Fuss rather than fizz. New York court’s reversal of ‘soda bucket ban’ only the first shot.

The New York State Supreme Court, in what I understand to be a decision of the interlocutory type and subject to appeal, has held as unconstitutional (vis-a-vis the NY Constitution, that is) the NY City Board of Health’s decision to limit the size of sugary soft drinks or ‘sodas’ sold in restaurants, movie theaters, stadiums and arenas at 16 ounces a cup. That’s 473 millilitres, slightly less than half a litre (500 millilitres or 50 cl) or roughly 100 ml less than what in the UK would be a pint (568 ml).  473 millilitres therefore would be the new maximum size – I have no experience with the current standard size however I understand that by default it must be much bigger than what is now being proposed. I remember some years back reading about a lawsuit in the US against Chrysler, whose new Voyager people carrier had cup holders which could not hold a one litre soda cup (one assumes this was a suit of the rather desperate type however one never knows).

Justice Milton Tingling essentially held that the Board’s decision trespasses on the powers of the legislative body, the City Council. Separation of powers, therefore, or Agency /delegation of powers, has decided this first shot in the soda war. Justice Tingling mentioned specifically that the judgment is not about the obesity epidemic, if any, and /or the contribution of soda drinks to same (he does remark that infringement of the separation of powers ‘(…) has the potential to be more troubling than sugar sweetened beverages’).

How far a State should go in regulating the unhealthy habits of its citisens is very much of the essence in this case – as is the importance for New York to somehow establish the link between practices targeted, and unwanted consequences on people’s health, the national health service, and the public purse. In the EU, this would create interesting musing under the precautionary principle (see also EFTA’s widely criticised Philip Morris judgment, which I have previously referred to). Appeal has already been announced.

Geert.

Even hazardous wastes can be returned as products after recovery – Kokott AG in Lapin elinkeino. REACH comes to the rescue of Waste.

Kokott AG opined end of December in Lapin elinkeino, Case C-358/11 (at the time of writing this post, the English version of the Opinion was not yet available however plenty of other language versions are). I have included the referred questions below. The case involves the use, in accordance with Finnish law, of wood, formerly in use as telephone posts, as underlay and duckboards for a hiking trail in a nature reserve.For that purpose, it is CCA-treated (chromated copper arsenic: a mixture of chromium, copper and arsenic).

The REACH Regulation exempts waste: ‘To ensure workability and to maintain the incentives for waste recycling and recovery,
wastes should not be regarded as substances, preparations or articles within the meaning of this Regulation.’ At the time of adoption of the Regulation, this  led to the rather interesting development of clients seeking arguments to have their products considered waste (until then not a preferred option), for compliance under the Waste regulations was /is perceived as less onerous than REACH.

The Waste framework Directive, in the revised 2008 version, includes a specific regime in Article 6 for end-of-waste criteria. It is worth citing it here in full:

1. Certain specified waste shall cease to be waste within the meaning of point (1) of Article 3 when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with the following conditions:

(a) the substance or object is commonly used for specific purposes;

(b) a market or demand exists for such a substance or object;

(c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and

(d) the use of the substance or object will not lead to overall adverse environmental or human health impacts.

The criteria shall include limit values for pollutants where necessary and shall take into account any possible adverse environmental effects of the substance or object.

2. The measures designed to amend non-essential elements of this Directive by supplementing it relating to the adoption of the criteria set out in paragraph 1 and specifying the type of waste to which such criteria shall apply shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 39(2). End-of-waste specific criteria should be considered, among others, at least for aggregates, paper, glass, metal, tyres and textiles.

3. Waste which ceases to be waste in accordance with paragraphs 1 and 2, shall also cease to be waste for the purpose of the recovery and recycling targets set out in Directives 94/62/EC, 2000/53/EC, 2002/96/EC and 2006/66/EC and other relevant Community legislation when the recycling or recovery requirements of that legislation are satisfied.

4. Where criteria have not been set at Community level under the procedure set out in paragraphs 1 and 2, Member States may decide case by case whether certain waste has ceased to be waste taking into account the applicable case law. They shall notify the Commission of such decisions in accordance with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services [24] where so required by that Directive.

Intriguingly, Article 6(4) [Member States deciding end-of-waste status on a case-by-case basis in the absence of Union harmonisation], does not refer to the four criteria which Article 6(1) puts forward as binding in the event of Union harmonisation on same. In contrast with the Commission, the AG suggests that this difference has to be taken at face value. The only benchmark for the Member States is the case-law of the ECJ on the end-of-waste status and on the very definition of waste. Once a Member States decides on that basis that even dangerous waste no longer is waste (or indeed never was waste), it can allow the use of such substance under application of relevant product legislation (here: the rules on CCA-treated wood under REACH).

Importantly, therefore, the AG suggests that dangerous waste can be returned to use as products, in the case at issue under discipline of REACH, in accordance with national law. Member States need not wait for Union criteria to be developed. As suggested therefore in excellent analysis by maitre Enckell, REACH comes to the rescue of the Member States wishing to encourage the return of even hazardous wastes to product status (lest of course the ECJ will see this differently). In the alternative, product use explicitly allowed under REACH for virgin material, would not so be allowed for recovered material. That would not be very sustainable.

Geert.

Questions referred

Questions referred
1    Is it possible to deduce directly from the fact that waste is classified as dangerous waste that the use of such a substance or object leads to overall adverse environmental or human health impacts within the meaning of Article 6(1)(d) of Waste Directive 2008/98/EC? May hazardous waste also cease to be waste if it fulfils the requirements laid down in Article 6(1) of Waste Directive 2008/98/EC?
2.    In interpreting the concept of waste and, in particular, assessing the obligation to dispose of a substance or an object, is it relevant that the re-use of the object which is the subject of the assessment is authorised under certain conditions by Annex XVII as referred to in Article 67 of the REACH Regulation? If that is the case, what weight is to be given to that fact?
3.    Has Article 67 of the REACH Regulation harmonised the requirements concerning the manufacture, placing on the market or use within the meaning of Article 128(2) of that regulation so that the use of the preparations or objects mentioned in Annex XVII cannot be prevented by national rules on environmental protection unless those restrictions have been published in the inventory compiled by the Commission, as provided for in Article 67(3) of the REACH Regulation?
4.    Is the list in Point 19(4)(b) in Annex XVII to the REACH Regulation of the uses of CCA-treated wood to be interpreted as meaning that that inventory exhaustively lists all the possible uses?
5.    Can the use of the wood at issue as underlay and duckboards for a hiking trail be treated in the same way as the uses listed in the inventory referred to in question 4 above, so that the use in question may be permitted on the basis of Point 19(4)(b) of Annex XVII to the REACH Regulation if the other conditions are met?
6.    Which factors are to be taken into account in order to assess whether repeated skin contact within the meaning of Point 19(4)(d) of Annex XVII to the REACH Regulation is possible?
7.    Does the word ‘possible’ in the point mentioned in question 6 above mean that repeated skin contact is theoretically possible or that repeated skin contact is actually possible to some extent?

Current set-up for Common European Sales Law (justifiably) rejected by the UK

The UK Government, a short while ago [perusal was in my in-tray for a few weeks] concluded its consultation on the need for a Common European Sales Law, with a rejection. The main lines of respondents’ arguments, were:

‘Evidence of need: Respondents did not believe that sufficient need for the proposal had been demonstrated. They were unconvinced that contract law presented a significant enough barrier to warrant such a complex and wide ranging proposal.

I agree.

‘Legal uncertainty: Respondents believed that the content of CESL would lead to significant legal uncertainty. There was felt to be a fundamental problem in creating a distinct law for the sale and supply of goods and services, separate from other contractual procedures. Respondents argued this would only lead to uncertainty and incoherence. Jurisprudence in the area would also take years and perhaps decades to establish, creating an additional burden on the UK’s judicial system and on the Court of Justice of the European Union. This would lead to significant delays and expense in the resolution of disputes and interim uncertainty regarding the interpretation of the law.’

I agree. Current regulatory competition, including relevant case-law by national and EU courts, does the job the CESL wishes to address just fine.

‘Confusion: Respondents believed that the introduction of a second regime of contract law would create confusion for both consumers and businesses. They argued that a new law was neither necessary nor practical and specifically noted the length and complexity of the CESL proposal. Many respondents believed that the implementation of further legislation in this area would make it harder, not easier, for businesses to agree contracts and for consumers to know their rights with certainty when purchasing across borders.’

I agree. The CESL addresses alleged uncertainty by adding a layer of complexity.

‘Cost.’ (of disclosure, training, litigation). Here too I agree.

As prof MacQueen et al note on their blog entry on the topic, the UK’s rejection focusses very much on the draft CESL as it stands – it leaves quite a few doors open to either improvements of the draft, or alternative ways of achieving better results.

As often, one of the EU’s most recalcitrant Member States subjects its proposed laws to the most careful scrutiny.

Geert.

ECJ confirms AG’s Opinion in Otis: EC can sue for damages itself after having acted as antitrust enforcer

The ECJ has today, 6 November 2012, confirmed Cruz Villalón  AG’s  Opinion in Case C-199/11, European Union v Otis et al. The EC’s role in antitrust enforcement does not rule out future action in damages by the same institution, also on behalf of others, provided safeguards are met. For my earlier post on the AG’s Opinion, see here.

Geert.

 

 

The buck (or copper tube) does not stop here. Forum shopping and European Competition Law in  KME Yorkshire v Toshiba Carrier.

A neat reminder of the relevance of follow-up litigation and anchor defendants in the EU competition law sector. In [2012] EWCA Civ 1190 KME Yorkshire et al v Toshiba Carrier UK at al [2012] EWCA Civ 1190 the Court of Appeal has confirmed that a connected undertaking that had implemented, but not been party to, an anti-competitive agreement, can nevertheless be in breach of Article 101 TFEU (the foundation Article for EU competition law) and therefore ground jurisdiction against all other defendants who had been originally named in the Commission decision fining the companies concerned.

Toshiba et al had been buying large quantities of copper tubes from the group of companies which had been fined earlier by the European Commission (for follow-up litigation at the ECJ see here).

Article 6 of the Jurisdiction Regulation on multipartite litigation and consolidated claims, includes four cases which grant jurisdiction to a court which does not originally have it against some of the defendants and which are effectively joined to its jurisdiction against another. Are all inserted because of procedural expediency and because of the need to avoid irreconcilable judgments. However they all do harbour scope for abuse hence the ECJ has interpreted each of them fairly strictly.

Procedural efficiency and forum shopping often tempts plaintiffs into identifying an ‘anchor defendant’ in one jurisdiction, subsequently to employ Article 6 (or similar provisions in national law for subjects outside of the JR) to engage other parties in the same jurisdiction. The KME decision at the Court of Appeal confirms the kosherness of forum shopping and anchor defendants in cases such as these.

Geert.

Review of Insolvency Regulation part of EC Single Market Act II Proposal

The European Commission’s second round (list of intended) of proposals to shake up the Single Market, ‘Single Market Act II’, was presented yesterday, 3 October.  The Commission intends inter alia to shake-up the Insolvency Regulation.

There is one very important limit to the Insolvency Regulation in its current form: it does not harmonise insolvency law. There are substantial differences in the general approach to insolvency proceedings: what level of protection is given to ‘weaker’ creditors, such as employees; whether and how there is State intervention in the proceedings; whether courts play a central role or leave creditors (or certain categories of creditors) in the driving seat; etc. These are not at all addressed by the Regulation.

The Commission now announces that it will table a proposal with two angles:

firstly, what one could call a procedural angle (firmly within the Conflicts area, especially in terms of recognition and enforcement), which would continue the current focus of not harmonising insolvency law (although the last element of these comes close): SIMA II on this angle:

‘We thus need to establish conditions for the EU wide recognition of national insolvency and debt-discharge schemes, which enable financially distressed enterprises to become again competitive participants in the economy. We need to ensure simple and efficient insolvency proceedings, whenever there are assets or debts in several Member States. Rules are needed for the insolvency of groups of companies that maximise their chances of survival. To this end, the  Commission will table a legislative proposal modernising the European Insolvency Regulation.’

secondly, a more substantial angle which would actually aim to create a (step-up to a) European insolvency law: SIMA II on this angle:

‘However, we need to go further. At present, there is in many Member States little tolerance for failure and current rules do not allow honest innovators to fail ‘quickly and cheaply’. We need to set up the route towards measures and incentives for Member States to take away the stigma of failure associated with insolvency and to reduce overly long debt discharge periods. We also need to consider how the efficiency of national insolvency laws can be further improved with a view to creating a level playing field for companies, entrepreneurs and private persons within the internal market. To this end, the Commission will table a Communication together with the revision of the European Insolvency Regulation.’

The Commission effectively already throws in the towel on trying to convince Member States that some kind of harmonised Insolvency laws (especally with a view to installing a ‘right to fail’) ought to be agreed: the second leg of the exercise, as the above extract indicates, will merely consist of a Communication.

The announcement of SIMA II betrays two fundamental options:

Firstly, perhaps understandably, the list of 12 priorities has been compiled on the basis of what the EC thinks is realistically passable before the end of the current Parliament mandate (spring 2014). That inevitably means that some key areas have not been included, one assumes because the EC does not think it realistic to find agreement between Commission, Council and Parliament by 2014.

Further, disappointingly, deregulation does not feature at all in SIMA II. That is most definitely a missed opportunity. There are most certainly areas where reduced rather than increased Union Regulation, in conjunction with European Court of Justice case-law on primary EU law, would do a better job at increasing the Single Market.

Geert.

Mirror, mirror. Cartesio obiter clarified in Vale. The Court of Justice further completes the corporate migration jigsaw.

Postscript 22 December 2016. Corporate migration also often triggers issues of ‘exit taxation’. Core reference is C-371/10 National Grid Indus (other than Daily Mail of course; referred to below). Grid Indus was referred to extensively by Kokott AG yesterday (21 December) in Case C-646/15 Panayi. Do trust enjoy the protection of the four freedoms even if they do not have distinct legal personality? (Answer Yes). What is Member States’ freedom of manouevre for exit taxation. (Answer in principle untouched. But since such taxation impacts upon freedom of establishment, tax treatment needs to be proportionate).

 

In family law, the status and capacity of a natural person is largely determined by a person’s nationality, which generally stays with it for life, or, particularly in common law countries, by a person’s domicile, which is less fixed but nevertheless assumes strong links with a particularly State. The corporate equivalent of nationality and domicile is the lex societatis. It is the ‘personal law’ or corporate identity of companies [Hartley, T.C., International Commercial Litigation, Cambridge, CUP, 2009, 506.]. It often determines ‘whether the company had been validly created; what its constitution is; what the powers are of its organs, officers and shareholders; whether it has been merged with another company; and whether it has been dissolved.’ [Ibid] These in others words are the corporate equivalents of life and death, capacity, marriage, divorce, adoption etc.

Just as individual may want to change nationality, or acquire another, and face the consequences of their choice under States’ nationality laws, so, too, do companies want to migrate for all sorts of reasons: shareholder structures, fiscal, directors’ liability, etc. They, too, face consequences: the original State (the ‘home’ State) may not want to let go, and put in place al sorts of hurdles for the company to migrate. The new State (the ‘host’ State) may equally be unimpressed with and unwelcoming to the newcomers’ arrival. States’ willingness or not to welcome new arrivals and to say goodbye to those wishing to leave, loosely translates into two main models: the real seat theory, and the incorporation theory.

In the EU, these issues play a particular role as they come within the purview of the freedom of establishment, laid down in Article 49 of the Treaty on the Functioning of the EU (‘TFEU’):

Article 49

(ex Article 43 TEC)

Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.

Article 50 TFEU foresees harmonisation to accompany the principal freedom. However the Union legislator (and the Community legislator before it) has not got all that far.

It has therefore, largely been the Court of Justice which has had to establish how far Member States’ freedom of manoeuvre reaches in obstructing corporate migration. In Daily Mail, the Court gave a lot of leeway to Member States on the outbound corporate migration side: the home Member States have a lot of freedom in determining the consequences of corporate migration. By contrast, in Centros, Ǜberseering, and Inspire Art, the Court was much stricter for inbound corporate migration: the host Member State has to have very good, ad hoc reasons for obstructing  freedom of establishment (and services) by insisting on incorporation and /or refusing commercial activities of affiliates, if all the company concerned wants to do, is to do business in the host Member State (rather than actually incorporating). All these cases are referenced in Jääskinen AG‘s Opinion.

In Cartesio, the Court stuck to its perceived dichotomy between in- and outbound migration, despite a plea by Maduro AG to approximate the two. The court then added an obiter in para 112:

‘In fact, in that latter case, the power referred to in paragraph 110 above, far from implying that national legislation on the incorporation and winding-up of companies enjoys any form of immunity from the rules of the EC Treaty on freedom of establishment, cannot, in particular, justify the Member State of incorporation, by requiring the winding-up or liquidation of the company, in preventing that company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so.’

[the English version of the text in fact is not the clearest]

That obiter got many excited, and confused: do the final words of para 112 imply that the host Member State can choose whether to accept such re-incorporation, or rather, does Article 49 TFEU imply that the host Member State has no choice but to accept such re-incorporation?

In Cartesio, a company incorporated in Hungary wanted to change its operational headquarters to Italy but keep Hungarian incorporation. Hungarian corporate law does not allow for this: a company can keep its Hungarian incorporation but only if it moves headquarters within Hungary. Otherwise it has to dissolve in Hungary and incorporate elsewhere.

The case decided yesterday, Case C-378/10 Vale, is a mirror image (see also Stefan Rammeloo’s bullet-point overview of issues here): an Italian company wants to dissolve in Italy and re-incorporate in Hungary, and it wishes its Italian predecessor to be recognised as its legal predecessor, meaning all rights and obligations of the old company transfer to the new. A procedure which is perfectly possible for Hungarian companies, within Hungary: in particular, by changing company form. Vale’s application for registration was rejected. The obiter in Cartesio led to speculation whether the host Member State is under a duty to co-operate with such conversion (as opposed to Cartesio, which sought to establish the limits to obstruction by the home Member State).

The Court in my view /in my reading of the judgment took a perfectly logical approach to the obiter: ‘to the extent that it is permitted under that law to do so‘ refers to the existence of a national conversion procedure. If nationally incorporated companies may convert and transfer all rights and obligations to the new company, any restrictions on foreign companies employing this mechanism come within the reach of Article 49 TFEU.

There may be reasons for the host Member State to restrict this possibility in specific instances (for reasons of e.g. protection of the interests of creditors, minority shareholders and employees, the preservation of the effectiveness of fiscal supervision and the fairness of commercial transactions: see para 39 of Vale), however none of these apply here: Hungarian law precludes, in a general manner, cross‑border conversions, with the result that it prevents such operations from being carried out even if the interests mentioned in paragraph 39 above are not threatened in any event (para 40).

The host Member State must therefore open the possibility of conversion to foreign registered companies, (only) if it has such conversion possibility in its own corporate laws. Any conditions imposed by national law (documentation, proof of actual economic continuity of operations etc) may also be imposed on these foreign companies, provided this is done in a transparent, non-discriminatory fashion, and in a way which does not jeopardise the actual freedom of establishment.

It is interesting to note that the Court recycled (as it did in Cartesio), the very core Daily Mail quote which explains its hesitation effectively to harmonise corporate law itself, through too drastic an interpretation of Article 49 TFEU:

‘companies are creatures of national law and exist only by virtue of the national legislation which determines their incorporation and functioning‘(Vale, para 27).

No doubt many corporate law implications escape me (see, on the AG’s Opinion, rather excellently Thomas Biermeyer and Thore Holtrichter in the Columbia Journal of European Law here) and will lead to further cases at the Court.

 Geert.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 7, Heading 7.6.

Use of Fair Trade labels in procurement decisions – Court of Justice of the EU in Max Havelaar

The Court of Justice of the EU has further completed its views on the use of criteria linked to sustainable development. These are criteria which do not simply refer to environmental characteristics of the product itself. Rather, they convey a message as to the overall ‘process and production methods’, known in jargon as ‘PPMs’, of a particular product or service.

In Max Havelaar, Case C-368/10, the Court had to decide on the use of specific labels in decisions awarding government purchases (‘procurement’) to a particular supplier.The province of North Holland had

–        inserted in the technical specifications a condition requiring the Max Havelaar and EKO labels or in any event labels based on similar or the same criteria;

–        included, for appraising the ability of operators, criteria and evidence concerning sustainable purchasing and socially responsible business, and

–        included, when formulating award criteria, a reference to the Max Havelaar and/or EKO labels, or in any event labels based on the same criteria.

The judgment is quite complex for those unfamiliar with (EU) procurement law In particular, the Court distinguishes in the exact room for manoeuvre between various stages of a procurement decision. Leaving detailed breakdown aside (reference is made to the judgment), the Court’s finding is basically that authorities must make use of descriptive conditions for such criteria, rather than solely referring to specific labels. However they may identify certain labels as leading to a presumption of these criteria having been met, provided of course they allow other proof to be submitted.

For WTO lawyers, judgments like these are not irrelevant. Arguably, adoption of private labels in procurement decisions, may well bring these labels within WTO, in particular, TBT (Agreement on Technical Barriers to Trade), discipline.

Geert.

European Commission’s role in antitrust enforcement does not rule out future action in damages – Cruz Villalón AG in Otis

Cruz Villalón  AG’s  Opinion in Case C-199/11, European Union v Otis et al, suggests that the EC’s role in antitrust enforcement does not rule out future action in damages by the same institution, also on behalf of others, provided safeguards are met.

The impact of the case should probably not be overestimated, as it is one of those ‘peculiar’ cases: the European Commission (‘EC’), representing the EU,  is suing Otis et al for damages in a Brussels Court (the seat of the EU), damages sustained following cartel behaviour in the elevator market, which the Commission itself had previously found to be illegal under EU antitrust rules. Defendants argued in Brussels (subsequently referred to the Court in Luxembourg) that the EC’s prior involvement meant that it could not be both judge and party in the ‘same’ case. Reference was made in particular to the ‘equality of arms’ principle and the principle of right to a fair trial, under the Charter of Fundamental Rights, and the European Convention on Human Rights – ECHR.

The AG’s view, perhaps not surprisingly, is that the Commission’s decision in the anti-trust case is of course subject to judicial review with the European Courts (and indeed it is being appealed), hence safeguarding the companies’ right to fair trial etc.: the Belgian court may be well advised (although not necessarily obliged) to halt proceedings until the Court of Justice has ruled on that appeal. He also suggest that no data obtained by the EC in their competition investigation, and which have not been openly communicated to the companies, are being relied upon in the damages action (consequently arguably also suggesting a bar on such use): both parties are hence equally armed.

Geert.

 

Postscript: the ECJ in November 2012 confirmed the Opinion. See here.

Questions referred:

Questions referred
(a) The Treaty states in Article 282, now Article [335], that the European Union is to be represented by the Commission; – Article 335 of the Treaty on the Functioning of the European Union, on the one hand, and Articles 103 and 104 of the Financial Regulation, on the other, state that, in administrative matters relating to their operation, the institutions concerned are to represent the European Union, with the possible result that [it] is the institutions, whether or not exclusively, … which may be parties to legal proceedings; – there is no doubt that receipt by contractors, etc., of payment … of inflated prices as a result of collusive practices comes within the concept of fraud; – in Belgian national law there is the principle of ‘Lex specialis generalibus derogat‘; – to the extent [to which] that principle of law also finds acceptance in European law, is it then not the case that the initiative for bringing the claims (except where the Commission itself was the contracting authority) was vested in the institutions concerned?
(b) (Subsidiary question) Ought the Commission not at least to have been conferred with authorisation by the institutions to represent them for the purpose of safeguarding their legal rights?
(a) Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human [Rights] guarantee every person’s right to a fair trial as well as the related principle that no one can be the judge in his or her own case; – is it reconcilable with that principle if the Commission, in an initial phase, acts as the competition authority and penalises the conduct complained of – namely, the formation of a cartel – as a breach of Article 81, now Article 101, of the Treaty after it has itself conducted the investigation in that regard, and subsequently, in a second phase, prepares the proceedings for seeking compensation before the national court and takes the decision to bring those proceedings, while the same Member of the Commission is responsible for both matters, which are connected, a fortiori as the national court seised of the matter cannot depart from the decision imposing penalties?
(b) (Subsidiary question) If the answer to Question 2(a) is in the [negative], (there is irreconcilability), how then must the victim (the Commission and/or the institutions and/or the European Union) of an unlawful act (the formation of the cartel) assert its entitlement to compensation under European law, which is likewise a fundamental right …?

Lies, Damn Lies and Statistics. On the Boundaries of European Private International Law and the European Ius Commune

A bit of a heavy-handed title however I am often reminded of this maxim, credited (perhaps incorrectly) to Benjamin Disraeli KG. Over at SSRN I refer to it in discussing the statistical merits of the proposed Common European Sales Law. Over and above the (lack of) justification for the proposal, its relationship with European Private International Law is very unclear. The European Commission marches on with its harmonisation of European conflicts law however I for one would argue that with the proposed CESL it may have hit the proverbial wall.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2002866

Geert.

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