Cosmetics tested on animals banned in the EU – or are they?

animal-experimentation-rabbit-draize-eye-irritacy-testsR (on the application of the European Federation for Cosmetic Ingredients) v Secretary of State for Business, Innovation and Skills and the Attorney General, British Union for the Abolition of Vivisection and the European Coalition to End Animal Experiments (intervening)  [2014] EWHC 4222 (Admin) 12 December 2014 – read judgment

Conscientious shoppers who check the labelling of shampoos and other cosmetic products for the “not tested on animals” legend may not be aware that there is in place an EU Regulation (“the Cosmetics Regulation”), enforceable by criminal sanctions, prohibiting the placing on the market of any product that has been tested on laboratory animals. Any comfort drawn from this knowledge however may be displaced by the uncertainty concerning the status of cosmetics whose ingredients have been tested on animals in non-EU or “third” countries. (Incidentally the Cruelty Cutter app is designed to enable consumers to test, at the swipe of a smart phone, whether the product they are contemplating purchasing has been tested on animals.)

This case concerned the question of whether, and if so in what circumstances, that Regulation would prohibit the marketing of products which incorporate ingredients which have undergone testing on animals in third countries. It was a claim for judicial review seeking declarations relating to the marketing of cosmetic ingredients which had been thus tested. Continue reading

Does the EU Rights Charter apply to private disputes? Sometimes, sometimes not…

European-Union-Flag_1Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement

The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.

This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year. Continue reading

EU employment rights law trumps diplomatic immunity – what next?

European-Union-Flag_1Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity) [2013] UKEAT 0401_12_0410 4 October 2013 – read judgment

These appeals, heard at the same time, raise the question whether someone employed in the UK by a foreign diplomatic mission as a member of its domestic staff may bring a claim to assert employment rights against the country whose mission it is, despite being met by an assertion of State Immunity under the State Immunity Act 1978. The EAT regarded itself bound by the supremacy of EU law to disapply the SIA, despite the fact that it had no jurisdiction to do so under the 1998 Human Rights Act.

This is the first time that the full force of the rights contained in the EU Charter of Fundamental Rights and Freedoms has made itself felt in a domestic dispute between private parties (although the embassies themselves are state institutions, as an employment dispute the matter is one of private law only). If upheld on appeal, this ruling will have consequences that extend far beyond the somewhat esoteric area of the immunity of diplomatic missions, and will make the effect of the Human Rights Act look puny by comparison (as pointed out by Joshua Rozenberg  in his post on this case). Continue reading

Internet trolls and why Strasbourg doesn’t want to get involved

2879775-internet_trollDelfi AS v Estonia (Application no. 64569/09)  10 October 2013 – read judgment

This case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. The following summary is based on the Strasbourg Court’s press release.

The applicant company owns one of the largest internet news sites in Estonia. In January 2006, Delfi published an article on its webpage about a ferry company. It discussed the company’s decision to change the route its ferries took to certain islands. This had caused ice to break where ice roads could have been made in the near future. As a result, the opening of these roads – a cheaper and faster connection to the islands compared to the ferry services – was postponed for several weeks. Below the article, readers were able to access the comments of other users of the site. Many readers had written highly offensive or threatening posts about the ferry operator and its owner. Continue reading

No standing for the Inuit in Luxembourg

ipTteC6iztnEInuit Tapiriit Kanatami et al v. European Parliament, CJEU, 3 October 2013 (read judgment), following Advocate General Kokott, 17 January 2013, read opinion and my post

This important case is all about “standing” before the EU courts, namely the ability to complain about some EU act that affects you. Lack of standing means that even if a measure was wrong and unlawful, you cannot get your foot in the door of the court. Domestic rules are quite relaxed, though proposals by Government to make it more difficult to sue Government and other public authorities are currently being consulted upon. But you cannot say that an EU law is unlawful without going to Luxembourg.

The EU Courts have always been very restrictive about the circumstances in which an individual can do so. A brief blip (C-50/00 UPA) a few years ago by a UK Advocate-General suggesting that things be done differently was squashed by the Court. And since then it has been one-way traffic in the EU Courts, brushing off criticism from NGOs and indeed the Aarhus Convention Compliance Committee in 2011 (see here). For a good summary of the EU case law up to 2011, see the ACCC at [20]-[31]

Recent Treaty amendments in Lisbon have, it will be seen, made little difference to the result.

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Surrogacy and maternity rights

Pregnant_woman_silhouette.pngC-363/12: A Government Department and the Board of Management of a Community School – read AG Wahl’s opinion

Case C‑167/12 : C.D. v S.T. – read AG Kokott’s opinion 

Two opinions from Luxembourg on exactly the same issue, with diametrically opposed conclusions. AG Wahl (male) says, in brief, that the Pregnancy Workers Directive does what it says on the tin. It does not apply to non-pregnant employees, even though one of these might be an “intended mother” i.e. a woman who for medical reasons cannot carry a pregnancy to term, who has commissioned a surrogacy.  AG Kokott (female)  concludes firmly that the Pregnancy Workers Directive was designed to protect the relationship between mothers and their unborn or newborn, whether naturally produced or arranged by surrogacy.  These opinions were published on the same day, with no mention in either of the other case. We can only conclude that the AGs read each other’s drafts, and decided to go to press with them together, leaving the CJEU to reconcile them in some way or another.

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What is a “public authority” for the purposes of environmental information?

water_tapFish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon

In this most recent case concerning access by private individuals to environmental information held by public authorities,  the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had  been addressed to private companies which manage a public service relating to the environment.  The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).

Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law. Continue reading