Courts back in action


EU LAW UPDATES:RECENT WEEKS have seen the emergence of the European institutions from the summer lull.

One development saw the European Commission announce on August 29th that it is to open an in-depth merger control investigation into the proposed acquisition of Aer Lingus by Ryanair. This investigation, which may last until January, follows the Commission’s decision in June 2007 to prohibit a previous proposal by Ryanair to acquire Aer Lingus.

On September 13th, in Protégé International, the General Court accepted the Commission’s broad discretion in the manner in which it deals with complaints alleging competition law breaches. The court held that in determining whether or not a complaint has sufficient “community interest” to warrant a case being pursued, the commission’s discretion is effectively limited only by its obligations to avoid manifest error and not to misuse its powers. However the court makes no reference to its 2010 judgment in CEAHR v Commission, which had been interpreted as adopting a more restrictive approach to the commission’s discretion in this regard.

The European Court of Justice examined the right of dependent extended family members to enter an EU member state, and reside with EU citizens, in Secretary of State v Rahman delivered on Sept 5th. The extended Bangladeshi family members of Mr Rahman, a Bangladeshi citizen married to an Irish citizen in the UK, sought to rely on the provisions of Article 3(2) of Directive 2004/38. The court considered the obligation to “facilitate”, in accordance with national legislation, entry and residence for “any other family members” who are dependants of a EU citizen.

The court held that in relation to “other family members” (as opposed to direct family members defined in Article 2 (2) of the directive), such applicants are not entitled to rely on the provision directly, member states enjoy a broader margin of discretion and there is no obligation to grant an automatic right of entry and residence. Member states must ensure that such persons receive a “decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons”.

Factors to be taken into account include the extent of dependency and the degree of the relationship, and all such decisions must be subject to the right of the applicant to judicial review.

Labels on wine bottles often feature laudatory statements as to the merits of the wine. However the Court of Justice’s judgment of September 6th in Deutsches Weintour may result in greater legal attention being paid to such claims. The court considered that a description of a German wine as “easily digestible”, accompanied by a reference to the wine containing a reduced content of substances frequently perceived by consumers as being harmful (in this case reduced acidity levels), amounted to a “health claim” of the type prohibited in respect of alcoholic beverages.

Donogh Hardiman and Genevieve Burke are committee members of the Irish Society for European Law

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