland, Ms Nerkowska submitted a fresh application for payment. The competent authority refused to pay, on the ground that she did not have a place of residence in the territory of Poland. Ms Nerkowska appealed. The national court asked whether Art. 18(1) EC was to be interpreted as precluding legislation of a Member State under which it refused to pay one of its nationals a benefit granted to civilian victims of war or repression although it had been acknowledged by a decision of the competent authority that that national was entitled to such a benefit, on the sole ground that the national was habitually resident in the territory of another Member State and not in that of the Member State in question.

Reiterating its Tas-Hagen and Tas judgment of two years ago, the Court held that under Art. 17(1) EC, every person holding the nationality of a Member State was a citizen of the Union. In addition, Art. 17(2) EC attributed to citizens of the Union the rights conferred and duties imposed by the EC Treaty, including those mentioned in Art. 18(1) EC. As a Polish national, Ms Nerkowska enjoyed the status of citizen of the Union established by Art. 17(1) EC and might therefore rely where relevant on the rights conferred on those having that status, such as the rights to move freely and to reside freely laid down in Art. 18(1) EC. As Community law now stood, a benefit which was intended to compensate civilian victims of war or repression for physical or mental harm which they had suffered, fell within the competence of the Member States. However, Member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions concerning the freedom accorded to every citizen of the Union to move and reside freely within the territory of the Member States. (Case C-192/05 Tas-Hagen et Tas [2006]).

The Court furthermore held that Citizenship of the Union was not intended to extend the scope ratione materiae of the Treaty to internal situations which had no link with Community law. However, situations which fell within the scope ratione materiae of Community law included those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the freedom, as conferred by Art. 18 EC, to move and reside within the territory of the Member States. (See Joined Cases C-64/96 and C‑65/96 Uecker and Jacquet [1997] and Case C-148/02 Garcia Avello [2003]).

The Court held that a situation in which the exercise by Ms Nerkowska of a freedom accorded by Community law had an impact on her right to the payment of a benefit under national legislation could not be considered to be a purely internal matter with no link to Community law. It furthermore argued that national legislation which placed certain of the nationals of the Member State concerned at a disadvantage simply because they had exercised their freedom to move and to reside in another Member State was a restriction on the freedoms conferred by Art. 18(1) EC on every citizen of the Union.

Such restriction could be justified, under Community law, only if it was based on objective considerations of public interest independent of the nationality of the persons concerned and was proportionate to the legitimate objective of the national provisions. Although both the wish to ensure that there was a connection between the society of the Member State concerned and the recipient of a benefit and the necessity to verify that the recipient continued to satisfy the conditions for the grant of that benefit constituted objective considerations of public interest which were capable of justifying the fact that the conditions for the grant or payment of the benefit might affect the freedom of movement of the citizens of that Member State.

Nevertheles, while the restriction found was capable of being justified by objective considerations of public interest, that restriction must also not be disproportionate in the light of the objective pursued. A residence condition such as that at issue in the main proceedings went beyond what was necessary to achieve the objective of verifying that the recipient of a benefit continued to satisfy the conditions for grant of the benefit and, therefore, it failed to comply with the principle of proportionality. The requirement of residence throughout the period of payment of the benefit concerned went beyond what was necessary to ensure that such a connection existed.

Text of judgment

Voting for US president as EU citizen

If you are a EU citizen who wants to vote for the next President of the United States, you might want to check out this site. A French version is also available.