Archive for category Trade law

Ship-generated waste finally at the CJEU: Saugmandsgaard ØE in MSC Flaminia

I fear I do not have the time or opportunity for the moment fully to analyse Saugmandsgaard ØE’s Opinion at the end of January in C-689/17 MSC Flaminia (no EN version available) – hence this post is a flag more than a review. The second Opinion of the AG in the same month (see C-634/16 ReFood) on the waste shipments Regulation.

Readers beware: there are two distinct exemptions for ships-related waste in the waste shipments Regulation: are exempt:

the offloading to shore of waste, including waste water and residues, generated by the normal operation of ships and offshore platforms, provided that such waste is subject to the requirements of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (Marpol 73/78), or other binding international instruments; and

waste generated on board vehicles, trains, aeroplanes and ships, until such waste is offloaded in order to be recovered or disposed of.

In the case at issue: does the latter cover residues from damage to a ship at sea in the form of scrap metal and fire extinguishing water mixed with sludge and cargo residues on board the ship?

Geert.

Handbook of EU Waste Law, 2nd ed. 2015, Oxford, OUP, Chapter 3, 3.27 ff.

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Beer classification at the CJEU.

Case C-195/18 B.S. v Prokatura et al held mid-March, is great for the week-end. Serious stuff (excise duties and customs classification), but with a fun twist: does beer under excise duties and customs regulation require the beverage to be made with malt as an ingredient, or does it also include mixtures of beer with non-alcoholic beverages, as long as it has fermented?  Put differently, may an alcoholic product obtained by fermentation of a wort produced from, inter alia, glucose syrup (yikes! yikes! and yikes again) and a small proportion of malt may be classified as ‘beer made from malt’?

The CJEU touches upon important issues: linguistic interpretation, WCO rules, etc. and finally decides that such a product can come under the ‘beer’ heading only on condition that its objective characteristics and properties correspond to those of beer (adding glucose syrup is not prohibited, other than of course under the only proper standard in this regard which is the Rheinheitsgebot (as amended)).

In this regard, the court holds, account must be taken more particularly of the organoleptic (meaning ‘involving the use of the sense organs’) characteristics of the product in question, which is an exercise the referring court must undertake. No tasting sessions at Kirchberg therefore.

Have a good week-end.

Geert.

 

 

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Unstunned slaughter. Belgian ban goes up to the CJEU for final (?) test on compatibiliy with freedom of religious expression.

Update 29 April 2019 I bumped into the amicus brief of the Becket Fund for Religious Liberty, in the New Zealand case which raised similar issues, here.

I have of course posted regularly on the issues of unstunned slaughter, freedom of religious expression and animal welfare (search tag ‘shechita’ should pull out the relevant postings). The Belgian Constitutional court, to the expectations I assume of counsel in the case, yesterday referred to the CJEU for preliminary reference (cases 52 and 53/2019).

The subject of the litigation is the Flemish decree banning unstunned slaughter outright (for standing reasons the similar Walloon regime is no longer sub judice). The Belgian court requests the CJEU to clarify its judgment in C-426/16, on which I reported here,

Q1: does Regulation 1099/2009 allow Member States to introduce an outright ban; Q2 in the affirmative, is that compatible with the Charter’s right to religious expression; Q3 in the event of an affirmative answer to Q1: the elephant in the Regulation’s room which I flagged years back: is it not discriminatory to allow Member States to restrict religious slaughter, while simply exempting hunting, fishing and ‘sporting and cultural events’ from the Regulation altogether.

Readers will know my answer to these questions.

Geert.

 

 

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Unstunned slaughter and organic labelling. CJEU gets it wrong on Shechita (kosjer) and zabihah (halal).

“Laws are like sausages, it is better not to see them being made” is a quote widely attributed to German statesman Otto von Bismarck. It is not a wise perception. If, like laws,  we want sausages, then it is paramount we see how they are made, starting from the rearing of the animal, via the transport to and processing in abattoirs, through to food processing.

In Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs the Court held that the particular methods of slaughter prescribed by religious rites that are carried out without pre-stunning and that are permitted by Article 4(4) of Regulation No 1099/2009 (on which more here) are not tantamount, in terms of ensuring a high level of animal welfare at the time of killing, to slaughter with pre-stunning which is, in principle, required by Article 4(1) of that regulation. No organic label under Council Regulation 834/2007 and Commission implementing Regulation 889/2008 may therefore be attached to said meat.

The AG had opined the matter is outside the scope of harmonisation of the organic labelling rules. The CJEU however essentially employs Regulation 1099/2009 as a conjoined piece of law and holds that organic labelling must not be assigned to meat originating from animals unstunned prior to slaughter.

The Court is wrong.

At 41 the Court itself acknowledges that ‘no provision of Regulation No 834/2007 or Regulation No 889/2008 expressly defines the method or methods for the slaughtering of animals that are most appropriate to minimise animal suffering and, consequently, to give concrete expression to the objective of ensuring a high level of animal welfare’.

At 47, the Court refers to Wahl AG’s statement in para 43 of his opinion, suggesting the AG ‘ stated, in essence, in point 43 of his Opinion, scientific studies have shown that pre-stunning is the technique that compromises animal welfare the least at the time of killing.’

What the AG actually said is ‘In the first place, it seems to me to be accepted that, while every killing is problematic from the viewpoint of animal welfare, the use of pre-stunning methods when animals are slaughtered may, at least in theory, and as a considerable number of scientific studies show, [FN omitted, GAVC] help to minimise that suffering when those methods are used in the proper conditions. that unstunned slaughter, properly carried out, meets with the ethos of organic farming.’ (emphasis added).

The AG in footnote refers to 2 studies in particular (he suggests there are more). Other studies show the exact opposite. Yet the wider relevance of what he opined lies in the ‘slaughter in the books’ admission. ‘In theory at least’ a perfectly carried out pre-slaughter stun minimises pain. That is very much the same with a perfectly carried out shechita or zabihah incision, particularly where it is carried out with the religiously-inspired stewardship ethos in mind.

In practice, pre-stunning goes horribly wrong in a considerable amount of cases for small and large animals alike. I am not the only one to have witnessed that. And as frequently occurring footage of abattoirs shows, there is little respect for animal welfare in commercial abattoirs, regardless of an eventual stun or not.

Of wider relevance in my view therefore is the problematic enforcement by certification bodies of generally formulated standards  – admittedly not an issue that may be solved by a court case.

Consider Wahl AG’s point made at 45 of his Opinion: ‘the certification ‘halal’ says very little about the slaughtering method actually employed.’ That is exactly the same for pre-stunning. The EU but more particularly its Member States and regions (which given subsidiarity ought to have a big say in this) will not achieve animal welfare if they do not properly address the wider relationship between food professional and animal, between upscale agro-industry and mass meat production.

Finally and evidently, this case is of no consequence to the acceptability of unstunned slaughter from the point of view of expression of freedom of religion.

Geert.

 

 

 

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Request for consultations under the Trade and Sustainable Devlopment chapter of the EU-Korea FTA.

Update 10 April 2019 see USTR for their report on having successfully resolved a timber management issue under the US /Peru FTA.

Update 19 March 2019 see Quentin Decleve here for the US following suit, related to rule of law /due process/ hearing rights issues before the Korean competition authority.

Update 16 January 2019 the first such trigger was quickly followed by a second: the EU have requested consultations with Ukraine over the country’s ban on the export of unprocessed woods.

This is a short posting for completeness and filing purposes. The EU have requested consultations with South Korea under the Trade and Sustainable Development chapter of the EU-Korea FTA. Labour rights are at the heart of the request. The request is a first trigger of the ‘Trade and’ consultations chapters under recent EU FTAs. I am not in a position to say more at this stage.

Geert.

 

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Unstunned slaughter and organic labelling. Wahl AG opines in light of scope of harmonisation.

Wahl AG advised  last week in Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs. In this case an NGO requests a certification body to stop certifying as ‘organic’, products obtained from religious slaughter, even though neither Council Regulation 834/2007 nor the Commission implementing Regulation 889/2008 on organic production and labelling of organic products with regard to organic production, labelling and control, mention stunned or unstunned slaughter.

I suggested earlier that the case turns around scope of application, albeit that the shadow of the human rights implications hangs over it. The Advocate General agrees: at 33: ‘the Court is therefore not strictly speaking required to rule on a question of interference with the freedom to manifest one’s religion’. In essence, what is not forbidden is allowed: the legislation on organic farming is silent on the question of ritual slaughter; (at 91) this silence on the matter is not the result of oversight for the ‘slaughter’ of animals is mentioned on several occasions in the legislation – is it just simply not regulated.

A certification body therefore is not in a position to impose conditions that do not appear in the relevant legislation in order to obtain an ‘organic farming’ certification. Provided that the provisions governing the methods of raising and slaughtering of animals in order to obtain the ‘organic farming’ label are complied with, the certification body is in principle required to issue that label without adding conditions that are not laid down in the legislation.

I believe the AG is right. I also, on substance, believe that unstunned slaughter, properly carried out, meets with the ethos of organic farming.

Geert.

 

 

 

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Fremoluc: CJEU adopts a lenient (from MS standpoint) view on ‘purely internal’ measures. (External element easy to engineer, though).

In C-343/17 Fremoluc the CJEU held last week. It features as counsel no less than 4 fellow faculty at Leuven Law: 5 if one counts prof Elke Cloots whom we foolishly let escape to elsewhere – and who was the most vociferous (and, it would seem, persuasive) at the hearing, I understand. Had we had either one of my two collegae proximi who serve as judges on the CJEU assigned to the case, there would have been more residents of Collegium Falconis at Kircherg on the day of the hearing then there have recently been at Faculty meetings. But I digress.

The case essentially concerns services of general economic interests (SGEIs), as applied to the social housing sector: what kind of measures may a Member State roll-out to support the provision of such housing, in light of the free movement of not just persons but also services and capital. By extension, the case-law is also relevant to property rights restrictions across the EU.

In the case at issue applicant had seen a purchase of land torpedoed by the right of pre-emption of a relevant agency, relating to building land situated in areas earmarked for house renovation and house-building in 26 municipalities in its operating area. Fremoluc suggested the condition in the underlying decree that ‘as regards the provision of homes or land in a social housing project…, absolute priority must be given, at any stage of the project, to prospective tenants, leaseholders or buyers who have strong social, economic or socio-cultural ties with the operating area in question’, constitute an illegal condition under EU law. Consequently, it argued, the right of pre-emptive purchase itself was illegal.

The CJEU however, with reference to relevant case-law (please refer to the text of the judgment for same), held that the case was inadmissible, for it is purely internal: at 28-29: ‘it is not sufficient for the referring court to state that it is not inconceivable that nationals established in other Member States were or are interested in making use of Union provisions on fundamental freedoms to carry out activities in the territory of the Member State which enacted the national legislation in question and, consequently, that that legislation, applicable without distinction to nationals and to nationals of other Member States, is capable of producing effects which are not confined to that Member State.’ ‘The request for a preliminary ruling must clearly set out specific factors, that is, not hypothetical considerations but specific evidence, such as complaints or applications brought by operators situated in other Member States or involving nationals of those Member States, on the basis of which the required connecting link may be positively established. More particularly, the referring court may not merely submit to the Court evidence suggesting that such a link cannot be ruled out or which, considered in the abstract, could constitute evidence to that effect, and must, on the contrary, provide objective and consistent evidence enabling the Court to ascertain whether such a link exists.’

Such evidence of course in practice is easily engineered. A similar case therefore is bound to return to Luxembourg at some point soon.

Geert.

 

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