Posts tagged ‘EU Law’
Residency Requirement Upheld for Marijuana Cafes in the Netherlands; Case C-137/09
Last year, the European Court of Justice (“ECJ”) released its decision in Case C-137/09, Josemans v. Burgemeester van Maastricht, concerning restrictions on who is permitted to patronize restaurants and cafes which sell marijuana in the Netherlands.[1] While the Netherlands generally prohibits the possession of marijuana, certain establishments are permitted to sell small amounts of the drug so long as they comply with certain regulations. Title III of the Treaty Establishing the European Community (“EC Treaty”) establishes the fundamental right of the free movement of citizens of each Member State throughout the European Union (“EU”), meaning that the Dutch restaurants and cafes which sell marijuana have become a magnet for those living in states where recreational marijuana use is more strictly prohibited.[2] In order to combat the “public nuisance” caused by an influx drug tourists, the municipal council of Maastricht imposed a requirement that cafes selling marijuana only allow Dutch residents to enter their establishments; Marc Michel Josemans, the owner of “Easy Going” coffee shop, brought a suit against the municipal council, claiming that the requirement violated, inter alia, Articles 12, 18 and 49 of the EC Treaty.
Article 12 of the EC Treaty (now Article 18 of the Treaty on the Functioning of the European Union) outlines the general prohibition on Member States enacting laws which discriminate on the basis of nationality. The ECJ has interpreted the non-discrimination provisions of…
Healthy (or insignificant) minimum price-fixing differences in EU and North America
Unfortunately, this post merely adds to the voluminous commentary on different approaches to resale price maintenance (“RPM”)–minimum price-fixing in particular–between the EU and North America. Since EU and US changes in RPM rules in 2010 and 2007 respectively, commentators have been clawing into the topic, before judges get the chance to hammer into these different approaches. Some argue for similarity, but I argue that the difference is (1) healthy and (2) in practice unimportant.
Before addressing those arguments, a little background.
What is RPM? RPM is when a manufacturer controls the prices at which distributors sell goods. Minimum price-fixing is where the manufacturer sets the lowest price at which distributors can resell goods.
Is minimum price-fixing anti-competitive? The lawyer’s response: “it depends.” Minimum price-fixing has anti-competitive effects when manufacturers or distributors (a) collude to police cartels or (b) exclude competitors by eliminating their ability to compete by lowering prices. Minimum price-fixing can however have pro-competitive effects when used to help introduce products, encourage distributor promotions, ensure uniform distribution, enhance experience-related products, and reduce free-riding.
How does EU law approach minimum price-fixing? EU law is not a friendly venue for minimum price-fixing. Article 101(1)(a) of the Treaty on the Functioning of the European Union (“TFEU”) broadly forbids price-fixing. The EU Block Exemption Regulation 330/2010 includes minimum price-fixing as…
Habitual Residence in the EU?
Habitual residence faces considerable uncertainty in the EU. Regulation 2201/2003—also known as Brussels IIbis (“BIIbis”)—establishes jurisdiction in parental responsibility disputes among EU Member States. (Here is an overview of EC Regulation 2201/2003). Habitual residence is the key factor in determining jurisdiction. This post analyzes a recent ECJ case and then contrasts its holdings with two subsequent UK cases.
a. Habitual Residence in the ECJ
The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far. The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency. Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday. While still in Finland in October 2005, they applied for public housing.
In November, a local welfare agency removed the children to a childcare unit. The mother unsuccessfully challenged this action in a Finnish court. On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland. The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and…
