Archive for category Trade law
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.
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.
I believe the AG is right. I also, on substance, believe that unstunned slaughter, properly carried out, meets with the ethos of organic farming.
Anchor defendants in follow-up competition law cases. The High Court in Vattenfall et al v Prysmian et al.
A classic case of follow-up damages litigation in competition law, here in the high voltage power cables cartel, fines for which were confirmed by the CJEU early July. Core to the case is the application of Article 8(1)’s anchor defendants mechanism. Only two of the defendants are UK incorporated companies – UK subsidiaries of companies that have been found by the European Commission to have infringed EU competition law.
Authority cited includes of course CDC, Roche Nederland and Painer, and Cooper Tyre (sale of the cartelised products can amount to implementation of the cartel). Vattenfall confirms that for the English courts, ‘knowingly implementing’ the cartel has a low threshold.
At 89 ff the Court refers to the pending case of (what I now know to be) C-724/17 Skanska Industrial Solutions e.a.: Finnish Courts are considering the application for cartel damages against parent companies on acquiring cartelist subsidiaries, had dissolved them. Relevance for Vattenfall lies with the issue of knowledge: the Finnish courts wonder what Article 101 TFEU has to say on the degree of knowledge of the cartelist activities, relevant for the liability of the parent company. An application of fraus, or abuse in other words. Elleray DJ however, did not consider the outcome of that reference to be relevant for the case at hand, in its current stage of procedure.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 220.127.116.11
Readers can file this one under ‘exotic’. The title of this piece does not quite give it away yet: this post is a serious post on customs classification.
My wife and I have a more than average size family, ditto therefore also the family car. Our previous version was black. We had parked it a few summers ago on the village square close to the home of one of my sisters in law, a sleepy French hamlet. A local lady came up to me and asked respectfully who had passed away… She mistook our car for a hearse, leading to my brother-in-law suggesting I should put some stickers up saying ‘ceci n’est pas un corbillard’.
Now, to the serious issue: in Case C-445/17 Pilato, the Court of Justice was asked (the case was triggered by a BTI: Binding Tariff Information) how to classify a hearse under the EU’s combined nomenclature: heading 8704 (motor vehicles for the transport of goods); 8705 (special purpose motor vehicles, other than those principally designed for the transport of persons or goods (for example, breakdown lorries, crane lorries, fire fighting vehicles, concrete-mixer lorries, road sweeper lorries, spraying lorries, mobile workshops, mobile radiological units); or 8703 (Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading 8702), including station wagons and racing cars).
The Italian customs authorities have classified under 8703 – the importer is appealing, I am assuming given the higher tariff attracted by that heading. Arguments are very serious and technical, as one would expect for customs classification: details on separation racks, etc.
The Court held Wednesday last: at 25: the intended use of a product may constitute an objective criterion for classification; at 30: hearses are particularly built and equipped for the transport of coffins, which contain corpses. A human body, even lifeless, cannot be treated in the same way as goods which may be the subject, as such, of commercial transactions. Therefore, the principal use of hearses is for the transport of persons. 8703 it is (the Court gives some more reasons).
Exactly the kind of case which makes trade classes a little lighter a the right time (the best case for that, ever, involved my wife having to classify a shipment of toy replica. Details on that case I fear are strictly for students of my WTO class).
Unstunned slaughter and EU law. CJEU suggests total ban would be unjustified. Also keep an eye on tomorrow’s case re organic labelling and unstunned slaughter.
Wahl AG advised late November and the Court held late May in C-426/16 – see my post on his Opinion at the time and my previous posts on the issue. A European Regulation (1099/2009) provides for an unclear, and conditional, exemption from a requirement of stunning animals for religious slaughter.
The CJEU as readers will know practices judicial economy. On the face of it, the case only deals with the Flemish decision no longer to authorise, from 2015 onwards, the ritual (sic; why the EU institutions stubbornly refuse to name the practice by its proper name of religious slaughter is beyond me) slaughter of animals without stunning in temporary slaughterhouses in the that region during the Muslim Feast of Sacrifice (Eid al-Adha).
Readers best consult the text of the judgment for it is as concise as it is complete. As the Court points out at 56, the derogation authorised by Article 4(4) of Regulation 1099/2009 does not lay down any prohibition on the practice of religious slaughter in the EU but, on the contrary, gives expression to the positive commitment of the EU legislature to allow such slaughter of animals without prior stunning in order to ensure effective observance of the freedom of religion, in particular of practising Muslims during the Feast of Sacrifice. That is a clear indication of the CJEU being against a total ban (or at the least giving expression to the reality of the EU legislator not approving of such a ban).
That technical framework, the CJEU holds, is not in itself of such a nature as to place a restriction on the right to freedom of religion of practising Muslims. Whether the specific circumstances in Flanders, including the investment needed to convert temporary spaces into licensed abattoirs, in effect hinder Muslims’ practice of their faith in forum externum (at 44), is neither here nor there for the argument under consideration, which is that Article 4(4) itself is incompatible with the Charter on Fundamental rights.
One issue nota bene which was not sub judice, is the incomprehensible discrimination between ‘culture’ (exempt as a whole from the Regulation), and religion (regulated). In short: if myself and a bunch of locals slaughter animals without stunning on a Flemish medieval square, citing local custom, the Regulation does not catch me. But if I do so because I am religiously motivated not to stun, the Regulation’s regime kicks in.
Finally, I introduced my students at American University Washington, College of Law this morning to Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs. In this case (hearing at Kirchberg tomorrow; update November 2018 see my reiew of the AG Opinion here) 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. That case turns around scope of application, I would suggest, albeit that the shadow of the human rights implications hangs over it.
WTO examiners: at ease! Canadian Supreme Court holds in R. v. Comeau (New Brunswick restrictions on alcohol trade).
Fellow faculty about to examine students on the Law of the World Trade Organisation, have their exam sorted (especially if it is an oral exam). In 2018 SCC 15 R v Comeau the Canadian Supreme Court held last week. At issue is New Brunswick’s restrictive regime on the import and sale of alcoholic beverages. Greg Tereposky and Daniel Hohnstein have background to the case.
Despite the Province’s regime having clear trade impact, the SC held that it was not illegal under Canada’s internal free trade rules – with occasional reference to GATT and WTO. For comparative and exam purposes, the interesting angle is clear: has the Supreme Court adopted the kind of aims and effects test which the WTO is no fan of?
Copy of the judgment. 15 mins prep. And Bob’s your (oral exam) uncle.
(Handbook of) The law of the World Trade Organisation, forthcoming at OUP with Demeester, Coppens, Wouters and Van Calster.