European Law Blog #12: The Olive Oil Saga

European Law Blog #12: The Olive Oil Saga

A few themes continue to crop up each week on the ELB: UK Euroscepticism, UKIP, tax evasion and economic troubles. Unfortunately, this week is no different.

However, the persistence of such themes goes to show how important it is for any EU law student to understand what is happening inside the EU. EU law means nothing if you do not understand the motivations and objectives of the European Union as a political entity. This doesn’t mean that you have to agree with everything they do or even be in favour of the EU itself, but you should try to formulate a balanced and informed opinion. This week’s olive oil regulation scandal is a good example of why the legal and political context of EU regulation is so important.

Intellectual property and competition: Joined Cases C‑274/11 and C‑295/11 Spain and Italy v Council of the European Union

Image courtesy of Tristam Sparks of Flickr under a creative commons licence

Image courtesy of Tristam Sparks on Flickr under a Creative Commons Licence

This case was an attempt by Italy and Spain to annul a decision of the Council in regard to the unitary patent protection system, or the EU patent as it has become known. Council Decision 2011/167/EU of 10 March 2011 allowed ‘enhanced cooperation’ to create a system where people will be able to obtain a patent that will be recognised throughout the EU. Enhanced cooperation means that a group of Member States can do something between themselves within the framework of the Treaties and institutions of the EU, but without the need to involve other Member States (Article 20 TEU).

  • The Council decision authorised 25 Member States to set up the EU patent system.
  • The patent package (the second of its kind, the first being rejected) includes provision for a Unitary Patent Court (UPC) with the same standing as a national court in relation to the ECJ (for example, with use of the preliminary rulings procedure).
  • The remaining two Member states, Spain and Italy, refused to cooperate in the EU patent system.
  • This was due to the language restrictions of the patent procedures, which would only use English, German and French, to the exclusion of all other languages.
  • It was argued that the system would give a competitive advantage to those countries which speak these languages. Spain and Italy argued that the use of enhanced cooperation by the other Member States would distort competition to the detriment of the two non-compliant countries.
  • In the case, Spain and Italy argued technical points based on the alleged lack of competency of the Council to authorise the decision to use enhanced cooperation, including misuse of powers and the failure to fulfill the ‘last resort’ criteria in order to use enhanced cooperation, as per Article 20 TEU.

Held: The ECJ rejected Spain and Italy’s argument. It held that the Council was within its competence to make the decision to use enhanced cooperation, since it is within the joint competence of the EU institutions and the Member States to adopt decisions pursuant to the functioning of the internal market (Spain and Italy had argued that the competence engaged was in regard to competition rules, which is within the competence of the EU only).

The Court also held that there was no misuse of powers because the decision contributed to the integration of the internal market. The Council had also shown that it had carefully considered whether the ‘last resort’ criteria had been met and thus the court rejected Spain and Italy’s argument.

Yet again, we can see the power which the functioning of the internal market has on the decision of the Court in determining the competences of the EU institutions. The judgment can be found here.

Cameron’s EU referendum omnishambles

Image courtesy of Guillaume Paumier on Flickr under the Creative Commons Licence

Image courtesy of Guillaume Paumier on Flickr under a Creative Commons Licence

As discussed last week, David Cameron has been under pressure to appease his Eurosceptic Tory backbenchers after several prominent Conservative politicians said that they would vote to leave the EU. Those in the Conservative party want something more concrete than only a promise of a referendum after the next election.

In response to this, Cameron drafted an EU Referendum Bill in order to compel the next government to hold a referendum on membership by the end of 2017. The bill was introduced by backbencher James Wharton MP. As a Private Members’ Bill, it is very unlikely to become law and may not even be debated. The bill was drafted by the Conservatives and opposed by their coalition partners and the Labour opposition. The bill’s second reading is in the process of being timetabled; the preliminary date is said to be 5 July.

So what was the fuss about the Queen’s speech?

In response to the growing furore over the referendum, and whilst the bill was being pushed forward, two Tory MPs took the opportunity to table an amendment to the government’s legislative agenda. The amendment expressed ‘regret’ over the omission of a referendum in the Queen’s speech (which sets out the government’s legislation for that year). The backbench Conservatives were told that they could vote freely, whilst ministers were told to abstain. The amendment gained 131 votes in support, but was defeated by 277 votes, mainly from Labour and Lib Dem MPs. It has been described as sparking a decline in confidence in David Cameron and a sign of him losing control of his party. Things can only get better, David…

European Commission shows their love for olive oil

Image courtesy of Guillaume Paumier of Flickr under the Creative Commons Licence

Image courtesy of Guillaume Paumier of Flickr under a Creative Commons Licence

The European Commission has proposed that hotels and catering industries should be ‘encouraged’ not to reuse bottles or dipping bowls when serving olive oil, causing confusion in the media about what the EU is doing these days. The proposals were set out in the Commission’s action plan for the development of the olive oil sector, an industry that is provided for by the most economically troubled eurozone Member States (Spain, Italy and Greece). The Commission argued that the reuse of bottles means that customers can be mislead as to the quality of the oil they are consuming and new bottles will be more hygienic.

It should be noted that the proposal comes as a part of a bigger development policy for the olive oil industry (73% of the world’s olive oil comes from the EU), which includes provisions for quality control, promotion and competition with countries outside the EU. The action plan is an attempt to strengthen the EU in the global market place to capitalise on the general increase in global demand for the oil. Without this context, it isn’t surprising that the decision looks a little strange.

Continental news round up

The European Parliament is due to debate tax evasion before an EU summit on the issue, after a deluge of scandals have brought the issue to the fore.

France is officially back in recession (two consecutive quarters of negative growth) after its economy shrank by 0.2% in the first quarter of 2013, the same figure for the last quarter of 2012. This is France’s second recession in four years.

Haiku Herman

The haikus keep coming from European Council president Herman Van Rompuy:

Light on the sea is
Brighter than on land.
Heaven is breathing.

Preparations are going smoothly after the German Bundestag ratified Croatia’s accession treaty. The approval was the last formal hurdle to jump before they join on 1 July.

The EU budget has gained some extra funding through the qualified majority voting system. The UK had previously rejected proposals for €11bn for unpaid bills. The extra funding for the bills was a precondition for the finalisation of the 2014-2020 budget.

Angela Merkel has announced that she doesn’t have a ‘bosom friendship’ with French President Hollande, but their working relationship is nevertheless ‘strong and crucial for Europe’.

Nigel Farage declared protesters in Scotland as ‘fascist scum’ and ‘deeply racist’ towards the English during his visit last week. A protest was organised whilst Farage visited a pub in Edinburgh, begun by about 20 students. According to a blog by one of the protestors, Farage ignored their questions on the racist nature of their policies, left the pub and tried to get into a taxi, although two of the drivers refused his fare. An SNP spokesman declared that Farage had ‘lost the plot’.

Tweet of the week

This week’s advice comes from the excellent legal writer, tweeter and barrister, Gary Slapper (@garyslapper), who in times of revision paranoia provides uplifting and interesting tweets about ‘THE POWER OF LAW’:

THE POWER OF LAW #17: European law: Pervades UK life. EU law applies as much to UK as UK law applies to Wales. In top 3 ingredients of UK law.

A worthy follow and fellow.

The absol-EU-tely must read article of the week

This week’s article by the ‘Public Law for Everyone’ blog is an explanation of the public law consequences of the EU referendum bill, if it does manage to become law… Parliament not binding its successors? Anyone remember that?

‘It is elementary constitutional law that legislation enacted by Parliament can also be repealed by Parliament.’

Coming next week
  • Special report: Euroscepticism — which other countries hate the EU?
  • New profile series on the major European leaders: ‘What’s the deal with… Angela Merkel?’
  • And much more…

The ELB is written by Associate Editor of TSL, Natalie Hearn. Law Graduate from the University of Birmingham, prospective EU Law Masters student at UCL, currently teaching English in Japan. Follow her on Twitter: @ninjahearn

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