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European Law Blog #14 – Commission Takes Legal Action

European Law Blog #14 – Commission Takes Legal Action

Welcome to this week’s European law blog with all the legal and political news from the EU. The week has been busy for both the ECJ and the Commission, with the former deciding an important case involving terrorist regulations and the latter taking separate legal actions against both the UK and Spain for possibly breaching their obligations. Also featured is this week’s European news, the article of the week on the ongoing battle between French and English in the EU and a profile on the French President Francois Hollande. Allez, allez!

Case C‑239/12 P Abdulbasit Abdulrahim v Council and Commission

ECJ decides on alleged terrorist’s ability to annul regulation

The ECJ was asked to decide this week on a case for the annullment of Council Regulation (EC) No 881/200 that, inter alia, froze the economic assets of Mr Abdulrahim due to his believed connection with terrorist organisations in the UK. The case had been previously brought to the General Court who had decided that they no longer had to adjudicate on the issue because the applicant had been removed from the sanction list. This was in line with previous decision of the ECJ. The claimant appealled against the decision to the ECJ because he wanted to continue the annulment of the regulation despite his removal from it.

The applicants name was sanctioned by the UN. Image courtesy of Scazon on Flickr under the Creative Commons Licence

The applicant’s name was sanctioned by the UN.
Image courtesy of Scazon on Flickr under a Creative Commons Licence

Thus, the question became: can those who have had their name removed from sanction lists still have an interest in their case for annulment of the relevant regulation?

  • Regulation 881/200 imposed ‘certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida [sic] network and the Taliban’.
  • This included the freezing of all economic assets (article 2), the prohibition of assistance to listed persons, including supplying them with arms (article 3), and compelling the handing over of information about the listed persons (article 5).
  • The applicant’s name was added to the sanction list in 2008.
  • The reasoning was listed as his involvement in fundraising and holding senior positions in in the Libyian Islamic Fighting Group (LIFG).
  • The action was for the annullment of the Regulation and an action for compensation.
  • The applicant argued that the reasons for his listing and the evidence for his inclusion were never explained to him. He also argued that the freezing of his assets was disproportionate and denied the link between the LIFG and Al-Qaeda, and in any event he had ceased association with the LIFG in 2001, seven years before his name was added to the list.
  • For reasons not listed in the judgment, the applicant’s name was removed from the sanctions list in 2010.
  • The decision of the General Court held that the action was now ‘devoid of purpose’ as his name was removed from the list in the middle of the action.
  • Advocate-General Bot agreed with the position of the applicant, so he can establish his listing as unlawful.

Held, that the court acknowledged that the applicant’s action in the proceedings does not disappear because his name was removed from the list. The court held, in fact, that he continued to have an interest because of the need to put his position back to what it was previously before the regulation (Simmental) and to encourage amendments to the regulation, in order to prevent the alleged unlawful acts in the future. Drawing a parallel with competition law, the court noted that in these cases where an undertaking (e.g. a company) has fulfilled its obligations, it nevertheless still has an interest in pursuing damages. The court also held that, because of the considerable effect the measures have had on the applicant, this means that an interest is retained. The judgment can be found here.

Preliminary ruling procedure: C-368/12 Adiamix

Do your duty, national courts

Under the preliminary rulings procedure (Article 267 TFEU), the national court must refer to the ECJ if it is argued that a instrument of EU law is invalid. In this judgment, it was emphasised that the national courts must also provide their reasons for the alleged invalidity when referring it to the ECJ; they cannot simply refer the case and not comment on the issue of invalidity.

Commission action #1: UK and migrant benefits

Right to reside test is not right
Image courtesy of micora on Flickr under a Creative Commons Licence

Image courtesy of micora on Flickr under a Creative Commons Licence

As expected, there has been much hoohah about this proposed legal action by the European Commission. The action alleges that, under UK rules, migrants are discriminated against under benefits rules in comparison to the treatment of UK nationals. As OpenEurope points out, the details surrounding the action are a bit hazy. The action pertains to the UK ‘right to reside’ test that must be passed by applicants before they are eligible to apply for benefits. This means that UK citizens pass it automatically, whereas EU migrants must provide evidence in order to pass it, thus creating a barrier to free movement.

Under Regulation No 883/2004, benefits must be available to all EU citizens equally, but those citizens must be ‘habitually resident’ in the Member State in order to qualify. In the UK, in order to claim income-based jobseekers allowance (as opposed to contribution-based allowance), one must satisfy the ‘Habitual Residence test’ that has two limbs: (1) a legal right to reside and (2) an objective assessment of habitual residence. So, for example, even if they were a UK resident but had lived abroad for ten years, then although they would have satisfied the first limb, they wouldn’t be considered habitually resident. The first limb can be satisfied if the applicant is either: a British citizen; has right of abode in the UK; has leave to remain in the UK under UK Immigration rules; or has a right to reside under EU law. It is this ‘right to reside’ element that the Commission believe to be unlawful under free movement rules. The full details are expected on Thursday.

Commission action #2: Spain and the European health insurance card

Free healthcare entitlement under threat
Image courtesy of Magnus Akselvoll on Flickr under the Creative Commons Licence

Image courtesy of Magnus Akselvoll on Flickr under a Creative Commons Licence

The Commission has also launched an investigation with the possibility of legal action against Spain in response to their refusals to accept the European Health Insurance Card (EHIC) that ensures free health care across the EU. The EHIC ensures that free healthcare is provided by hospitals across the EU and the bills are picked up by the NHS, or the Member State’s respective health provider. However, it is alleged that some Spanish hospitals have refused to accept this and suggested that the cards are invalid if the patient has travel insurance. There have also been reports of patients believing their treatment to be free under the scheme, but finding out later that their insurers have been billed for it. In the press release, the Commission stated their concerns and have requested information from Spain on the number of complaints they have received regarding this issue.

European news round-up

The Work and Pensions Secretary Iain Duncan Smith (IDS to his friends) has suggested a ‘red card’ for national parliaments in order to block EU laws that they don’t agree with. Currently Member States have a ‘yellow card’ system that can be used to make the European Parliament reconsider law.

What’s this ‘Schengen Area’?

The Schengen free movement area was established in 1995 and is an agreement between 22 Member States and 4 European Free Trade Association (EFTA) states to allow EU citizens to move freely between them without the need for passport or immigration controls for international travel purposes. The UK and Ireland have obtained opt-outs from the agreement.

The European Commission President Jose Barroso has announced that some countries can ease their austerity measures. France, Spain, Poland, Portugal, the Netherlands and Slovenia have been given more time to complete their austerity plans, meaning the pace of the cuts can slow down. In relation to the UK, the EU has said that more should be done to encourage the property market and spending on transport should increase.

Amendments to the Schengen free movement area have been made, allowing temporary checks and controls to be introduced when there is a security risk.

Guidelines have been introduced in order to make the European elections more ‘European’, including greater transparency and announcing candidates well in advance of the elections.

The leader of the far-right National Front party and MEP Marine Le Pen may lose her immunity in order to face charges of racism from 2010. As an MEP, Le Pen has enjoyed legal immunity. However, the European Parliament legal committe has voted for her to lose this and she faces charges for likening the sight of Islamic prayers on the streets of France to the Nazi occupation of the country during the Second World War.

The liberal leader in the European Parliament and the former prime minister of Beligum, Guy Verhofstadt, has suggested that a new round of fundamental treaty changes should be undertaken after the 2014 European elections in order to prepare the EU for ‘long term cohesion’.

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

An ongoing issue in the EU world is the battle between the use of French or English as the official language. This week the debate continues with an interesting argument from the excellent LSE EU law blog, EUROPP, suggesting that France has ‘entirely failed’ in prevented English becoming the lingua franca and the effect of the accession of Denmark in the promotion of English:

‘France’s attitude regarding the position of the French language in the EU is a good example of its savoir-faire.’

What’s the deal with…François Hollande?

Continuing our profile series on the political leaders in the EU, this week we turn to the apparently hilarious François Hollande:

Image courtesy of jmayrault on Flickr under the Creative Commons licence

Image courtesy of jmayrault on Flickr under a Creative Commons Licence

Name: François Gérard Georges Nicolas Hollande
Age: 58
Nationality: French, born in the north-west city of Rouen.
Education: Part of the so called ‘Paris elite’ who graduate from the prestigious civil servant training school École nationale d’administration, he had previous been educated at Hautes études commerciales de Paris, the country’s leading business school, and the Institut d’études politiques de Paris, a social sciences school.
Notable previous occupations: Mayor of Tuille from 1988 to 1993
Political career journey:

  • Joined the Socialist Party in 1979.
  • Junior economic adviser during President Mitterrand’s time in office.
  • Member of Parliament since 1988, respresenting the region of Correze.
  • Became party leader in 1997, standing down in 2008 amid former President Sarkozy’s defeat of his then-partner Segolene Royal in the 2007 presidential election, it turns out he was having an affair with a political reporter, which caused embarrassment to the party.
  • Despite this, Hollande was seen as the party’s best bet for the 2012 presidential election.
  • Won the 2012 election defeating Nicolas Sarkozy with 51% of the vote.

Key moments: Hollande’s proposal of a 75% income tax rate for earnings above €1million led to a public row with eccentric film star Gerard Depardieu; openly challenged Angela Merkel’s austerity policies leading to strained political relations between the two.
Fun fact: The office of the French president also holds the position of Co-Prince of Andorra, a landlocked nation between France and Spain which shares a French and Spanish political leader; he’s also published several academic books on poltical theory.

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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