Adjudicating Europe

2009 is now long past and gone and Adjudicating Europe sees the time fit for some retrospection.

The past year was probably not the most glorious for the European Court of Justice. No groundbreaking decisions seem to have been delivered, and no major transformation (besides the entry into force of Lisbon) has taken place in EU Law outside the confines of the Court. All in all, 2009 appears as a “business-as-usual” term, lacking grandeur, spirit and ambition.

Maybe that’s the way things are supposed to be. A legal order cannot live throughout its existence undergoing radical change every month, and probably that should also apply to EU Law.

However, under the mantle of low-key mediocrity 2009 has given us some interesting clues on the way European integration is currently developing. For instance, our top-ten list includes a considerable number of five-judge judgments, as opposed to the rule according to which big judgments should come from the big Grand Chamber. Also, several of what we consider to be relevant decisions have been chosen not so much for their integrationist approach, but pretty much the opposite (the non-integrationist judgments all come, by the way, from the Grand Chamber). In our top-five Opinions section, Sharpston comes in the lead this year.

But 2009 has also witnessed important events for the Court, such as the re-election, for a third term, of President Vassilios Skouris. The same applied to five-judge chambers, which have started off the 2009-2010 term with three new presidents. A major renovation of the Court took place, but most of the sitting judges saw their mandates renewed for six more years. Advocate General Ruiz-Jarabo Colomer passed away unexpectedly, and Miguel Maduro left the Court on his way to Florence. The urgent preliminary reference seemed still not to kick off completely, and the Nice “revision procedure” against appeal judgments of the CFI was for the first time put into positive action: in M/EMEA the Court gave important and illustrative guidance on how this procedure would work in the future. Also, after a long time with no article 300 Opinions on international treaties, the Court rendered Opinion 1/08 on the competence of the Community in concluding a series of modifications to the GATS agreement. Last but not least, the CFI was again under pressure for undue delays in Grünepunkt, making it the second judgment in which the Court has declared a breach of the fundamental right to an effective remedy on such grounds.

Business as usual; but not the stuff history books are made of.

And with no further ado, Adjudicating Europe is proud to introduce its annual top-ten judgments and top-five Opinions of 2009.

The Top-Ten Judgments

Audiolux
Big judgments don’t always have to come from the Grand Chamber, and Audiolux is very good proof of it. Probably the Court’s biggest decision in 2009, it reflects, in a very sensitive context after the Mangold decision (and the German reaction to it), on the process of judicial-made principles. The Luxembourg Supreme Court questioned whether the principle of protection of minority share-holders was to be recognized as such under EU Law, and the ECJ said, after giving guidance on how principles must be construed, that the answer is «no».  The stick and carrot strategy portrayed here at its very, very best (or worse, depending on the spectator).

Liga Portuguesa
In a surprising u-turn to its case law on mandatory requirements, the Court developed a justification on the objective of combating fraud and crime that will probably ignite new protective measures in many Member States. Internet gambling was considered by the Court to be something akin to prostitution, drug trafficking, or an activity more proper of The Sopranos than of undertakings willing to exercise free movement. In its own regressive way, Liga Portuguesa proves that certain activities are still very sensitive to Member State interference, and the Court is willing to gladly stand aside.

Commission vs. Italy (C-110/05)
If Liga Portugesa is the regressive judgment of the year, Commission vs. Italy is the static decision of the year. Enormous expectations were created when the Court decided to take to the Grand Chamber this apparently straightforward case on the Italian prohibition on motorbike trailers. For a time, it appeared as if Keck’s days had come to an end, but the Court saw it otherwise. Keck stands well and alive, and no changes in this crucial area of the internal market are to be expected for quite some time. At least for what it does not change, it certainly is an important judgment.

Commission vs. Spain (C-154/08)
If Audiolux proves that big judgments don’t come from the Grand Chamber, Commission vs. Spain shows how such judgments can even be decided without an Opinion and no publication in the repertory. For the first time ever, the ECJ declared that a Member State was in breach of EU Law as a result of a Supreme Court decision. This practically entails that the Commission can bring a Member State to Luxembourg once a national court of last instance closes a case and gets it wrong. A momentous decision that was pointed out in Commission vs. Italy in 2004, but never put into action. In fact, some thought that it would never have to be used at all. The Spanish Supreme Court proved them all wrong.

Wolzenburg
An important judgment on several fronts. First, the Court declared that article 12 EC was applicable to Third Pillar measures, despite the fact that the circumstances of the case were only linked via the EAW Framework Decision. Second, the Court stated that a time-period of previous residence was in conformity with EU Law when setting the optional conditions of non-execution to a requesting Member State. The Court considered that a five-year long period of residence was good enough. Considering that non-nationals who have resided for a lesser lapse of time can be forcefully taken back to the requesting Member State, and the rest will not (at least in Germany, where the optional regime has been put into action), the discrimination seems quite hard to digest. But the Court, in parallel terms to those in Förster, found it good enough.

Hartlauer
In this high-profiled case, the Court faced Austrian national rules which made the establishment and operation of a health institution subject to obtaining a prior administrative authorisation based on an assessment of the health needs of the population. In a far-reaching decision concerning diverging public health systems and strong national regulatory frameworks, the Court found the national provisions to be in breach of free movement provisions, and, contrary to what happened in Liga Portuguesa, the justifications seemed not strong enough. However, it is a decision that can only be interpreted side by side to its counterpart: Apothekerkammer.

Apothekerkammer
In contrast with Hartlauer, the Court decided the Apothekerkammer case on a different tone, claiming that free movement provisions do not preclude national provisions that prevented persons not having the status of pharmacist from owning and operating pharmacies. Contrary to Hartlauer, the Court here considered that the justification was relevant and supported Germany’s restriction, despite the fact that in previous judgements (particularly Commission/Greece, C-140/03) it had ruled out a similar Greek restriction applied to opticians.

Vatsouras
An important citizenship case concerning job-seekers. Whilst Förster proved the regressive force of Directive 2004/38 for student allocations, the Court seemed more willing to integrate the Directive and previous case law when job-seekers were at stake. Förster seemed to be at odds with Bidar, the pre-Directive authority on student mobility. But this time, Vatsouras appears as an openly communicative decision with Collins, the pre-Directive precedent. The reason why the Court does this, and furthermore when interpreting the same provision of the Directive (article 24) is a mystery that makes Vatsouras a sphynx-like decision: enigmatic, quiet and very, very important in its practical results.

Olimpiclub
After Kühne and Lucchini, serious doubts appeared as to the real scope of the Court’s case-law on res iudicata of national judgments confirming administrative decisions prior to rulings of the ECJ. If Kühne stated that an eventual revision would be possible only if national law so provided, Lucchini pointed otherwise in the area of State Aids, where the Commission holds exclusive competences. Olimpiclub appears to solve this tension, pulling the rope on the side of Lucchini: the Court declared the illegality of a national rule enshrining the principle of res iudicata that prevented a national court from taking into consideration Community rules on abusive practices in the field of value added tax. Kühne and national court authority appear now seriously wounded, but the judgment is still a five-judge decision. The debate seems therefore far from over.

West Tankers
The jurisdictional case of the year, and maybe of the decade: in brief, the question was whether Regulation No 44/2001 (the Brussels I Regulation) allowed a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement, even though the Regulation excluded arbitration from its scope of application. The Court said “no”, and thereby rejected the use, under the Regulation, of anti-suit injunctions, a strange creature in continental civil procedural law, as well as drastically reducing the role of arbitration agreements in transnational civil litigation.

The Top-Five Opinions

Google France
In the first major trademark-and-internet case before the Court of Justice, Advocate General Maduro delivered a powerful Opinion on the scope of protection of EU Law when facing AdWords, search engines and fake products. Maduro’s stance is mostly pro-market and, in this case, pro internet distribution of information, even when trademark holders may be at stake. A delicate balance had to be struck between the uses of the internet and intellectual property, and Maduro finally inclined himself in favour of the former in a substantially (but not uncontroversial) correct decision.

Alpe Adria
An Opinion that represents well the legacy of its author – the suddenly passed away Advocate General Ruiz-Jarabo Colomer. Beyond his passion for literary heroes, Ruiz-Jarabo Colomer became well-known for his deeply thought opinions concerning the role of national courts in the EU institutional system. This Opinion is no exception. The reasoning goes much further than the “usual” concerns of uniformity of EU law and explains how the authority of EU is dependent on courts’ independence, their relationship with the law and the resolution of disputes, which gives them a “singular voice which is isolated from the political sphere and linked only to the will of the law”. Enjoyable and inspirational reading indeed.

Bavarian Lager
Sharpston’s Opinion in Bavarian Lager sharply contrasted with other two Opinions in parallel cases (see the somewhat dull Opinions in Ilmenau and API) by its bold and brave stance on access to documents. In a spectacular twist, the Advocate General inverted the arguments of the parties and reached an original interpretation of Regulation 1049/2001. An excellent example of how an Advocate General can push the debate to its very limits, and not necessarily in the most orthodox of ways, but enlightening the debate and giving good arguments for the future.

Olimpiclub
Undoubtedly the underlying force of the judgment in this case, Mazak’s superb Opinion pushed the Court into a delicate terrain without feeling too lonely on the way there. Mazak’s description of the case law and of its weaknesses proves how an Advocate General can face the Court with its own contradictions, forcing it to move in the right direction (or the least unfortunate course). Since Palacios de la Villa, Mazak had not delivered such a powerful text, and it is a delight to see him back in business.

Olympique Lyonnais
Brief, accurate, powerful and (thus) difficult not to follow… This is how one can bluntly describe this Sharpston’s Opinion on a classic of European law (free  movement  of  workers)  in the football’s field. Sharpston made clear,  following Bosman, that sport is subject to Community law and to the rules on  free  movement in so far as it constitutes an economic activity. However, a Member State may put restrictions, such as a requirement to pay training compensation, in order to encourage the recruitment and training of young professional  football players provided that the compensation is related to actual training costs.