Posts Tagged EU

No sugar rush. CJEU rejects appeal in Dextro Energy labelling case.

The CJEU held yesterday in Case C-296/16P Dextro Energy (text of judgment available in French and German only at the time of posting), an appeal against the General Court’s ruling in T-100/15. The General Court had declined to annul the European Commission Regulation which refused to authorise certain health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. Dextro Energy had wanted to include health claims such as  ‘glucose supports normal physical activity’ and ‘glucose contributes to normal muscle function’. The EC had refused: citing (in Regulation 1215/8)

‘Pursuant to Articles 6(1) and 13(1) of Regulation … No 1924/2006 health claims need to be based on generally accepted scientific evidence. Authorisation may also legitimately be withheld if health claims do not comply with other general and specific requirements of Regulation … No 1924/2006, even in the case of a favourable scientific assessment by [EFSA]. Health claims inconsistent with generally accepted nutrition and health principles should not be made. [EFSA] concluded that a cause and effect relationship has been established between the consumption of glucose and contribution to energy-yielding metabolism. However, the use of such a health claim would convey a conflicting and confusing message to consumers, because it would encourage consumption of sugars for which, on the basis of generally accepted scientific advance, national and international authorities inform the consumer that their intake should be reduced. Therefore, such a health claim does not comply with point (a) of the second paragraph of Article 3 of Regulation … No 1924/2006 which foresees that the use of claims should not be ambiguous or misleading. Furthermore, even if the concerned health claim was to be authorised only under specific conditions of use and/or accompanied by additional statements or warnings, it would not be sufficient to alleviate the confusion of the consumer, and consequently the claim should not be authorised.’

The General Court performed its standard review in the face of a wide discretionary room for manoeuvre for the EC, and decided the EC had not exceeded its authority in holding as it did – even in the face of more lenient EFSA recommendations. The Court of Justice has now entirely sided with the General Court. The Judgment is a good reminder of aforementioned standard test (no de novo or merits review; annulment in the event of manifest transgression of power or error in judgment only), and readers best refer to reading the judgment itself.

One consideration however, I should like to highlight: Dextro Energy had suggested the health claims needed to be assessed in light of the target group (determined in the product’s advertising), which, it was suggested, were physically active people for whom consumption of the glucose tablets in question is not harmless. The Court rejected this approach: the population as a whole, for whom the product is available, are the group which the EC justifiably seeks to protect. The manufacturer’s professed target group is not the relevant group to consider (do bear in mind that this is a product which is widely available and not restricted in any way at points of sale):

At 76-77: si les allégations de santé en cause étaient autorisées, elles s’adresseraient à la population en général, pouvant ainsi encourager la consommation de sucres par les personnes autres que les hommes et les femmes bien entraînés. Dans ces conditions, le Tribunal n’a pas commis d’erreur de droit lorsqu’il a rejeté, au point 57 de l’arrêt attaqué, l’argument de Dextro Energy, selon lequel c’était le groupe cible qui importait aux fins de l’appréciation des allégations de santé en cause.

Geert.

 

 

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Thou shallt address landfills of waste tyres. The CJEU in EC v Slovenia.

It is too readily assumed by many that general Member States’ obligations under the EU’s environmental laws are context only, and not really legally binding. In my Handbook of EU Waste law however I report on a number of cases where the European Court of Justice has rebuked Member States for having failed to take measures to attain some of these general objectives. These cases relate to waste law, evidently, however in other cases the Court’s case-law extends this to EU environmental law generally.

One can now add C-153/16 EC v Slovenia to this list. Slovenia had attempted to address the continuation of waste tyres storage and processing at an abandoned quarry, in contravention of an expired environmental permit. The company dug in its heels, ia via prolonged litigation, with storage and processing continuing.

The Court of Justice found that Slovenia had infringed the general duty of care provisions, as well as enforcement obligations of the landfill Directive and the waste framework Directive. (On the related issues with respect to hazardous waste, the Court found the Commission’s infringement proceedings wanting).

Not all that glitters is gold, of course. The direct effect of these general duty of care provisions remains an issue, as does the absence, arguably, in EU law of a duty of care directly imposed upon waste holders and processors. For that, citisens need to pass via national law wich as current case shows, is not always up to scratch.

Geert.

 

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Introducing: EU environmental law. A handbook.

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.

Geert.

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

Index

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Trading Together For Strong and Democratically Legitimized EU International Agreements

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.

Geert.

 

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CJEU finds Aarhus does not add value in Belgian VAT case.

As a practising lawyer registered to the Belgian Bar I had more than a passing interest in C‑543/14 Orde van Vlaamse Balies v Ministerraad. The case was held on 28 July. At issue is the reversal of the Belgian exemption of legal services from value-added tax (VAT). Of interest for this blog was the Bar Council’s argument that making legal services subject to VAT endangers access to court for individuals. Corporations recover said VAT from the tax their own sales incur. For them, making legal services subject to VAT has zero impact on their books.

The Bar Council sought support among others in the Aarhus Convention, particularly Article 9(4) and (5) on access to court:

‘3.       In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4.       In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5.       In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.’

Perhaps taking inspiration from the Grand Chamber’s approach in Vereniging Milieudefensie, and consistent with the suggestion of Sharpston AG, the five judges Chamber dismissed direct effect for Articles 9(4) and (5) of Aarhus, mostly because of the Conventions deference in Article 9(3) to ‘national law’.

Given the increasing (but as noted recently qualified; see also here) cloud the CJEU’s Grand Chamber had been given Aarhus, this finding by a five judge chamber that Aarhus Articles 9(4) and (5) do not have direct effect is a little awkward. It also puts the Grand Chamber itself in a challenging position. There are quite a number of Aarhus-related cases pending. Will this chamber’s view on 9(4) and (5) be followed by the assembled top dogs? And if it is not, can the Grand Chamber overrule or distinguish without embarrassment?

Geert.

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Ach no! CJEU distinguishes rather than extinguishes its Preussen Elektra case-law in Germany v EC. State aid for renewable energy.

The rather long judgment in T-47/15 Germany v Commission is neatly summarised by the CJEU here. I have reported before on both the State Aid and the free movement implications of the Court’s seminal findings in Preussen Elektra. In current case, the Court essentially upholds the EC’s finding of the more recent German regime amounting to illegal State aid and incompatibility with the Internal Market – in contrast with its earlier findings in Preussen Elektra.

Disappointingly, Preussen Elektra was distinguished rather than its merits called into question. Rather like Advocate-General Bot I stubbornly insist that Preussen Elektra is bad case-law and I continue to call upon the Court to scrap its findings in same.

Geert.

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‘We did not like it. Not one little bit!’ Bot AG reads Dr Seuss in Essent 2.0.

Perhaps because it so reflected our children’s character [all ‘Duracell‘ kids] there is one part of Dr Seuss’ Cat in the Hat which has always stuck with me:

so all we could do was to

sit!

   sit!

      sit!

         sit!

and we did not like it.

not one little bit.

I was reminded of the line, reading Bot AG’s Opinion in Case C-492/14, ‘Essent 2.0’ (not yet available in English at the time of writing). In order to promote the generation of renewable energy, Flanders law makes transmission of electricity generated from renewable sources, free of charge. However this courtesy is limited to electricity generated in installations directly connected to the grid. Essent imports (a considerable part of) its green electricity from The Netherlands. It does not therefore enjoy free transmission.

Bot’s disapproval of trade restrictions like these is well established and has often been reported on this blog. The CJEU disagrees with its AG on many of the issues. I am in general of the same view as the AG. Mr Bot continues to find the Court’s case-law unconvincing and makes no attempt to hide it. He repeatedly mentions that he is duty-bound to apply Essent /Vindkraft without believing they are good law. It is with obvious regret that he Opines that given the Court’s stand in Essent /Vindkraft, he has no option but to propose that the Court find the Flemish regime acceptable.

The AG does however leave open a future window for change: in particular, if and when the secondary law regime on renewable energy specifically, and energy as a whole, is amended, one may be able to distinguish Essent /Vindkraft.

Bot also reminds us of the unclear position of environmental exceptions under Article 36 TFEU and the Rule of Reason. He calls upon the Court formally to acknowledge that the Cassis de Dijon distinction between the Rule of Reason and Article 36 (the former does not allow ‘distinctly applicable’ national measures (read’ discrimination) while the latter does) no longer exists.

I do not like judgment in Preussen Elektra. Or in Essent. Not one little bit. It discourages the creation of a true European energy market. Perhaps the Court will surprise us all in Essent 2.0 and will correct some of the damage it has done with its standing case-law on the matter.

Geert.

 

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