This post should be preceded by a boast alert, but hey: a pat on one’s own shoulder does not hurt once in a while. With Dr Leonie Reins I have written EU Environmental Law, which has now been published by Edward Elgar. The blurb is here. Leonie and I have given a concise yet we hope complete overview of this ever-growing part of EU law. We hope it will please the reader!
I have copy /pasted the TOC below.
We are now turning our attention to (inter alia): EU energy law.
Contents: 1. Setting the context
PART I BASICS/FRAMEWORK OF EUROPEAN ENVIRONMENTAL LAW 2. Principles of European Environmental Law 3. Environmental law making in the European Union 4: Implementation and enforcement Public Participatory Rights 6. Additional tools in implementing European Environmental Law 7. Environmental and Strategic Impact Assessment 8. Environmental Liability and Environmental Crime 9. State Aid and Competition Law
PART II SUBSTANTIVE LEGISLATION 10. Biodiversity and Nature Conservation 11. Water protection legislation and policy 12. Noise pollution legislation and policy 13. Air pollution legislation and policy 14. Climate Change legislation and policy 15. Waste legislation and policy 16. Chemicals legislation and policy 17. Trade and the Environment
Many thanks Michael Verhaeghe (whom I have the pleasure with jointly to be representing a client) for alerting me to Lodi Trading in which the Belgian Supreme Court applied (and distinguished) Kolassa. Lodi Trading is registered in The Netherlands and seemingly had been duped into transferring funds to a gang of fraudsters. As always, the judgment is very very scant on factual reference, and I have not been able to find the Court of Appeals’ judgement: if anyone can: Court of Appeal Gent, 8 December 2015.
Like the CJEU itself did clearly in Universal Music, the Hof van Cassatie distinguished Kolassa (although it does not refer to Universal Music in this part of the judgment) by insisting there be circumstances specific to the case, over and above the simple presence of a bank account, which point to the damage occurring in that State.
In Universal Music the CJEU had emphasised the need for case-specific facts for bank accounts to be a relevant factor in determining jurisdiction, by holding that ‘it is only where the other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place.’ (emphasis added).
What seems (but again: see the joint caveat of the Supreme Court’s judgment being scant and the Court of Appeal’s judgment being untraceable) to be specific to this case is that the Court of Appeal had held in favour of the location of the bank account of recipient of the funds being locus damni, given that ‘internal law’ (by which I take it reference is made to Belgian, not Dutch law) determines that the time of payment is determined by the moment of accreditation of the funds to the beneficiary’s account: not (the alternative reading; but again I am assuming for the judgment’s 10 brief paras do invite speculation) the time of the funds leaving the account holder’s account.
It could well be therefore that the Supreme Court is rebuking the Court of Appeal for having Belgian law enter the equation, given the need for autonomous interpretation of European civil procedure. But I am not entirely sure.
(Handbook of) European private international law, second ed. 2016, Chapter 2, Headings 126.96.36.199, 188.8.131.52.7
The president and Mrs Trump keep on exercising the courts. In Melania Trump v Webster Tarpley and Mail Media, Inc., the circuit court for Montgomery County, Maryland, accepted jurisdiction against the former, who is resident in Maryland, but rejected it against the latter, who is resident at New York. (It is registered there and also has its head office there). The second defendant is most likely the owner of the website dailymail.com and dailymail.co.uk. Whether that was really the case was left in the middle though for the Daily Mail group (whom Wikipedia today confirmed as no longer accepting as a source of facts), wanted the judge to rule on the merits of jurisdiction rather than on a possibly wrongly identified defendant.
Alleged libel concerns reports published by Mr Tarpley, a blogger, and the Daily Mail, relating to remarks, later retracted by both defendants, on alleged past racy activities of Mrs Trump. At issue was whether the courts at Maryland have personal jurisdiction over Mail Media. Mrs Trump’s legal team suggest publication of defamatory material in a publication with significant circulation in the forum state, suffices for jurisdiction. This, they argue, is compounded by targeted interactivity between the Daily Mail and readers in Maryland. Mail Media suggest there is no direct connection between Maryland and the Mail Article at issue and that even if the court were to accept such connection, jurisdiction should be refused on the basis of forum non conveniens.
The court accepted the first defence and did not therefore entertain the second. P.7: operating a website, even one that is popular and makes money from advertising, is not ‘purposeful availment’ under precedent rule: the publication has to intentionally enter the forum market: the MAil’s influence in the US is on a national (federal) basis.
Note to class: compare the court’s approach with that of European courts under the Brussels I Recast Regulation.
Mrs Trump has now refiled in New York, where both her and second defendant are resident.
I have written this blog post with in my mind a rather bibliographical purpose: having collated all sources I would rather like finding them all back again. In  EWHC 31 (Comm) Micula and others v Romania and the European Commission, the High Court effectively halted the enforcement of an ICSID award, pending a Court of Justice Ruling (in Case T-694/15) on the legality of an EC finding of State Aid. The Award arose out of the Romania-Sweden BIT and as such got caught up in the maelstrom (this could have been an intended pun however etymologically the word is Dutch, not Swedish) of discussions surrounding EU competencies in intra-EU Bilateral Investment Treaties (for background on that issue see here).
Not quite following the rabbit down the hole however nevertheless quite a wonderland of colliding legal regimes.
Thank you Jonathan Cocker for flagging Ontario’s stakeholder consultation on renewable fuel standards, aka biofuels. Current thinking, outlined in the discussion paper, is to make the standards ‘performance based’: ie without pushing one or rather additive and exclusively focus on achieved (documented) reduction of greenhouse gas emissions.
Biofuels are known to create international trade tension. Argentina and the EU are still formally in consultation over the EU’s approach. Various WTO dispute settlement concerns anti-dumping duties on biofuels. Finally one or two elements of WTO dispute settlement on support for renewable energy touch upon fuel standards.
With all that in mind one particular element of the Ontario regime caught my attention: the intention to regulate GHG emissions ‘well to wheel’: ie ‘to assess emissions performance across the fuel’s full well-to-wheel lifecycle, from extraction to processing, distribution and end-use combustion.’(p.6). Canada does that already for diesel, with its 2014 greener diesel Regulation, employing what is known as the ‘GHGenius’ model.
What I have not been able to gauge from my admittedly limited research into that model: does it at all and if so how, apply to particularly extraction outside of Canada indeed outside Ontario? For the EU, much of the biofuel production (let alone biofuel imports) at some point or another involves extra-EU elements. How does a well to wheel method in such case work under WTO rules?
I am happy to post here the link to the statement which I signed together with 62 colleagues from various walks of (trade) life, on the EU’s modus operandi for the signature of trade agreements. Post-CETA, we strongly believe that current procedures, when properly implemented, ensure democratic legitimacy for the EU’s international agreements at multiple levels. The statement is available in English, French and German: EU noblesse oblige.