Posts Tagged Separation of powers

Digital import suffices for jurisdiction of the US International Trade Commission in patent infringement

Update November 2015 the CA reversed the finding of jurisdiction on 10 November 2015, confining it to material items. However its judgment was not unanimous (one dissent) nor unequivocal in argument. The case is likely therefore to be continued.

Update 26 August 2015 the CA reportedly was skeptical of the jurisdictional line taken by the ITC, citing in particular enforcement challenges as well as seperation of powers: extension of jurisdiction such as in this case may have to be determined by Congress, not by a regulator.

Update 4 August 2015: the US Court of Appeals will hear arguments on the case mid August.

The US International Trade Commission has held (in re Align Technology Inc, 337-TA-833) that electronic /digital import of plans and manuals with a view to producing moulds for dental aligners (braces) suffices to give the ITC jurisdiction. As I understand the case, the companies violating Align Technology’s patents were based in Pakistan, without domestic residence of any kind in the United States. The data were then used by US-based dental practices to produce the braces.

The foreign residence of the patent infringers fed into arguments made by defendants that a cease and desist order by the ITC would be very difficult to enforce, an argument against upholding jurisdiction in the first place. The ITC was not swayed.

I understand Google, among others, argued that digital data do not qualify as ‘articles’ under relevant US law. Reminiscent to some degree of the dismissal of Google’s arguments by JÄÄSKINEN AG in  Google Spain, the ITC disagreed: digital data are very real articles as, I would argue, the massive market for digital download already amply illustrates.


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Supreme Court goes Jules Verne and crosses the HS2 Bridge at high speed. Aarhus, SEA, EIA and supremacy of EU law all fail to make an impact.

In Chapter XXVIII of Jules Verne’s Around the world in Eighty Days, the train driver, egged on by enthusiastic US passengers and despite objections by Passepartout, reverses his train to cross a wobbly bridge (successfully) at high speed. With all passengers on board. It is a favourite chapter of mine and one which comes in handily in risk management classes.

In HS2 Action Alliance v Secretary of State for Transport, the United Kingdom Supreme Court took inspiration from Chapter XXVIII in dismissing all arguments based on the Aarhus Convention, the EIA Directive, the SEA Directive, and supremacy of EU law. These arguments were raised against the UK Government’s  ‘Command paper’, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” . The command papers sets in motion the reality of the development of the HSs high speed rail link between the South of England, the north and Scotland.

Lord Carnwath summarised the legal issues as follows (at 15):

i) SEA whether the DNS in the circumstances of HS2 is a “plan or programme” which “sets the framework for development consent” and was “required by administrative provisions” within the meaning of articles 2-3 of Directive 2001/42/EC (“the SEA Directive”).

ii) Aarhus whether if the interpretation of the majority in the Court of Appeal is correct, article 3(2)(a) of the SEA Directive is inconsistent with article 7 of the Aarhus Convention, and if so with what consequences.

iii) EIA/Hybrid Bill whether the Hybrid Bill procedure as proposed meets the requirements of Directive 2011/92/EU (“the EIA Directive”), taking account in particular that (a) issues of principle will be excluded from the Select Committee stage, and (b) the debate on the Bill at Second and Third Reading will be subject to a Government whip.

iv) Timing whether the court should intervene at this stage, or whether the court should wait until the Parliamentary process is completed;

v) CJEU reference whether any of the above questions raise uncertain issues of European law on which a reference should be made to the European court.

David Hart QC superbly summarises the Court’s findings and much of its reasoning over at the Human Rights blog and I am happy to refer my readers to him to get, well, up to speed on the judgment. I should simply like to point out that the Court’s boldness lies not so much in the merits of its decision, rather in the more or less belligerent wording and indeed telling off aimed at the Court of Justice.

With respect to Strategic Environmental Assessment – SEA [aimed at ensuring that environmental impacts are identified upstream, by ensuring that programs and plans which will lead to EIA-bound projects, are vetted themselves], a command paper formally does not set anything in stone about the ensuing (or not) development of the project which it will lead to. Much can still change and Members of Parliament have every right and prerogative to have the project amended or indeed scrapped altogether. However, clearly this is a project the realisation of which the government will want to ensure. It is in my view not merely ‘policy’, but a proper plan. Whence in reality this is exactly the kind of program which the SEA Directive had in mind when pressing for impact assessment upstream. Like the train carrying Passepartout et al, the adoption of this Command Paper has set in motion developments which will be all but impossible to stop. With one step following logically from the other, the intentions addressed in the Command Paper display a high degree therefore of fait accompli. The intent and purpose of the SEA Directive in my view does require its application in casu. I appreciate however that intent and purpose as interpretative tool is met lukewarmly by the Supreme Court. (I grant moreover that the Supreme Court does justifiably criticise some of the ECJ’s case-law on the EIA Directive, where very clear provisions nevertheless were altered in their meaning by reference to intent and purpose. The ‘claris’ in ‘in claris non fit interpretatio’ clearly lies in the eye of the beholder).

Of particular EU institutional interest is the Supreme Court’s reference to the Bill of Rights (at 206), Parliamentary Sovereignty, and the 2013 Bundesverfassungsgericht’s judgment on  the Counter-Terrorism Database Act. (Translated by the SC in relevant part as as part of a co-operative relationship, a decision of the Court of Justice should not be read by a national court in a way that places in question the identity of the national constitutional order). The SC is right in pointing out the difficulty under the doctrine of separation of powers, of courts second-guessing not the way in which data were put before parliament, but rather how members of that parliament subsequently interpret and apply those data. More generally, though, in suggesting, when criticising the ECJ judgments on that role of the courts, to restrain the ECJ in its interpretative space, the Supreme Court inevitably joins the queue of national supreme courts which are jittery about the positioning of the ECJ (and the ECtHR) on their turf.

This judgment is of very high relevance both for EIA and SEA, and for EU Institutional law. No doubt much more to be chewed on.


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Fracking litigation in France – Reference to the Constitutional Court

It has been reported that the challenge to the French moratorium on shale gas exploration, by US firm Schuepbach Energy, has been referred to the Constitutional Court. Schuepbach had initially challenged the freezing effect of the 2011 ban on the permits which the firm had been granted erlier in 2011, before the lower administrative court at Cergy Pontoise. This court referred for judicial review to the Conseil d’Etat, which now has passed the file on to the Constitutional Court.

I have difficulty getting hold of the official court documents. Reports suggest that the challenge is based on Articles 16 and 17 of the French Déclaration des droits de l’homme et du citoyen, dealing cq with the separation of powers and the right to property.

The French challenge comes amidst the imminent publication of the report commissioned by the European Commission into the suitability, or not, of the current legal framework in the EU and the Member States for regulating shale gas. A little bird tells me (ok, it’s a PhD student of mine, Leonie Reins, who co-authored the report) that the report will be published just after the summer.

In a related, more technical but not therefore less effective manner, Poland’s roll-out of fracking licences arguably received considerable setback following the ECJ’s end of June ruling in Case C-569/10, Commission v Poland: the court held that Poland should have put the licences out to open tender, in accordance with Directive 94/22 on hydrocarbons exploration.  The case does not concern fracking licences alone, and the impact on licences that have already been issued is uncertain (although surely these licences cannot be held to be entirely kosher and free of challenge by competitors or NGOs, following the judgment).

Watch this space.  I need not tell you that fracking is very controversial in the EU. See in particular this tour d’horizon /overview of contentious issues by Kathleen Garnett over at EU perspectives.


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