EU Law Blog

I think that there is still some uncertainty about the question of deciding what court will have jurisdiction over a case in the EU. So I thought I’d try to clarify this in a post. And it occurred to me that perhaps we are just so used to the idea that federal courts have jurisdiction over disputes involving federal law that it is difficult to understand why the EU would work differently.

But in fact the EU doesn’t work that way for a couple of reasons:

1. There are only 2 EU level courts, the ECJ and CFI, in contrast to the large numbers of federal district courts and federal appeals courts in the US, thus, for very practical reasons it wouldn’t make sense to say that all cases involving issues of EU law should go to the ECJ/CFI (the workload problems are bad enough already);

2. It is harder to separate out EC law and national law than it is to separate federal and state law here - and directives are one of the main reasons - a legal instrument which is enacted at the EU level and needs action within the domestic systems of the Member States is a sort of hybrid instrument we don’t have an equivalent for here.
It’s often not easy to separate out state law and federal law here either but para 1 above makes a difference here - with more resources in the federal system it doesn’t matter too much if federal courts deal with cases involving issues of state law (federal courts in the past often disapproved of the idea of people trying to “bootstrap” claims which are really state law claims into federal court, but statutes which restrict litigation under federal law now may also try to stop people from bringing claims under state law).

Anyway, to simplify the question (I think) we need to realise that what matters for the purposes of jurisdiction in the EU is not the source of the legal claims but who the parties are. Here are the general rules:

If the plaintiff is an EU institution (Commission, Council, Parliament etc) it will sue in the ECJ.

If the plaintiff is a Member State:
If the defendant is an EU institution plaintiff sues in the ECJ
If the defendant is another Member State plaintiff sues in the ECJ
If the defendant is an individual or firm plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)

If the plaintiff is an individual or firm:
If the defendant is an EU institution plaintiff sues in the CFI (provided it has standing to do so)
If the defendant is a Member State plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)
If the defendant is another individual or firm plaintiff sues in national court (but if an issue of EC law arises in the case there may be a reference to the ECJ)

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We spent some time thinking about domestic rules which are designed to or in fact do make it harder for foreign products to compete with domestic products. This article from the BBC shows that it may in fact be quite difficult to identify the nationality of certain food products - in this case beer. Is Guinness Irish?:

Guinness.. is actually brewed in more than 50 countries worldwide.
Furthermore, Guinness is owned by global drinks giant Diageo, which is headquartered in London and listed on both the London and New York stock exchanges.

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There will be a review session on Friday May 5 from 11 am in Room 309. The room is booked through to 1pm but we don’t need to stay there until then ! The review session is optional (for you, not for me). The purpose of the session is primarily to try to clear up questions you have about the material.

As I said yesterday, I am happy to answer questions by email or in person at other times.

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The Jean Monnet Chair of European Union Studies, of the University of Miami in cooperation with the Miami-Florida European Union Center of Excellence, cordially invites you to a conference:

The euro and the dollar

When: Tuesday, April 25, 2006, 8:30am-4:00 pm
Where: Biltmore Hotel, Coral Gables

Keynote Presentations by:
Joaquín Almunia, Member of the European Commission
and
José Manuel González-Páramo, Member of the Executive Board, European Central Bank

RSVP: Catherine Cottrell: CMC330@aol.com, or call 305-284-3266.

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The Commission is taking enforcement action against a number of Member States which do not allow sports betting. Firms which offer sports betting services are complaining that these Member States in fact allow gambling domestically through state lotteries and that they are discriminating against the foreign service providers (euractiv story here). The Commission says:

The Commission decision to inquire into the compatibility of the measures in question is based on complaints made by a number of service providers and on information gathered by the Commission Services. The complaints concern restrictions on the provision of sports betting services, including the requirement for a State concession or licence (even where a provider is lawfully licensed in another Member State). In some cases, restrictions also extend to the promotion or advertising of the services and to the participation of nationals in the Member State in question in the games.
The European Court of Justice has previously stated that any restrictions which seek to protect general interest objectives, such as the protection of consumers, must be “consistent and systematic” in how they seek to limit betting activities. A Member State cannot invoke the need to restrict its citizens’ access to betting services if at the same time it incites and encourages them to participate in state lotteries, games of chance or betting which benefits the state’s Finances.

The issue is similar to issues we have thought about before. It seems to me that if a Member State were to prevent a state lottery from another Member State offering tickets across borders while encouraging people to buy tickets in the home lottery that would be a real problem. But I’m not sure that sports betting operations are really the same sort of thing. If a member State allowed domestic sports betting operations to provide services and banned foreign competitors that would be a problem too. But is having a domestic lottery and banning foreign sports betting the same issue or not? It assumes that all gambling is equally bad or good. Does it make a difference that lotteries may be used for socially beneficial purposes?

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Reminder: Tomorrow at 11 am in Room 352, Margot Wallstrom (ie, normal time, different room).

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Further to yesterday’s class:

Here is a link to the Commission’s climate change web pages.

There is a voluntary market for emissions trading in Chicago, the Chicago Climate Exchange, which is planning to allow its members to use EU emissions trading allowances on its market.

CO2 emissions in the UK (but not other greenhouse gas emissions) are rising.

Russia, one of the largest producers of greenhouse gases in the world, stands to make significant profits under the Kyoto emissions trading scheme because it had much higher levels of emissions in 1990 and the Treaty scheme requires states to move back to 1990 levels.

The Pew Center on Global Climate Change published a Report in February 2006.

The World Wildlife Fund publsihes tips on what individuals can do to address climate change.

You are not responsible for any of the linked material for the purposes of the exam - I’m providing the links in case you are interested in these issues. However, the lecture yesterday does give another useful example of an EU policy area.

I also think that focusing on this material does illustrate another area where some EU policies conflict with others. Article 6 of the EC Treaty provides:

Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development.

However, increasing the amount of free trade in goods and increasing the movement of persons around the EU (workers and people travelling to benefit from tourism-related services) has implications for the environment. Could a Member State validly set up a policy of encouraging people to buy local produce and justify the policy on environmental grounds (cf. Buy Irish, Austrian Trucks case)?

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This is a little off topic but here goes. We’ve discussed issues of free movement of persons in the EU. But without rules on free movement of persons it can be difficult for people to move about. I was stunned to read today that the Halle Orchestra, founded in 1858 and based in my home town (city) of Manchester, has cancelled a planned US tour because it decided that the enormous cost of obtaining visas (because of lost work days due to the need to visit the US embassy in London for personal interviews) meant that the visit was not sensible from an economic point of view. I have heard similar stories about academics deciding not to try to come to the US because it is too complicated.

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The Registrar’s office will carry out evaluations of this class tomorrow at 12.05 pm.

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The Guardian’s story on the UK media regulator’s (Office of Communications, commonly known as Ofcom) proposals about restricting the advertising of food to kids is here. The full report is available here. Here is an excerpt from the proposals:

The aim of the revised advertising standards would be to reduce the level of hildren’s emotional engagement with food and drink advertisements. In summary,
• food and drink advertisements must avoid anything likely to encourage poor nutritional habits or an unhealthy lifestyle in children;
• advertisements for food and drink must not advise or ask children to buy, or ask their parents to buy, the products. There must be no appearance of encouraging children to pester others to buy the products on their behalf;
• promotional offers (including collectables and giveaways) in food and drink advertisements must not be targeted at children under 10;
• food and drink advertisements must not encourage children to eat or drink the product only to obtain a promotional offer;
• celebrities must not be used in food and drink advertisements whose content is targeted directly at children under 10. This would prevent advertisers from drawing on the authority and trust that children might vest in these characters;
• licensed characters must not be used in food and drink advertisements whose content is targeted directly at children under 10. This would prevent advertisers from using licensed characters (e.g. film or cartoon characters) that might make it difficult for younger children to distinguish between programmes and advertising;
• advertisers would remain free to use brand characters (that is those solely associated with a particular brand) on the grounds that they do not carry the same authority as licensed characters;
• nutrition claims must be supported by sound scientific evidence, and must not give a misleading impression of the health benefits of the product as a whole;
• no nutritional or health claims may be targeted at pre-school children (under 5 years); and
• advertisements must not condone or encourage excessive consumption of any food or drink.
These provisions would apply also to sponsor credits. Government sponsored or endorsed healthy-eating campaigns would not be exempted from these rules.

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