Category Archives: European Law

The EU’s ‘Bio economy’. Utopian, realistic, protectionist. Or all of these?

I have just recently stumbled across the EU’s Bioeconomy strategy, classified in the administrative organogram at least under ‘Research and innovation’. It could also be DG Industry. Or DG Trade. Or DG  Env. Or indeed DG Agri. Tucking it away under Research and innovation was a good idea, I believe: best to keep it safely away from daily policy concerns and ditto lobbying. The Bioeconomy – which is defined as encompassing the sustainable production of renewable resources from land, fisheries and aquaculture environments and their conversion into food, feed, fiber bio-based products and bio-energy as well as the related public goods – is seen by the EC as a successor to the EU’s Biosociety program, which however was more scientific in outlook (lots of talk of new technologies).

A big gap in its approach, to me at least, is its lack of discussion on reduced consumption and ‘need‘ (the Club of Rome has some powerful insight into this) which is a pitty. It talks mostly about increasing and diversifying ‘output’, rather than on reducing it or matching it to true need. For in its current outlook, the Bioeconomy feels more like a postersite for EU ‘innovative’ technologies than one for foresight in development priorities. And no, that is not properly done elsewhere in the EC.

Geert.

The High Court accepts jurisdiction in ‘Safari users’ [Vidal-Hall et al v Google] case. European privacy rules bolstered?

In Vidal-Hall et al v Google Inc, the High Court assessed its jurisdiction against Google Inc and found no reason to apply forum non conveniens. Google UK was not involved, the Jurisdiction Regulation (44/2001) does not apply.

Claimants allege that Google misused their private information, and acted in breach of confidence, and/or in breach of the statutory duties under the Data Protection Act 1998 s.4(4) (“the DPA”), by tracking and collating, without the claimants’ consent or knowledge, information relating to the claimants’ internet usage on the Apple Safari internet browser. Applying the Spiliada criteria, Tugendhat J first of all dismissed the relevance of the location of documents, serving Google a dose of its own medicine: ‘In any event, in the world in which Google Inc operates, the location of documents is likely to be insignificant, since they are likely to be in electronic form, accessible from anywhere in the world. ‘ ‘By contrast, the focus of attention is likely to be on the damage that each Claimant claims to have suffered. They are individuals resident here, for whom bringing proceedings in the USA would be likely to be very burdensome (Google Inc has not suggested which state would be the appropriate one). The issues of English law raised by Google Inc are complicated ones, and in a developing area. If an American court had to resolve these issues no doubt it could do so, aided by expert evidence on English law. But that would be costly for all parties, and it would be better for all parties that the issues of English law be resolved by an English court, with the usual right of appeal, which would not be available if the issues were resolved by an American court deciding English law as a question of fact.’ (at 132-233)

Forum non conveniens dismissed – the case can go ahead.

The judgment, in reviewing the prima facie case on the merits, also bolsters the existence of a tort of ‘misuse of private information’ and surely adds to the growing authority of European-based data protection rules.

(On an aside, note the rather delightful observation by Tugendhat J (at 56) that ‘civil law jurisdictions have managed to develop civil liability for breaches of an obligation of confidence in relation to personal information without the benefit of a historical equivalent of the law of equity.’).

Geert.

Preussen Elektra confirmed? Bot AG in Essent

gavc law - geert van calster

Bot AG in Essent, Cases C-204/12 through to C-208/12 Essent v VREG (at the time of writing the English version of the Opinion was not yet available, however it will be soon) summarised the questions referred as whether the Flemish support scheme for renewable energy, which grants renewable energy certificates to producers of such energy only if they are located in the Flemish Region, and which obliges electricity distributors to surrender a minimum amount of such certificates without being able to offer such certificates obtained in other EU Member States, is compatible with the free movement of goods and with the EU’s non-discrimination principle. Directive 2001/77 regulates both renewable energy (or ‘green’) certificates – which are used by a Member State to show its meeting its obligations to produce a minimum amount of electricity from renewable sources – and certificates of origin, which allow an electricity distributors to prove that…

View original post 982 more words

The Flower Pot Men strike again? The EC’s illustrative list of packaging.

There is environmental law and then there is environmental law.

On the one hand of the spectrum, one finds highbrow discussions such as in Kiobel, where novel approaches to regulation culminate in the discussion of how one can, if one should at all, subject multinational corporations to the strictest standards of environmental and human rights law, wherever they operate. These issues speak easily to faculty, students, activists and governments.

On the other extreme, the recent European Commission illustrative list of packaging. It confirms that for instance, wax layers around cheese are not packaging within the meaning of the European packaging and packaging waste Directive. Flower pots are, if they are not intended to stay with the plant for the rest of its life. The list is, I fear, highly relevant. No packaging = no packaging waste laws = no obligations to reduce such packaging, no packaging levies apply, no waste management company needs to be recruited to deal with the waste, no permit required for export, etc. These issues are a bit less handy to entertain with faculty, students, activists and governments. They speak to CFOs and compliance managers, rather than to the media. Lest it be to bemuze or provide ammunition for those who consider the EU to be over-regulatory.

I find it is in pondering both ends of the spectrum that environmental law truly comes to life.

Geert (just in case you wondered: tea bags: not packaging).

USSC ruling has an impact on EU private international law, too

I have published my first impression of the USSC Kiobel case here. At issue is the extraterritorial application of the US Alien Torts Act, in a case pitching Nigerian individuals against a number of MNCs, for alleged violation of human rights law. As I note in my assessment, the EU are pondering a different route to further the debate on Corporate Social Responsibility: namely the use of classic private international law /conflict of laws procedures (the Brussels I and Rome II Regulation) to bring non-EU activities of EU-based MNCs within EU purview.

The EU’s approach is not without its faults or challenges. However it is certain to come back to the fore following the USSC’s strict views in Kiobel.

Geert.