Bird flu gives European Commission a late headache – The ECJ emphasises the discipline of the precautionary principle in Animal Trading Company

The General Court (the court in first instance) of the European Court of Justice has held against the Commission in Case T-333/10 Animal Trading Company. The English version of the judgment was not yet available at the time of writing.

The applicants seek compensation for the harm which they have suffered as a result of, first, the European Commission ban on the importation of birds caught in the wild, which entered into effect in October 2005 in the light of the avian flu phenomenon, second, the extensions of that ban, and, third, the restrictions which have been in force since 1 July 2007 on the importation of birds and which, de facto, continue the prohibition of the importation of birds caught in the wild.

Applicants’ arguments centered on firstly the executive power of the Commission  – with the General Court holding however that the Commission’s action was not ultra vires. The Court subsequently re-iterated its case-law that in looking after human and animal life and health, the European Institutions enjoy a large discretion in light of the precautionary principle. However it also held that in pursuing this wide remit, the Commission diligently has to take account of all available information, and has to follow due process in acquiring such information.

The Court held that the general import ban (and subsequent extensions) had cast the net too wide, given that no assessment was made of the risks presented by imports of birds other than in regions where avian flu had been present. The Commission had not diligently chased relevant information.

The Case is perhaps a relief from the findings in Gowan, however the judgment may be appealed to the ECJ on a point of law – which may not be that obvious for the European Commission to find.


How ‘trade related’ is the Agreement on Trade-Related Aspects of Intellectual Property Rights? The ECJ in Daiichi Sankyo v Demo

In  Daiichi Sankyo v Demo (most likely ‘Demo’ in shorthand), the Court of Justice held last Thursday, 18 July. One of the main issues was the extent of Article 207 TFEU on the EU’s common commercial policy, vis-a-vis the TRIPS Agreement. Article 207 grants the EU exclusive competence (and the European Commission a very strong hand) in ‘common commercial policy’.

By its first question, the referring Greek court asked essentially whether Article 27 of the TRIPs Agreement falls within a field for which the Member States have primary competence and, if so, whether the national courts may accord that provision direct effect subject to the conditions laid down by national law. The TRIPs Agreement was concluded by the Community and its Member States by virtue of shared competence. At the time, for the EU to be able to exercise exclusive jurisdiction pre Lisbon, under the in foro interno, in foro externo principle, it would have had to have exercised its powers in the field of patents, or, more precisely, of patentability: roll-out of its internal powers on patentability, would have als led to exclusive power externally. The European Commission however suggested that the mixed agreement discussion (and the exercise, or not, of its internal powers), was no longer relevant, given that the Lisbon Treaty has now given it exclusive competence in the entire common commercial policy, including for intellectual property rights. Under the old Article 113 EC Treaty (later updated to Article 133 – many of us still speak of the ‘Article 113 Committee, which surely dates us!), intellectual property rights did not feature in the common commercial policy.

The ECJ conceded that of the rules adopted by the European Union in the field of intellectual property, only those with a specific link to international trade are capable of falling within the concept of ‘commercial aspects of intellectual property’ in Article 207(1) TFEU and hence the field of the common commercial policy. However it emphatically [and contrary to the view of Cruz Villalon AG] held that such is indeed the case for the TRIPS Agreement: ‘Although those rules do not relate to the details, as regards customs or otherwise, of operations of international trade as such, they have a specific link with international trade. The TRIPs Agreement is an integral part of the WTO system and is one of the principal multilateral agreements on which that system is based.’ (para 53).

Member States cannot therefore grant direct effect to the provisions of TRIPS, in accordance with national law. It is up to the ECJ to hold on such direct effect – or not, and in the absence of such direct effect, to interpret the provisions of EU law in line with the provisions of the TRIPS Agreement.

The judgment also reviews a number of substantial aspects of intellectual property law which I feel less entitled to comment on, I fear.


Looks like regulation to me – Commission draft guidance consultation on the ‘Corporate Responsibility to Respect’

The UN Guiding principles on business and human rights were adopted in 2011, after having been developed by prof John Ruggie and team. The aim of the principles effectively (and in my view) is to create a halfway house between full duties (and rights?) of multinational corporations under public international law (especially in the human rights and environmental field), on the one hand, and complete lack of accountability of those MNCs under the same law, on the other.

CSR originally was firmly meant as a market-based instrument for sustainable development. Ignoring the alleged mistakes of a command and control approach to sustainable development, CSR would allow companies voluntarily to gain a proactive sustainable development profile, thus gaining consumer appreciation, whence serving the three P’s: People, Planet, Profit. As so often, though, these market-based instruments gradually look ever more like the command and control approach which they profess to despise.

Exactly this is happening to the UN Guiding Principles, at least as further developed by the European Commission. It is in the process of formulating sector-specific guidance [for employment and recruitment agencies; ICT; and oil and gas] for companies to implement the UN Guiding principles. This may mean either that command and control approaches to sustainable development are not half as bad as they are made out to be; and /or that in the end, voluntarism in sustainable development will never be enough to help achieve it.


The proposed 7th EU Environment Action Plan. Does a lack of exciting blog entry title signal lack of excitement in its subject-matter?

This call is a difficult one. Everyone knows that the true impact of law and policy is made not in grand statements but in the hard graft of Statutes, implementation, compliance and litigation. Whence I am not a fan of new versions of core principles in, say international environmental law (Rio+20 comes to mind): the old principles do the job just fine.

In the EU, Environment(al) Action Programs or ‘EAP’s’ go back some time: 1973, 1977, 1983, 1987, 1993, 2002. The latter, the sixth, covered a 12 year period. The Commission have now proposed the 7th, which is to run until 2020.  It is entitled ‘”Living well, within the limits of our planet”, which is of course reminiscent of the Club of Rome Report on Limits to Growth.  There are nine priorities in the EAP. Will they change the world? Not in and of themselves. Do they distract and divert time which would have been better spent on detail? Probably. However they might focus the minds of the Commission officials who are in charge of policy formulation, and implementation, and of the Member States who are supposed to be the enforcers par excellence.



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.