EU Law Blog

On Thursday we will begin with the question about how much discretion the Member States had about how to go about implementing the Food Supplements Directive. Do the Member States just have to include the directive’s rules in their own legal systems? Note the ways in which the UK’s implementing regulations diverge from the contents of the directive. Write out a list.

If the UK’s regulations are different from the directive do you think that the difference(s) is/are within the powers of the UK under the directive or not? Which aspects of the directive look as though they reflect the idea of the UK choosing its “form and methods” of implementation under Art 249 (i.e. adjusting implementation to national conditions)?

As a directive, the Food Supplements Directive won’t produce direct effects allowing a purchaser to enforce the directive against a manufacturer/seller of food supplements which don’t conform to the requirements of the directive (because this would be horizontal direct effect which does not exist in relation to directives). However, it would be possible to enforce rights under the directive against a Member State (e.g. if a Member State omitted to ensure that conforming products could be sold in its territory).

Do your conclusions about the Member States’ discretion affect whether you think this is the right answer in this case?

If the EU institutions had acted by regulation would that have made a difference?

Then we will start to look at the litigation over the Directive. I don’t think that Judge Richards’ decision will take very long. Do you agree with his approach to the decision about whether the reference should be made?

Then I think (contrary to what I said in class) that we will have time to look at the Advocate General’s opinion in the case at pp 65-81 (and not the ECJ’s decision). The claimants raised a number of different challenges to the vailidity of the Directive, based on various provisions of the Treaty and on general principles of Community law and fundamental rights. Assess these challenges and the Advocate General’s responses. Do you agree with the opinion in all respects/some/none?

Advocate General Geelhoed’s bio on the Court’s website is as follows:

Leendert A. Geelhoed
Born 1942; Research Assistant, University of Utrecht (1970-71); Legal Secretary at the Court of Justice of the European Communities (1971-74); Senior Adviser, Ministry of Justice (1975-82); Member of the Advisory Council on Government Policy (1983-90); various teaching assignments; Secretary-General, Ministry of Economic Affairs (1990-97); Secretary-General, Ministry of General Affairs (1997-2000); Advocate General at the Court of Justice since 7 October 2000.

In what ways does the Advocate General’s opinion read differently from the ECJ’s decisions we have been studying?

(This posting was amended at 9.40 pm Tuesday)

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Bird flu is now in Italy, Greece, Bulgaria (not yet an EU Member State) and Slovenia and Turkey.

The EU Commission described the measures being taken as follows:

The measures being applied by Italy are, as for Greece, the establishment of a high risk area (a 3 km protection zone) around each of the outbreaks and a surrounding surveillance zone of 10 km. In the protection zone, poultry must be kept indoors, movement of poultry is banned except directly to the slaughterhouse and the dispatch of meat outside the zone is forbidden except where products have undergone the controls provided for in EU food controls legislation (i.e meat sourced from healthy animals in registered farms, subject to ante and post mortem checks by vets in the slaughterhouse). In both the protection zone and the surveillance zone, on-farm biosecurity measures must be strengthened, hunting of wild birds is banned and disease awareness of poultry owners and their families must be carried out.

But a proposal for a directive on combatting avian flu published in April 2005 does not seem to have been adopted yet.

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France did not immediately comply with the ECJ’s decision in the BSE case we are reading now. The Commission proposed going back to the ECJ to ask it to fine France for non-compliance with the decision but later decided to withdraw its application for a fine to be imposed after France withdrew the ban in 2002. But, while France was busy keeping British beef out, its own cattle were infected with BSE and some reports suggest the French government seriously underestimated how serious the problem was.

More recently a lot of attention has been paid to TSEs (transmissible spongiform encephalopathies) generally: deer and goats and sheep suffere from diseases similar to BSE or even from BSE itself. The UK Government’s specialist committee which focuses spongiform encephalopathy suggests that there is a lot of uncertainty about the public health aspects of BSE.

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We’re beginning to think about issues involving the regulation of food in the EU (this is a very complex area and we won’t have time to learn all the details but Professor Diamond teaches a comparative food law course for anyone who wants to pursue these issues further in future).

The two examples of issues the materials address so far are associated with food borne diseases and the safety of food ingredients.

This week we are also reminded about the controversies over genetically modified food as the US (with Argentina and Canada) has been challenging EU rules on GM food before a WTO dispute tribunal and press reports have announced that the “EU was wrong in preventing the use of new modified varieties of corn, soybeans and cotton between 1998 and 2004 on its market” because the decision was not supported by scientific evidence. The text of the decision does not seem to be publicly available yet. But the idea that a WTO panel has stated that the EU’s 1998 moratorium on GM food, and rules introduced by a number of the Member States independently violated trade rules is interesting on a number of levels.

The EU has challenged Member State rules in the past on the basis that they are not supported by science. The EU is now characterised as acting in a protectionist manner as it has in the past characterised actions of the Member States.

The case also illustrates a contrast (which has long been apparent) between the EU’s precautionary approach to health issues and the US tendency to want to encourage innovation, intervening if it subsequently becomes apparent that there may be health issues.

For many in the EU GM foods involve environmental issues as much as (if not more than) health issues and it is not clear to what extent the Panel focused on these issues. If GM crops are not attractive to insects then birds which feed on insects may find it harder to find food…..

Does it make sense to have trade rules which produce a result whereby Monsanto decides (not intentionally and thoughtfully but as a by-product of product development decsions made for other reasons) how much ecological diversity we have on the planet?

Update: this story suggests that the panel did not get into questions of whether the EU’s rules were substantively justified but rather whether the delays produced by the moratorium were “undue delay” and therefore in breach of the rules.

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As I said last week, tomorrow we will look at the doctrine of direct effect. On Thursday we’ll begin the next packet of materials. Please read up to page 35 for Thursday’s class and compare the two cases.

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The publication of cartoons in a newspaper doesn’t usually lead to international incidents, but you may have noticed that the publication of cartoon representations of the Prophet Muhammad in a Danish newspaper in October last year has resulted in Iran withdrawing diplomats from Denmark and in protests including fire bombing of the Danish Embassy in Tehran. The EU’s Presidency deplored the latest violent actions:

The Presidency of the European Union condemns the wave of attacks and threats against European citizens and property, which has today culminated in attacks against the offices of the European Union and Member States in the Palestinian territories and in the arson attack against the Danish, Swedish and Norwegian embassies in Damascus. Such acts can by no means be legitimised and are utterly unacceptable.
The Presidency of the European Union demands that all authorities concerned take the necessary measures to ensure the safety of European citizens and property.
In this moment of tension, the Presidency of the European Union urgently calls on all concerned to show restraint and to refrain from and prevent further violence.

The issue is presented by many as a conflict between extreme religious views on the one hand and extreme commitments to ideas of free speech on the other. Tariq Ramadan counsels against this polarisation:

We are at a crossroads. The time has come for women and men who reject this dangerous division of people into two worlds to start building bridges based on common values. They must assert the inalienable right to freedom of expression and, at the same time, demand measured exercise of it. We need to promote an open, self-critical approach, to repudiate exclusive truths and narrow-minded, binary visions of the world.
We are in dire need of mutual trust. The crises provoked by these cartoons shows us how, out of “seemingly nothing”, two universes of reference can become deaf to each other and be seduced by defining themselves against each other - with the worst possible consequences. Disasters threaten that extremists on both sides would not fail to use for their own agendas. If people who cherish freedom, who know the importance of mutual respect and are aware of the imperative necessity to establish a constructive and critical debate, if these people are not ready to speak out, to be more committed and visible, then we can expect sad, painful tomorrows. The choice is ours.

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We talked about whether there are reasons for the EU to harmonise family law. And in fact, in terms of what we might think of as core family law, the legislation and proposed legislation focuses on identifying what country’s rules control certain questions and how people can enforce rights they have under one Member State’s law in another Member State. So, there is a Green Paper, published nearly a year ago, on applicable law and jurisdiction in divorce matters; and there is a regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and parental responsibility (which is in force). The tendency is to focus on how to allocate jurisdiction and on mutual recognition (like full faith and credit) rather than on the substantive law. But the jurisdictional issues can be significant if the different Member States have very different approaches to divorce, for example. Here is a graphic example from the Green Paper:

A Finnish/Swedish couple move from Stockholm to Dublin where they are offered interesting jobs. Their marriage deteriorates and they finally decide to divorce. The couple would expect the divorce proceedings to be rather simple and swift, as it would be under Finnish or Swedish law, since they both want to divorce and do not have any children. However, only Irish courts have jurisdiction according to the new Brussels II Regulation and Irish courts apply Irish law (“lex fori”) to divorce proceedings, irrespective of the nationality of the spouses. The only way to ensure the application of Swedish or Finnish divorce law would be if a spouse returned to his or her Member State of origin for at least six months and then applied for divorce in that country. Neither spouse is willing or able to quit his or her job and leave Ireland for six months for this purpose. On the other hand, they want to avoid the application of Irish divorce law, which requires a four year separation period to establish that the marriage has broken down. They are surprised that the conditions for divorce have changed so dramatically, due to their decision to move to another Member State.

This example suggests that the impetus for thinking about family law is in part economic (knowledge of a case like this could act as a disincentive to moving to another Member State for work) but it isn’t really fundamentally economic - the Commission seems to think that people should be able to choose which family law system they feel most closely connected to when they contemplate divorce or at least that the rules should promote legal certainty.

So, I want to know whether the Green Paper is just a step along the way to full harmonisation of divorce law (although the Irish example suggests this may be difficult) or whether the idea of focusing on choice of law and choice of jurisdiction makes more sense than harmonisation in other areas (for example, contract law).

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I’m not sure how widely this event has been publicised but I happened across an announcement on the Law School’s main web page that’s worth flagging for an Amnesty International Florida State Conference here at the Law School on February 25 (the deadline for registering is Feb. 13).

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I’m sending the next set of class materials to the distribution center this afternoon so they should be available by the end of the afternoon today. In this set of materials I’m trying to cover a number of different issues using the organising principle of focusing on food regulation.

1. First, there are two cases arising out of the BSE crisis which illustrate (a) enforcement proceedings (Art. 226) and (b) challenges to acts of the EU institutions (Art. 230).

2. In addition these cases and the brief introduction allow us to begin to think about how EU law works to ensure the free movement of goods through a combination of restrictions on the Member States setting up barriers to free movement (negative integration) and the EU’s harmonised procedures and rules (positive integration).

3. Then there are some materials on the food supplements directive. Again there are free movement of goods issues. There are also nice examples of the EU leislative process and legislation, of a Member State’s implementing regulations, and of the process whereby a trade association challenges the EU’s rules via a challenge to the implementing regulations. This process illustrates a decision by a national court to make a reference under Art. 234, the Advocate General’s opinion (non-binding on the ECJ), and the ECJ’s response to the preliminary reference.

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