Monthly Archives: August 2013

EU WTO action against Russian vehicle recycling fee

gavc law - geert van calster

The first ever (ok, the second: however the polyethelyne case was settled before a report) WTO case concerned the environment (US Gasoline). The first ever EU action against Russia as a Member of the WTO also concerns the environment: the EU early July kick-started dispute settlement proceedings against Russia, protesting against the fee which Russia plans to introduce on the import of cars. The EU’s complaint has in the meantime been joined by Japan, with the US reported to be following suit.

The allegations are that the fee is discriminatory, not just vis-a-vis Russian production, but also among imports (Kazakhstan and Belarus are exempt); and that the alleged environmental aims are in reality disguised protectionism.

The complaint supplements the ever-growing list of trade and environment /public health cases at the WTO. These are exciting times for those of us keeping a keen eye on that area! (and trying to…

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A European Kiobel? The Court of Appeal at Versailles in AFPS and PLO v Alstom

gavc law - geert van calster

Elise Maes reported earlier in June on the judgment of the Court of Appeal at Versailles in AFPS and PLO v Alstom. Ms Maes flags a number of interesting issues which I shall not repeat here for readers can review Elise’s paper for themselves. In particular, the comparison between the USSC ruling in Kiobel, and the current ruling by the Versailles Court of Appeal.

The judgment provides plenty of issues to ponder for comparative contract law; international law; private law; and private international law.  To Elise’s reasoning, I would like to add:

– the complex distinction between French (and perhaps continental) law and the common law on ‘objective’ v ‘subjective’ interpretation of contracts. I am not au fait with the finer details however they seem to have made an impact in the judgment at issue (see in particular p.19 ff.)

– the relevance of the lex fori in…

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The ‘compact’ – A new phase in international regulatory co-operation or a way around GSP+ accusations?

gavc law - geert van calster

In response to the tragedy at the Rana Plaza factory, the EU, Bangladesh and the International Labour Organisation together launched the ‘Global Sustainability Compact’ early July. The full title of the Initiative is the “Compact for Continuous Improvements in Labour Rights and Factory Safety in the Ready-Made Garment and Knitwear Industry in Bangladesh”. According to the official EU statement upon release of the initiative, key considerations are:

  • Reforming the Bangladesh Labour Law to strengthen workers’ rights, in particular regarding freedom of association and the right to collective bargaining, and to improve occupational health and safety. A new Labour Law should be in place by the end of 2013. The ILO will monitor the effective enforcement of the new legislation.
  • Recruiting 200 additional inspectors by the end of 2013, as part of the efforts to ensure regular visits to factories and assess them in terms of working conditions, including occupational safety…

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Declassification of sites under the Habitats Directive – Kokott AG resorts to Nemo Auditur in Cascina Tre Pini

gavc law - geert van calster

In Cascina Tre Pini, Case C-301/12, Kokott AG opined on 20 June last. The case concerns the possibility of declassification of a site as a special area of conservation, and the rights of owners of the site concerned in same. Classification as a special area of conservation evidently brings with it a variety of restrictions on the use of the land. Owners’ interest in declassification therefore may understandably be very high.

The fourth sentence of Article 4(1) of the Habitats Directive provides that ‘Where appropriate, Member States shall propose adaptation of the list in the light of the results of the surveillance referred to in Article 11.’ Article 9 of the Habitats Directive refers to the possibility of withdrawing the protected status of certain areas: ‘The Commission, acting in accordance with the procedure laid down in Article 21, shall periodically review the contribution of Natura 2000 towards achievement…

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Pinckney: Jääskinen AG suggests ‘focus and target’ as criterion for jurisdiction

gavc law - geert van calster

I reported  just short of a year ago on the reference in Pinckney, Case C-170/12. The Advocate General opined on 13 June.  Jääskinen AG first of all suggests the questions are inadmissible – let’s hope the ECJ will not agree for this will cut short the remainder of the discussion.

Pinckney, a resident of Toulouse (France), is the alleged author, composer and performer of 12 songs which were recorded on vinyl in the 1970s. The works have been copied in Austria, unto CD by Mediatech, registered in Austria. No permission was requested from Pinckney.  Two UK-registered companies subsequently marketed the CDs from a variety of websites, which were accessible from Toulouse.

The AG distinguishes between two different infringements – both with ample reference to previous case-law:

Firstly, for reproduction rights, he suggests the locus damni is the same as the locus delicti commissi: for there is no third party involved…

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Burridge v Breckland at the Court of Appeal: of salamis and EIA

gavc law - geert van calster

In Burridge v Breckland, the Court of Appeal (permission to appeal with the Supreme Court is under consideration) had to consider the all too familiar issue of ‘salami’ projects: developments which singularly do not meet the thresholds to require an EIA but which do when joined together. Splitting needs to be considered carefully, for it may disguise an attempt to circumvent EIA requirements. On the continent, it is referred to as ‘saucisonner’.

In the case at issue, planning permissions was granted, subject to conditions, to Greenshoots Energy Ltd for a biomass renewable energy plant, and for a combined heat and power (‘CHP’) plant on nearby land. The CHP plant would be fuelled by biogas produced by the renewable energy plant.  In an earlier (later amended) stage of the application, the two plants were effectively joined: the CHP plant was moved ‘to have the environmental advantage of moving a part…

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‘Establishment’ within the meaning of the Insolvency Regulation: the Court of Appeal in Olympic Airlines

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[Update 5 May 2015: the Supreme Court confirmed the Court of Appeal’s findings on 29 April 2015 and declined to refer to the ECJ, (justifiably in my view) citing acte clair].

Under the EU’s Insolvency Regulation, core of the procedure takes place in the Member State with ‘COMI’: the centre of main interests of the company concerned.

‘Secondary’ and ‘territorial’ proceedings may only be opened if the debtor possesses an establishment within the territory of that other Member State, and only vis-a-vis the debtor’s assets in that State. Article 2(h) of the Regulation defines ‘establishment’ as ‘any place of operations where the debtor carries out a non-transitory economic activity with human means and goods’,  which the Court of Justice in Interedil has specified in less philosophical terms as  ‘a structure with a minimum level of organisation and a degree of stability for the purpose of pursuing an…

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