Monthly Archives: September 2013

Know your biomass from your biomass! The ECJ allows less favourable treatment of wood and wood waste in Industrie du bois de Vielsalm

gavc law - geert van calster

In Industrie du bois de Vielsalm, Case C-195/12, the ECJ yesterday held in favour of the Walloon Region of Belgium, finding that a regional support scheme providing for the grant of ‘green certificates’ to cogeneration plants, which grants a larger number of green certificates to cogeneration plants processing principally forms of biomass other than wood or wood waste, does not infringe the principle of equality and non-discrimination.

The Court found first of all that Directive 2004/8 on the promotion of co-generation does not exhaustively regulate national support schemes for cogeneration and electricity production from renewable energy sources: Member States are given wide discretion.

It then argued that there are sound environmental reasons for discriminating against wood and wood waste in co-generation support schemes:

‘ (…) even at the level of the renewable nature of the resource, and hence from the point of view of its availability, as also from the…

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Lithuanian Supreme Court refuses recognition based on Ordre Public – Right of the Child to be heard

gavc law - geert van calster

The Lithuanian Supreme Court held on 30  April 2013 that a Russian Federation judgment granting child custody, could not be recognised in Lithuania for reasons of Ordre Public. The 7-year-old  child had not been heard (including on his opinion with whom of the parents he’ld prefer to live) either directly or indirectly  in the underlying proceedings. Hearing the child, the Court held, was however prerequisite under international human (children’s) rights Conventions.

Recourse to Ordre Public is not common, as readers will be aware. The judgment therefore is quite significant (and correct in my view), particularly as the European Commission is currently trying to map its use across the Member States (within the EU or vis-a-vis relations with third States, such as here).

Thank you to Sigita Fomičiova for the tip-off and copy of the judgment.

Geert.

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van Buggenhout /van de Mierop: ECJ disagrees with its AG re protection of debtors

gavc law - geert van calster

Postscript 18/12/2014: the Tribunal de Commerce held on 8 December 2014: in view of applicable Belgian law, and despite the Bank’s efforts to distinguish the ECJ’s ruling, the sum was awarded to the liquidators. Appeal may follow.

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I reported earlier on the AG’s Opinion in C-251/12, van Buggenhout /van de Mierop.  The ECJ yesterday disagreed: the AG had opined on the basis of teleological and linguistic analysis. The Court does so, too, however reaches a different conclusion, in particular on the basis of a narrow reading of ‘to the benefit of’ or ‘in favour of’ the debtor:

The Court refers amongst others (and in deciding fashion so it would seem (see para 30 of the judgment)) to Article 24(1)’s provision that the obligation honoured for the benefit of the insolvent debtor ‘should have been for the benefit of the liquidator‘. I am not so sure that…

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Bird flu gives European Commission a late headache – The ECJ emphasises the discipline of the precautionary principle in Animal Trading Company

gavc law - geert van calster

The General Court (the court in first instance) of the European Court of Justice has held against the Commission in Case T-333/10 Animal Trading Company. The English version of the judgment was not yet available at the time of writing.

The applicants seek compensation for the harm which they have suffered as a result of, first, the European Commission ban on the importation of birds caught in the wild, which entered into effect in October 2005 in the light of the avian flu phenomenon, second, the extensions of that ban, and, third, the restrictions which have been in force since 1 July 2007 on the importation of birds and which, de facto, continue the prohibition of the importation of birds caught in the wild.

Applicants’ arguments centered on firstly the executive power of the Commission  – with the General Court holding however that the Commission’s action was not ultra…

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‘More closely connected’ in employment contracts – The ECJ in Schlecker emphasises tax and national insurance (social security)

gavc law - geert van calster

I reported earlier on Wahl AG’s Opinion in Schlecker. The ECJ held last week. Reminder: formally the judgment relates to the application of the similar provision in the predecessor of the Rome I Regulation, the 1980 Rome Convention. The relevant provisions have not materially changed, however. The ECJ in fact refers to the slightly more precise provisions of Rome I in support.

In the case at issue, a closer connection with Germany was suggested by the circumstances as a whole, in particular by the following facts: the employer is a legal person governed by German law; the remuneration was paid in German marks (prior to the introduction of the euro); the pension arrangements were made with a German pension provider; Ms Boedeker had continued to reside in Germany, where she paid her social security contributions; the employment contract referred to mandatory provisions of German law; and the employer reimbursed Ms Boedeker’s travel…

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Of Vikings, airlines and trade unions – The High Court in British Airways leaves a treasure trove of questions on ‘civil and commercial’

gavc law - geert van calster

In  British Airways v Sindicato Espanol de Pilotos de Lineas Aereas – SEPLA, crucial consideration was whether the court had jurisdiction under the Brussels I Regulation to determine the claim brought by BA against SEPLA, a Spanish trade union, for damages and declaratory and injunctive relief alleging that strikes of Spanish airline pilots organised by SEPLA were unlawful under Spanish law in that they were in breach of the Claimants’ right to freedom of establishment and to provide cross border services under Articles 49 and 56 TFEU. The international federation of airline pilots association acted as anchor defendant (being domiciled in the UK at the time the action was introduced (it had since moved to Canada) and the case against both arguably being closely linked within the meaning of Article 6 of the Jurisdiction Regulation).

The High Court accepted the ‘knock-out point’ of defendant: that the matter was not…

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Reflective application of exclusive jurisdictional rules: The High Court in Ferrexpo

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In Ferrexpo, the High Court applied a so-called ‘reflexive’ or ‘mirror’ application of the exclusive jurisdictional rules of Article 22 of the Brussels I Regulation. The case was held in April 2012 – it has only recently come to my attention.

Mr Babakov, a Russian, trading through a variety of companies with registered office in England (collectively known as ‘Gilson’), has a long-running litigation against Mr Zhevago, of Ukrainian nationality, equally trading through a variety of companies, with registered office in Switserland (collectively known as ‘Ferrexpo’). At the core of the dispute lies the control over a Ukrainian mining company named OJSC.

In 2005, Babakov files in the Ukraine, with a view to having a number of shareholder resolutions declared void. These were taken in 2002 and had decided that Gilson’s shares in OJSC were invalid and had to be transferred to Ferrexpo. In 2010 a Ukrainian court…

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