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JUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RGHTS AND THE COURT OF JUSTICE OF THE EUROPEAN UNION No. 6 (June 2013)
European Courts is an EU and ECHR law blog for judges, legal practitioners, legal academics and other interest groups. Its general objective is a better understanding of EU and human rights law. This blog also aims at bridging the gap between the law in the books and the law in action. It creates a platform of exchange of knowledge and experiences between judges and academics. European Courts publishes a monthly newsmagazine that provides an overview of recent case law from the European Court of Human Rights in Strasbourg and the Court of Justice of the European Union. Editors: Marc de Werd, Roel Andrea, Robin Cozijnsen, Menco Rasterhoff, Nienke de Visser, Mirjam Winkels. Copyright 2013 Marc de Werd
INDEX
1. JUDGMENTS FROM THE EUROPEAN COURT OF HUMAN RIGHTS READ THE COURTS CASE LAW INFORMATION NOTES PROHIBITION OF TORTURE (Article 3) RIGHT TO LIBERTY AND SECURITY (Article 5) RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE (Article 8) DECISION ON ADMISSIBILTY PROTECTION OF PROPERTY (Article 1 of Protocol No. 1)\ RIGHT TO EDUCATION (Article 2 of Protocol No. 1) RIGHT TO FREE ELECTIONS (Article 3 of Protocol No. 1)
2. JUDGMENTS FROM THE EU COURT OF JUSTICE AGRICULTURE CIVIL AND COMMERCIAL MATTERS COMMON FOREIGN AND SOCIAL SECURITY POLICY COMPETITION LAW CONSUMERS IMMIGRATION LAW INTELLECTUAL PROPERTY MEDICINAL PRODUCTS SOCIAL SECURITY STATE AID TAXES (AIR)TRANSPORT
STRASBOURG
JUDGMENTS
READ THE COURTS CASE LAW INFORMATION NOTES
The Court publishes fact sheets on Strasbourg case law and case law information notes.
DECISION ON ADMISSIBILTY
7 May 2013 Kupenova and others v. Bulgaria press release decision AND Nedelcheva and others v. Bulgaria press release judgment Black sea coastal resort restitution of land cases Both cases concerned applications brought by 12 Bulgarian nationals who live in Burgas (a port city on the Black Sea) and Sozopol (a resort on the Black Sea). All the applicants complained that the authorities had refused to restore to them land expropriated from their ancestors after 1945 and on which the State-owned seaside resort Duni had subsequently been constructed. In the Chamber judgment Nedelcheva and Others the Court found in particular that the authorities had failed to enforce a final court judgment of 4 January 2008 in which the applicants had been awarded compensation in lieu of restitution of the land and that they had been responsible for lengthy delays in the procedures for restitution and compensation. However, in the decision Kupenova and Others, which raised similar factual and legal issues, the Court rejected the applicants complaints as inadmissible as the case did not concern compensation for loss of property but the provision of an alternative means of completing the restitution process and, as it had been established that restitution in kind was impossible, it still remained open for the applicants to assert their restitution rights by claiming the compensation provided for by domestic law. 30 april 2013 Hasan Uzun t. Turkije press release decision An individual application must be lodged with the Turkish Constitutional Court before the case can be taken to Strasbourg The Court reiterated that the rule of the exhaustion of domestic remedies was an indispensible part of the functioning of the Convention mechanism. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention.
been provided with a transitional period in which to adjust to the new severance scheme. Moreover, in depriving her of an acquired right which served the special social interest of reintegrating the labour market, the Hungarian authorities had exposed the applicant to an excessive individual burden.
2 May 2013 Panteliou-Darne and Blantzouka t. Griekenland press release judgment Two air-hostesses working in the public sector sought the retroactive payment of family allowances that their employer, under statutory provisions that were declared unconstitutional in 2001, had stopped paying them in 1997. In view of the period of several years that had elapsed before the applicants brought their cases to a court, the Court found that their employer had been legitimately entitled to conclude that they had waived any claims to such allowances. In addition, the Court took the view that the retroactive payment of family allowances to all employees would have had serious consequences for the economic viability of the airline which was already in administration. The Court thus concluded that the Greek courts dismissal of the applicants claims had not upset the fair balance between the requirements of the general interest and the protection of their right to the peaceful enjoyment of their possessions.
The case concerned whether the right to vote of a British national not resident in the United Kingdom since 1982 had been violated by election laws preventing those resident outside of the United Kingdom for more than 15 years from voting. The Court, taking into account the room for manoeuvre (margin of appreciation) to be left to the United Kingdom Government in regulating its parliamentary elections, decided that the election law in question had not gone too far in restricting the right to Mr Shindlers right to free elections.
LUXEMBURG
JUDGMENTS
AGRICULTURE
30 May 2013 Cases T-454/10 + T-482/11 Anicav / Commission + Agrucon / Commission judgment Agriculture Common organisation of the markets Aid in the fruit and vegetable sector Actions for annulment Whether directly concerned Admissibility Processed fruit and vegetables Operational funds and operational programmes Funding of [non-]genuine processing activities 29 May 2013 Case C-101/12 Schaible opinion Agriculture Regulation (EC) No 21/2004 Identification and registration of ovine and caprine animals Article 16 of the Charter of Fundamental Rights of the European Union Article 20 of the Charter Proportionality Equality
8 May 2013 Case C-529/11 Alarape en Tijani judgment Freedom of movement for persons Regulation (EEC) No 1612/68 Article 12 Divorced spouse of a national of a Member State who has worked in another Member State Adult child pursuing his studies in the host Member State Right of residence of parent who is national of a non -Member State Directive 2004/38/EC Articles 16 to 18 Right of permanent residence of family members of a Union citizen who are not nationals of a Member State Legal residence Residence based on Article 12 above
COMPETITION LAW
30 May 2013 Case C-40/12 P Gascogne Sack Deutschland (anciennement Sachsa Verpackung opinion Appeal Competition Cartel Industrial plastic bags sector Fines Breach of fundamental right to a fair hearing within a reasonable time by the General Court 30 May 2013 Case C-50/12 P Kendrion opinion AND 30 May 2013 Case C-58/12 P Groupe Gascogne opinion Appeal Competition Cartel Industrial plastic bags sector Fines Breach of fundamental right to a fair hearing within a reasonable time by the General Court
CONSUMERS
30 May 2013 Case C-397/11 Jrs judgment Directive 93/13/EEC Unfair terms in consumer contracts Examination by the national court, of its own motion, as to whether a contractual term is unfair Consequences to be drawn by the national court from a finding that the term is unfair 30 May 2013 Case C-488/11 Asbeek Brusse AND de Man Garabito judgment Directive 93/13/EEC Unfair terms in consumer contracts Residential tenancy agreement between a landlord acting on a commercial basis and a tenant acting on a non-commercial basis Examination by the national court, of its own motion, as to whether a contractual term is unfair Penalty clause Annulment of the clause
DATA PROTECTION
30 May 2013 Case C-342/12 Worten judgment Processing of personal data Directive 95/46/EC Article 2 Concept of personal data Articles 6 and 7 Principles relating to data quality and criteria for making data processing legitimate Article 17 Security of processing Working time Record of working time Access by the national authority responsible for monitoring working conditions Employers obligation to make available the record of working time so as to allow its immediate consultation
IMMIGRATION LAW
30 May 2013 Case C-528/11 Halaf judgment Asylum Regulation (EC) No 343/2003 Determination of the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national Article 3(2) Discretion of the Member States Role of the Office of the United Nations High Commissioner for Refugees Obligation of Member States to request that Office to present its views None 30 May 2013 Case C-534/11 Arslan judgment Area of freedom, security and justice Directive 2008/115/EC Common standards and procedures for returning illegally staying third-country nationals Applicability to asylum seekers Possibility of keeping a third-country national in detention after an application for asylum has been made
INTELLECTUAL PROPERTY
30 May 2013 Case T-396/11 ultra air / OHMI - Donaldson Filtration Deutschland (ultrafilter international) judgment Community trade mark Invalidity proceedings Community word mark ultrafilter international Absolute ground for refusal Article 52(1)(a) of Regulation (EC) No 207/2009 Abuse of rights
16 May 2013 Case C-609/11 P Centrotherm Systemtechnik / centrotherm Clean Solutions opinion
Appeal Community trade mark Application for revocation Evidence filed after expiry of the time-limit set by OHIM Allocation of the burden of proof Examination of facts by OHIM of its own motion Probative value of sworn statement 16 May 2013 Case C-610/11 P Centrotherm Systemtechnik / centrotherm Clean Solutions opinion Appeal Community trade mark Application for revocation Evidence filed after expiry of the time-limit set by OHIM Allocation of the burden of proof Examination of facts by OHIM of its own motion Probative value of sworn statement 16 May 2013 Case C-122/12 P Rintisch / BHIM opinion Appeal Community trade mark Opposition Evidence of existence and validity of earlier mark Evidence and translations filed after expiry of the time-limit set by OHIM Discretion of the Board of Appeal 16 May 2013 Case C-621/11 P New Yorker SHK Jeans / BHIM opinion Appeal Community trade mark Opposition proceedings Proof of genuine use Evidence filed after the expiry of the time-limit set 14 May 2013 Case T-249/11 Sanco / OHMI - Marsalman (Reprsentation d'un poulet) judgment Community trade mark Opposition proceedings Application for Community figurative mark representing a chicken Earlier national figurative mark representing a chicken Relative ground for refusal Similarity between goods and services Article 8(1)(b) of Regulation (EC) No 207/2009 14 May 2013 Case T-244/12 Unister / OHMI (fluege.de) judgment Community trade mark Application for the Community word mark fluege.de Absolute grounds for refusal Descriptive character No distinctive character Distinctive character acquired through use Article 7(1)(b) and (c) and Article 7(2) and (3) of Regulation (EC) No 207/2009 7 May 2013 Case T-579/10 macros consult / OHMI - MIP Metro (makro) judgment Community trade mark Invalidity proceedings Community figurative mark makro Company name macros consult GmbH Right acquired prior to the application for registration of a Community trade mark and entitling its holder to prohibit the use of the Community trade mark applied for Non-registered signs protected under German law Article 5 of the Markengesetz Article 8(4), Article 53(1)(c), and Article 65 of Regulation (EC) No 207/2009
MEDIA
16 May 2013 Case C-234/12 Sky Italia opinion Directive 2010/13/EU Audiovisual media services Limitation of transmission time for television advertising Stricter national rules for pay TV than for free-to-air TV General principle of equal treatment under EU law Fundamental freedoms of the European internal market Freedom and pluralism of the media
MEDICINAL PRODUCTS
30 May 2013 Case C-109/12 Laboratoires Lyocentre opinion Medicinal product Medical device CE marking Product classification Procedure
SOCIAL SECURITY
16 May 2013 Case C-598/10 Wencel judgment Article 45 TFEU Regulation (EEC) No 1408/71 Article 10 Old-age benefits Habitual residence in two different Member States A survivors pension received in one of those States and a retirement pension in the other Withdrawal of one of those benefits Recovery of benefits to which it is alleged the recipient was not entitled
STATE AID
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30 May 2013 Case C-677/11 Doux levage en Cooprative agricole UKL-ARREE judgment Article 107(1) TFEU State aid Concept of State resources Concept of imputability to the State Inter-trade organisations in the agricultural sector Recognised organisations Common activities decided on by those organisations in the interests of trade Financing by means of contributions introduced on a voluntary basis by those organisations Administrative measure making those contributions compulsory for all traders in the agricultural industry affected
TAXES
30 May 2013 Case C-651/11 X judgment VAT Sixth Directive 77/388/EEC Article 5(8) Concept of transfer of a totality of assets or part thereof Disposal of 30% of the shares in a company to which the transferor supplies services that are subject to VAT 30 May 2013 Case C-663/11 Scandic Distilleries judgment Request for a preliminary ruling Directive 92/12/EEC Excise duties Products released for consumption in a Member State where the excise duty was paid Same products transported to another Member State where the excise duty has also been paid Request for reimbursement of the excise duty paid in the first Member State Refusal for not introducing the request before the goods were dispatched Compatibility with European Union law 16 May 2013 Case C-169/12 TNT Express Worldwide - judgment Value added tax Directive 2006/112/EC Article 66(a) to (c) Transport and shipping services Chargeability Date on which payment is received and no later than 30 days from the date on which the services are supplied Invoice issued earlier 16 May 2013 Case C-191/12 Alakor Gabonatermel s Forgalmaz Kft. judgment Non-repayment of the entirety of value added tax unduly paid National legislation precluding repayment of VAT because it has been passed on to a third party Compensation in the form of aid covering a fraction of the nondeductible VAT Unjust enrichment 8 May 2013 Case C-142/12 Marinov judgment Value added tax Directive 2006/112/EC Articles 18(c), 74 and 80 Cessation of the taxable economic activity Removal of the taxable person from the VAT register by the tax authorities Retention of goods on which the VAT became deductible Taxable amount Open market value or purchase value Determination at the time of the transaction Direct effect of Article 74 8 May 2013 Case C-271/12 Petroma Transports - judgment Taxation Value added tax Sixth Directive 77/388/EEC Right to deduct input tax Obligations of the taxable person Possession of improper or inaccurate invoices Omission of mandatory particulars Refusal of the right to deduct Evidence subsequent to the occurrence of the transactions invoiced Correcting invoices Right to refund of VAT Principle of neutrality
(AIR)TRANSPORT
30 May 2013 Case C-512/10 Commissie / Polen judgment Failure of a Member State to fulfil obligations Transport Directive 91/440/EEC Development of the Communitys railways Directive 2001/14/EC Allocation of railway infrastructure capacity Article 6(2) and (3) of Directive 2001/14 Continued absence of financial balance Articles 6(1) and 7(3) and (4) of Directive 91/440 Absence of incentives for infrastructure managers Articles 7(3) and 8(1) of Directive 2001/14 Calculation of the minimum access charge
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