Tag Archive: European Court of Justice


European Court of Justice Grants Asylum Rights to Persecuted Homosexuals

Countries that criminally prosecute homosexual behavior have received a ruling from the European Court of Justice that the European Union will protect individuals fleeing from those countries. A ruling concerning homosexual nationals from Sierra Leone, Uganda, and Senegal have reassured any individual fearful of prosecution because of his/her sexual orientation can seek asylum in the European Union.

The European Court of Justice’s ruling  explained that Directive 2004/83/ECwhich maintains the minimum standards for a person to be considered a refugee and references the Geneva Convention, applies to any homosexual who is persecuted in his/her country. The Directive states a refugee is a person 

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The Netherland’s Supreme Court requested  that the European Court of Justice give a preliminary ruling to clarify whether homosexuals were included in the definition of the phrase “membership of a particular social group.”  The Netherland’s Supreme Court also requested that the European Court of Justice clarify which type of appeal might fall within a receiving host government’s classification of a person as a refugee. 

 The Court’s ruling sets out that a person’s sexual orientation is a trait that is fundamental to the identity of an individual and no one should be required to renounce such an important part of himself/herself.  Explaining that since these criminal statutes target homosexual behavior this supports a finding that homosexuals form a separate group within the definition of a refugee from the Directive

The Court next explained that being a part of that group alone does not secure refugee status if the persecuting country has laws against homosexual behavior without a showing of a serious violation of a human right. Essentially warning potential applicants that not all violations of a right of a homosexual can reach the threshold to be granted asylum in the European Union. Specifically, the press release from the European Court of Justice states

the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of the directive. However, a term of imprisonment which accompanies a legislative provision which punishes homosexual acts may constitute an act of persecution per se.

This ruling clarifies the policy in the European Union for granting and denying asylum for any homosexual from his/her country while also ensuring that all of the Member States follow these basic standards.

 

EU Arctic Aspirations Stonewalled Again

For the second time, the Arctic Council has deferred an EU application to become an observer on the multilateral Arctic forum. The Arctic Council was formally established through the Ottawa Declaration in 1996. The impetus behind the Council’s inception was the need for an intergovernmental  forum in which Arctic states could cooperate in matters mutually beneficial for the region.

The European Commissioner for Maritime Affairs and Fisheries, Maria Damanaki, has argued that the EU “has a stake in what happened in the Arctic”, and “is an Arctic actor by virtue of its three Arctic states, Denmark, Finland, and Sweden.” The EU has not shied away from speaking about its Arctic interests. In June 2012, the Commission proposed a three point Arctic policy, the most salient of which is the sustainable development of resources.

It is undeniable that the EU has a stake in the future of Arctic development. It is estimated over 90% of Europe’s oil production and 60% of its gas production comes from offshore operations occurring in the North Sea and Norwegian Sea. Moreover, an estimated 13% of the world’s undiscovered oil reserves and 30% of its undiscovered gas reserves are lying within the Arctic seabed. Additionally, proponents of EU accession have argued that climate change is a trans-boundary issue, and thus, will adversely impact European weather patterns and fish stocks.

There have been two primary arguments against the EU attaining permanent observer status in the Arctic Council. First, the Heritage Foundation has repeatedly asserted that the EU is a “supernational” organization and, therefore, does not meet the criteria to join the Arctic Council as an observer. Second, the Canadian government has opposed EU observer status since the EU submitted its first application in 2009.

Canadian opposition began in May 2009 when the European Parliament voted 550-49 to impose a seal trade ban throughout the European Union. A Canadian Inuit group challenged the ban, but the General Court of the EU dismissed the appeal. Additionally, similar challenges have been brought before the European Court of Justice, but they also resulted in dismissal. Consequently, this lack of success in the European courts inspired a Nunavut-based group to begin the “No Seal, No Deal” petition calling on the Canadian government to reject the EU’s application for full observer status.

This second argument may carry more weight with the Arctic Council than the former. Following the announcement of the EU’s deferral, Leona Aglukkaq, the new Canadian chair of the Arctic Council, pointed out that one of the criteria that observers must meet is to demonstrate respect for the traditional ways of life of the indigenous people of the North.

The EU’s interests in the Arctic are not disappearing any time soon. Recently, Italy joined EU member states: France, Germany, the Netherlands, Poland, Spain, and the United Kingdom, as observers on the Arctic Council while Finland, Sweden, and Denmark all have permanent membership. Hopefully these EU Arctic actors will keep the EU’s best interest in mind until relations are able to thaw with Canada.

The United Kingdom Challenges the Cap On Banking Bonuses

Part of Basel III, the international regulatory framework for banks  that the EU is currently putting into effect, is being challenged by the United Kingdom (UK).  The UK has a problem with the part of Basel III that imposes a cap on the amount that a banker can earn as a bonus. 

The cap was designed to limit bonuses for bankers up to the amount of bankers salaries. The amount can be higher if the shareholders agree. The UK was the only Member State that opposed the plan during the discussions to implement this regulation.

The six reasons that the UK stated that it does not believe that the cap will not work are:

  1. “It is unfit for purpose, and was introduced without any impact assessment
  2. It unlawfully delegates to the European Banking Authority (EBA) because it concerns policy and is not simply a technical matter
  3. It is legally invalid because it contravenes the legal base of regulation that expressly excludes legislation ‘affecting the rights and interests of employed person’
  4. It is being rushed into effect without the necessary legislation in place including rules determining to whom the cap will apply
  5. It fails to protect personal data
  6. It wrongfully applies outside the European Economic Area”

The challenge was filed with the European Court of Justice on September 20th, 2013 by the Chancellor of Exchequer/Second Lord of Treasury for the United Kingdom. Chancellor George Osborne of Britain believes that this cap will increase the basic salaries of bankers and further reduce the ability to efficiently link performance with pay.

Commenting about the challenge to the regulation, the Chancellor stated that it was to “ensure the legislation respects the EU Treaty.” Cases usually take 18 months to two years to be heard so the UK has stated that it will adhere to the policy while the challenge is taken up.

Knut the Polar Bear Gets His Day in Court!

Has anyone heard of Knut the Polar Bear?  Well, the German icon recently had his day in court.  The European Union General Court in Luxembourg ruled this week in favor of the Berlin Zoo’s bid to get European trademark rights to the bear’s name.  The Berlin Zoo is in litigation with the United Kingdom’s company Knut IP Management over the names ‘Knut’ and ‘Knut der Eisbaer’.  The Berlin Zoo won a first round at European Union’s Community trademark office in March 2010.  Knut IP Management attempted to register “Knut – Der Eisbaer” (“Knut – The Polar Bear”) as a trademark for paper goods, clothing, shoes and sporting goods. EU Court cited a likelihood of confusion of similar goods sold by the UK company as reasoning for their ruling.  KNUT IP Management Ltd contends an infringement of Article 8(1)(b) of Regulation 207/2009, because the marks don’t invoke a likelihood of confusion.

The trademark is important to the Berlin Zoo because it still generates significant profits from Knut’s likeness. Knut the Polar Bear was not just any animal you would find at the zoo.  He was very special.  His website states:  “When Knut was born, he was no bigger than a snowball and unable to care for himself. His mother didn’t know how to take care of Knut and rejected him. Knut would have died if it weren’t for Thomas Dorflein, a zookeeper who nurtured Knut and gave him the love and attention he needed to thrive. The adorable little polar bear captured the world’s attention, and now Knut is loved around the globe.”  Knut was featured in Vanity Fair with Leonardo DiCaprio, and television shows documented him from his very beginning to his death at age four of encephalitis.  He also inspired a children’s candy.  Since his birth in 2006, Knut helped boost Berlin Zoo’s visits by 21 percent.  Bloomberg Businessweek hailed him the $140 Million Polar Bear.

The decision by the European Union General Court can be appealed to the European Court of Justice.

 

The EU Sovereign Debt Crisis: Some Legal Causes

A lot of attention surrounding the EU sovereign debt crisis has ostensibly focused on the allocation of blame to Member-States individually, often leaving out the EU institutions themselves. Responsibility for the current financial situation does in large part reside with the more indebted EU states such as Greece, Spain, Italy, and Ireland. However, there are additional causes that also deserve some of the attention.

The Treaty of the European Union (TEU) created the Eurozone and the European Central Bank (ECB). This final level of economic integration completed the three stage monetary and economic union that began in 1990. As the introduction of the Euro drew near, legitimate concerns were being raised by Member States regarding the economic stability of this new Eurozone. In response, the Stability and Growth Pact (SGP) was adopted in 1997. A specific resolution of the SGP, formally recognized as Council Regulation (EC) No 1467/97, implemented a targeted deficit reduction procedure for member-states that possessed excessive debt, imposing a deficit limit, an overall debt limit, and empowered the ECB to levy fines for non-compliance. However, the SGP has been inadequately enforced since its adoption. Such inadequate enforcement of the SGP may very well underlie the troubling economic situation the EU finds itself in today.

The most striking example of this questionable attitude toward the SGP came in November 2003, when the European Council (EC) chose not to implement recommendations of the European Commission (Commission) pursuant to the national budgets of two Member States. France and Germany’s national did not conform to SGP standards and the EC decided against enforcing SGP deficit reduction procedures previously agreed upon. This controversy eventually arrived at the European Court of Justice (ECJ). The Commission raised the issue that the EC’s failure to enforce the SGP’s debt re-structutring mechanisms against the Member States of Germany and France. Although the ECJ did rule against the EC for its refusal to pursue the SGP’s enforcement mechanisms, the checks and balances between EU institutions have been called into question and the authoritativeness of the SGP has been seriously undermined.

For example, the ECJ stated that the EC “cannot break free from rules laid down by Article 104 TEC and those for which it set forth for itself in Regulation No. 1467/97(SGP)”. Article 104 of the Treaty of the European Community (TEC) codifies the discretion of EC to assess a Member-State’s debt [104(6)], make recommendations on remedying that debt [104(7)], and the procedures for non-compliance [104(9)]. However, the SGP subsequently stipulated additional procedures to be implemented against a Member State in the case of non-compliant debt structure. The ECJ opinion alludes to an interesting question regarding the scope of the relationship between Art 104 TEC and the SGP. Understandably, however, they remind the parties that such a question “had not been presented”.

As Professor Larry Eaker of the American University of Paris has explained, this ECJ decision has potentially created a troubling conflict between the broad discretion afforded the EC in matters of economic and monetary policy, as expressed in Art. 104 TEC, and the monetary restrictions that were envisaged in the SGP. It would seem that the subsequent addendum of the SGP to the TEC would resolve this conflict just as a matter of chronology, but things are often never that simple.

The ECJ’s decision prompted subsequent legislation by the European Commission that intended to correct issues raised in the 2004 Commission v. Council case. But the conflict between the EU institutions and Member States is certain to continue, given the lack of resolution concerning the scope of the SGP.

 

EU Law that Protects Victims’ Rights

The European Union’s unexpected receipt of the Nobel Peace Prize (see also) has instigated discussion regarding the EU’s model of governance, which focuses on peace amongst the European nations as an ideal that Europeans must continually strive for, even in the face of iterative setbacks.  Given the enormous number of people and countries involved (twenty-seven countries consisting of 500 million people, and growing), achieving enduring peace across the European continent is no easy task. One key way that the European Union works towards peace amongst its vast diversity of peoples, however, is through its parliamentary and legal system, which requires harmonization of national Member State laws with the overarching laws of the European Union. An ultimate goal of the EU is to harmonize EU values within the national legal framework of Member States and thus increase the chance of stability and peace amongst the Member States by setting common baseline values throughout the continent.

On October 4, 2012, an example of such measures to harmonize national laws with EU law was presented when the European Council adopted by overwhelming majority an EU Directive (that passed with an overwhelming majority in the European Parliament) which addresses the rights of European citizens who fall victim to crime when they are travelling outside their home country. Given the ease and frequency of travel, transportation and general movement amongst the Member States, it is quite understandable that European travelers could easily and frequently fall victim to crime while outside their home country.  However, until the initiation of the victims’ rights law, European citizens who fell victim to crime while outside their home country could face discriminatory laws that would dis-allow them from obtaining the same relief that nationals could receive.

This was the issue in Cowan v. Tresor Public, a case decided by the European Court of Justice in 1989 that involved a British man who was robbed and injured in Paris and was subsequently denied compensation that the French government provided to victims of assault who were of French nationality.  The ECJ held that such compensation schemes discriminated based on nationality and should be accessible to all Europeans.  The framework laid out in this new EU Directive on victims’  rights requires minimum standards that member states must adopt that will ensure that European victims are protected in any of the twenty-seven member states where they may fall victim to crime.

Given that the EU has a mandate to ensure that EU citizens moving within its borders are protected, (TEU Title I, Article 3: “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”) this directive should ultimately result in Member State countries incorporating the minimum standards into their own national frameworks and have the effect of increasing the equal treatment of Europeans throughout the Union, which is a fundamental component of peace amongst diverse peoples.  In contrast to the contention that has ensued amongst some since the EU received the Nobel Peace Prize, the passage of this law provides one example of why the EU merited the prize.

 

What’s Beneath the Damp Rag?

Members of the European Union institutions have special privileges under Article 7 of the Protocol on the Privileges and Immunities of the European Union.

On September 5, 2012 the appeal to remove the fine levied against Nigel Farage was denied.  Two years ago a member of the European Union’s Parliament, Nigel Farage, proclaimed that the European Union Commission President and former Belgian prime minister Herman Van Rompuy came from “pretty much a non-country” and that the president had “the charisma of a damp rag and the appearance of a low-grade bank clerk”. Farage was fined 10 days pay, amounting to 2,980 Euros or $3,910. Farage’s appeal to the European Court of Justice was denied with prejudice due to prescription. Farage not only had to pay the fine, but he was also ordered to pay the legal fees for the European Parliament. The speech related to a far more important issue.  However, it was overshadowed by these remarks.

The European Union protects the freedom of expression under of the CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION Article 11.  Article 11 does not protect slander and defamation, which this insult would fall under.

There is however a special defense for members of the EU Parliament. After reading his arguments in Farage v. Parliament and Buzek, it is probable that the European Court of Justice would have found in favor of Farage had it not been for the calendrical victory by Van Rompuy.  Farage’s most influential argument was that of Article 7 of the Protocol on the Privileges and Immunities of the European Union, “as the speech of the applicant on 24 February 2010 was made in his capacity as a member of the European Parliament.” Unfortunately the case was thrown out due to prescription before the court would answer Farage’s petition.

This issue concerning the privilege powers has not been tested on the merits.  It appears that the merits might be tested because, according to the article, Farage stated, “I shall now weigh up my options of appeal,” and that there should be “freedom of speech of all elected members” and “not just for supporters of the EU’s political union.”  It shall be interesting to see whether or not the court takes this case.  The limits of Article 7, need to be determined through a test based on the merits.

 

 

 




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