Deutsche Telekom Fined

European Court of Justice - Court of First Instance upholds fine imposed on Deutsche Telekom for abuse of dominant position.

In 2003 the Commission of the European Communities – the executive branch of the European Union – found that Deutsche Telekom “had been abusing its dominant position on the markets for direct access to its fixed telephone network.” Deutsche Telekom, a German-based former state-owned monopoly, is the largest telecommunications company in Europe. The Court of First Instance rejected the company’s legal objections to a EUR 12.6 million fine imposed by the Commission. The Court also noted that the Commission’s authority to find infringements of competition law is not abrogated by decisions made by national authorities. For more information, please click here.

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EU Commissioner Highlights Nuclear Power

In a speech at the European Nuclear Assembly Conference, Energy Commissioner Andris Piebalgs reiterated the importance of nuclear energy for the reduction of carbon emissions, while emphasizing the “need to strengthen the cooperation between EU Member states on the issues related to the safety and security of nuclear installations and the treatment of nuclear waste.”

Commissioner Piebalgs’ comments reflect the Commission’s commitment to invest in Europe’s rapidly aging power plants while addressing the public interest in nuclear safety and waste management through initiatives such as the High Level Group on Nuclear Safety and Waste Management, the European Nuclear Energy Forum and the Sustainable Nuclear Energy Technology Platform (SNE-TP).

For more information, click here.

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ECJ AG Proposes Extending Double Jeopardy

In a non-binding opinion released last week, Advocate General Ruiz-Jarabo proposed extending the principle of double jeopardy to include cases in which the initial penalty could never be enforced.

The case discussed is a reference from a lower-level German court hearing the case of Klaus Bourquain. Mr. Bourquain, who is a German citizen, deserted from the Foreign Legion in 1961 and was convicted of murder and sentenced to death in absentia by a French military tribunal in Algeria. Bourquain subsequently fled to Germany and no further charges were sought against him. Had he been recaptured, under the laws of the time a new trial would have ensued, moreover, France has since abolished the death penalty, instituted amnesty for Algerian actions, and the statute of limitations has run now out. Nonetheless, in 2002, German prosecutors brought proceedings against Mr. Bourquain in order to try him in Germany for the crime committed in Algeria.

AG Ruiz-Jarabo stated that the sentence in absentia should have constituted a judgment with the force of res judicata by 2002. Although a procedural idiosyncrasy in French law does not allow the sentence to be carried out, that does not in any way impair the legal force of the judgment as an enforceable, final legal act. For more information, click here.

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Former Prime Minister of Kosovo Acquitted

Last week, the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted former Kosovo prime minister Ramush Haradinaj of war crimes and crimes against humanity. Haradinaj was also a commander in the Kosovo Liberation Army (KLA) during the late 1990s. Although he was charged with crimes such as murder, rape, and torture, the ICTY found that these crimes, if committed, may have been targeted against individuals rather than against groups. Because the victims may have been targeted for individual reasons, the ICTY could not find that Haradinaj had targeted entire civilian groups.

Although one of Haradinaj’s co-defendants, Idriz Balaj, was also acquitted, a third co-defendant, Lahi Brahimaj, was convicted and sentenced to six years in jail for cruel treatment and torture.

Judge Alphonsus Orie stated that the court has had difficulty in obtaining testimony from a significant number of witnesses. Orie remarked that “The Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe.”

More on the story here.

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Ukrainian Violation of ECHR Article 11

The European Court of Human Rights recently held in Koretskyy & Ors. v. Ukraine that there was a violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights, where the Ukrainian authorities refused to register the applicants’ association called the “Civic Committee for the Preservation of Wild (Indigenous) Natural Areas in Bereznyaky”. The organization was a voluntary association of citizens, non-governmental organizations and other legal entities aiming to preserve wild, natural systems in Ukrainian cities and towns. It was alleged by the government authorities that the association articles had not been drafted in accordance with domestic law. Specifically that the articles failed to contain the association’s status, provided for more activities in other cities than permitted, and entrusted the executive board with financial activities. The Ukrainian Government also argued that it had the exclusive right to regulate independently the activities of non-governmental organizations on its territory. The court opined that the regional court’s decision was insufficient and lacked explanation on any of the allegations. It also held that the association had completely peaceful and democratic aims and did not threaten the system of registration by functioning in towns other than Kyiv. The court found an Article 11 violation because there was no pressing social need to refuse registration.

For further details, click here.

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Flemish Insurance Violates EC Treaty

On April 1st the European Court of Justice invalidated provisions of a state-supported Flemish health care insurance program that entitles residents of the Dutch-speaking region and the bilingual capital district to reimbursement for health care assistance expenses.
The tripartite Belgian federal system– composed of the Flemish Government, the Walloon Government, and the Government of the French Community– is constructed along ethnic lines, and the Flemish insurance program does not extend to the French or Walloons. The French and Walloon governments brought a suit against the Flemish government in the Belgian Constitutional Court, who then referred questions to the ECJ.

The ECJ reaffirmed that it cannot intervene in purely internal matters and therefore could not address the benefits accorded to French and Walloon Belgians working in Flemish areas who have not come under the purview of Community law by exercising their right to free movement. However, the Court noted that the scheme restricted the free movement of workers in violation of the EC Treaty by denying benefits to nationals of other Member States working in the Flemish area but living in another region of Belgium, as well as to Belgian nationals in the same position who have exercised their right to free movement. The Court found no legitimate justification for the exceptional treatment. It also suggested the Belgian court itself might have cause to invalidate the remaining portion of the law based on its internal discriminatory effects.

For more information, please click here.

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Fiscal Drag Creates Uneven Tax Burden

A new OECD study investigated the interaction between income, inflation and tax obligations in OECD countries.  Notably, workers in several countries saw their nominal tax burden rise in response to high earnings growth. This phenomenon, known as fiscal drag, occurs in countries where tax rates increase as nominal taxable income rises. Workers are thus forced to pay higher taxes due to inflation or, ironically, after experiencing increases in real income. The latter scenario played out in several upper-middle income OECD countries that experienced high growth rates in full-time earnings, such as Greece, Hungary, South Korea, Portugal and Turkey. Despite concerted legislative efforts to ease tax burdens, such high growth in earnings – in many cases more than 40% – pushed enough workers into a higher income bracket to create fiscal drag.

For the full story, please click here.

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Limited Liability for Pollution

In Commune de Mesquer v Total France SA and Total International Ltd, the European Court of Justice opined in favor of limiting liability under the polluter pays principle where the waste is not caused intentionally or recklessly. The plaintiff brought the suit for the costs of cleaning oil waste from beaches that resulted from the sinking of a defendant-owned ship. In practice, under the Waste Framework Directive, the financial burden of the disposal operation is on the persons who caused the waste, so long as there is an accusation that they contributed personally to the heavy oil leakage. The opinion relied on the International Liability Convention and the Convention on International Fund for Compensation for Oil Pollution Damage to limit liability of oil producers, sellers, carriers while still meeting the ‘polluter pays’ principle.   

For further details on this case, click here.

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EU Allocates Funds to Fight World Hunger

On March 4, the European Commission announced that it would devote €160 million to provide food aid to nations suffering from destabilizing crises around the world. Between the 17 initially-targeted nations - largely in sub-Saharan Africa and the Middle East - it is estimated that 18.7 million people will receive aid. Specific concerns include refugees and internally displaced peoples, with an emphasis on providing for mothers and young children.

The funds will not only support the distribution of foodstuffs in the aftermath of disasters and conflicts, but will also assist “food-for-work” activities directed towards re-establishing lines of income, agricultural self-sufficiency, and stability. The aid will be funneled through the UN World Food Programme, the International Committee of the Red Cross and Commission-partnered NGOs.  More allocations are planned for later in 2008.

For more information, click here.

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ICC Members Push for Multilateral IP Agreement

Members of the International Chamber of Commerce’s Business Action to Stop Counterfeiting and Piracy (BASCAP) Committee have asked US Trade Representative Susan Schwab to speed the development of the Anti-Counterfeiting Trade Agreement (ACTA). CEOs of member companies gathered on March 3 to unveil recommendations for the ACTA and a set of in-country strategies aimed at fighting counterfeiting in Russia, China, the United States, the UK, Canada and Germany. BASCAP also announced a consumer education campaign which will inform the public of the damage caused by trade in counterfeit goods. The group also agreed to work with the World Customs Organization (WCO) and the World Intellectual Property Organization (WIPO).

The ACTA is currently being developed by the US, Canada, the EU, Japan, Korea, Mexico, New Zealand and Switzerland. ICC Secretary General Guy Sebban hopes that ACTA will become the new “gold standard” in IP enforcement. The meeting of BASCAP included top executives from GE, Microsoft, Pfizer, Unilever and other corporations. The ICC announcement is available here.

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