Posts Tagged External relations

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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CMR and the Brussels regime. The UKSC applies Nipponkoa in BAT /Essers.

Confession time: when teaching the general conflicts course I tend to simply say about Article 71 of the Brussels I Regulation (unchanged in the Recast): ‘it’s complicated’. I have also briefly flagged the Article in my posting on Nickel and Goeldner. I suppose I should not be quite so shy in addressing the relationship even in an introductory conflicts class for, essentially, it is not that complicated at least form a hierarchical point of view. Article 71 mirrors Article 351 TFEU which states that any rights or obligations arising prior to the TFEU shall not be affected by it unless the agreements are not compatible with the TFEU. At stake therefore is a review by the courts whether international agreements between the Member States prior to the creation of the EU, are compatible with the TFEU.

In [2015] UKSC 65  BAT Denmark v Kazemier and BAT Switserland v Essers, the United Kingdom Supreme Court had to carry out this exercise vis-a-vis the 1956 CMR Convention –   the Convention on the Contract for the International Carriage of Goods by Road. As Steven Baker notes, Lord Mance kicks off his judgment with the rather delightfully accurate ‘Cigarettes attract smokers, smugglers and thieves’. Tobacco manufactuters are also of course active litigators hence providing us with repeated opportunity to review case-law on a wide variety of contractual and other matters.

In the two appeals, one container load was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express instructions near Copenhagen en route between Hungary and Vallensbaek, Denmark.

The consignors (two of BAT’s corporate vehicles) are claiming against English main contractors who undertook responsibility for the carriage and against sub-contractors in whose hands the cigarettes were when the alleged losses occurred. The carriage was subject to the Convention on the Contract for the International Carriage of Goods by Road 1956 (“CMR”), given the force of law in the United Kingdom by the Carriage of Goods by Road Act 1965.

English law and English jurisdiction are said to offer the advantage that such duty and/or taxes are recoverable in a CMR claim against carriers, which is not the case in some other jurisdictions (at 4).

Citing (and reading in a particular way) CJEU precedent, in particular  Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV (DTC Surhuisterveen BV intervening), C-452/12, the Supreme Court held (at 57) that CMR represents a balanced jurisdictional régime adopted across a wide-range of some 55 states, only half of which are Union member states. It did not regard its tailored balance as impinging on any of the principles of Union law which the CJEU would have it check against.

CMR applies therefore and under relevant English application, neither of the defendants can be sued in England.

Geert.

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Landmark judgment in the making. High Court refers to Luxembourg, demarcation of Moroccon territory viz Saharawi.

How exactly is the EU bound by public international law? What is the justiciability of acts of foreign sovereign nations in EU courts? To what extent can an individual rely on customary or other sources of public international law, in national courts or at the CJEU?  All of these questions often puzzle non-lawyers (if something is illegal due to a higher rule, how can the lower rule still be in existence) and lawyers alike. At the EU level, things are complicated due to the hybrid (OK: sui generis) nature of the EU, and its complicated relationship with international law.

In Western Sahara Campaign UK, claimant is an independent voluntary organisation founded in 1984 with the aim of supporting the recognition of the right of the Saharawi people of Western Sahara to self-determination and independence and to raise awareness of the unlawful occupation of the Western Sahara. Defendants are the Inland Revenue, challenged for the preferential tariff given on import to the UK of goods that are classified as being of Moroccan origin but in fact originate from the territory of Western Sahara. The second challenge is brought against the Secretary of State for the Environment and Rural Affairs (DEFRA) in respect of the intended application of the EU-Morocco Fisheries Partnership Agreement to policy formation relating to fishing in the territorial waters of Western Sahara.

Essentially, it is claimed that defendants ought not to apply the relevant European agreements for these are, arguably, in violation of public international law. Claimant contends that Morocco has annexed the territory of Western Sahara and claims it as part of its sovereign territory despite decisions of the United Nations and the International Court of Justice (ICJ) that the people of Western Sahara have the right to self-determination. Accordingly it is said that Morocco’s occupation is in breach of the principles of international law and the Charter of the United Nations.

Under EU law, only the CJEU can establish the invalidity of EU law. Blake J decided to send the case to Luxembourg for preliminary review. Defendants opposed such reference primarily because they submit that the issues raised by the claimant are matters of public international law that the CJEU will decline to adjudicate on in the present circumstances. Precedent which they relied on is not unequivocal, however. This case therefore will be an opportunity for the CJEU (Grand Chamber, one would imagine) to clarify the relationship between EU and public international law.

Geert.

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Is something fishy in the State of Denmark? Faroe Islands WTO and UNCLOS litigation provides a honey pot to trade and EU lawyers

POSTSCRIPT 11 June 2014: An understanding reached today (11 June) means the case will now not reach the WTO. Pitty in many ways.  See EC press release  and WTO database.

Yummie. That’s how Trade lawyers and EU lawyers receive news of the Danish request for consultations  with the EU, over at the WTO, on behalf of the Faroe Islands. A separate action is underway with UNCLOS (although the docket there shows no sign as yet of the case). Disagreement over herring stock lies at the root of the offending EU Regulation, with sanctions imposed by the EU disallowing Faroese fishermen to land mackerel or herring in EU harbours or export such fish to the EU.

The EU justify their action on stock conservation grounds, thus bringing GATT Article XX into play. Action at the WTO is exciting both because it joins a growing list of actions related to domestic regulatory authority, and because it is unheard of for one EU Member to take another to the WTO (Faroe’s specific status under EU law explains this, however even in EU law this terrain is quite uncharted).

As sources at the WTO say: ‘it’s a really interesting case’: that quote must be in the running for understatement of the year. Sources at the EU suggest no one had expected Denmark’s WTO filing to actually materialise.

Geert.

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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.

Geert.

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