International Courts

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Caribbean Court of Justice (CCJ): In the court of Sir Dennis Byron, President and Honourable Justice Saunders, Wit, Hayton, Anderson, Rajnauth-Lee and Barrow JJ. two death penalty cases from Barbados were addressed together as the appeals challenged the murder convictions of each of the men and the constitutionality of the mandatory death sentence for murder in Barbados. The Court took an epoch-making decision in light of striking the mandatory death penalty and stated that Section 2 of the Offences against the Person Act was unconstitutional because it provided for a mandatory sentence of death.

CCJ took a full-scale analysis of the state of the mandatory death penalty in Barbados for murder and found that it was undeniable that the nation, through its actions, had acknowledged that it had an obligation to remove such mandatory sentence under Section 2 of the Offences against the Person Act.

The mandatory death penalty had been found to be arbitrary in nature by international human rights bodies such as the International Covenant and Civil and Political Rights Committee (“ICCPR”) and the Inter-American Commission on Human Rights (“IACHR”) divesting individuals of the most fundamental human rights.

The CCJ held that Section 11 of the Constitution, which gives the right to protection of the law, was enforceable. Further, found that the mandatory death penalty breached the stated right as it deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime.

The Court by majority declared that Section 2 of the OAPA is inconsistent with sections 11 (c), 12 (1) 15(1) and 18(1) of the Constitution of Barbados to the extent that it provides for a mandatory sentence of death.

Therefore, CCJ ordered that the appellants be expeditiously brought before the Supreme Court for resentencing.[Jabari Sensimania Nervais v. Queen and Dwayne Omar Severin v. Queen (2018) CCJ 19 (AJ), decided on 27-06-2018]

 

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International Court of Justice ( ICJ): On 13 June 2016, Equatorial Guinea instituted proceedings against France in ICJ with regard to a dispute concerning the immunity from criminal jurisdiction of the Vice-President of the Republic of Equatorial Guinea, Mr Teodoro Nguema Obiang Mangue, and the legal status of the building which “houses the Embassy of Equatorial Guinea”, located at 42 Avenue Foch in Paris. Equatorial Guinea sought to find the Court’s jurisdiction, first, on Article 35 of the United Nations Convention against Transnational Organized Crime (“Palermo Convention”) and, second, on Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes (“Optional Protocol to the Vienna Convention”). France raised preliminary objections to the jurisdiction of the Court.

Mr Teodoro was fined and convicted for the offences like money laundering and misappropriation of public funds of his country of origin and investing it in France by a French Tribunal. As it was found on investigation that the building at 42 Avenue Foch was bought by him in pursuance of these offences, it was ordered to be attached. However, Equatorial Guinea claimed that the building to be part of its Diplomatic Mission in France. The attachment and his term were suspended after the Equatorial Guinea approached ICJ in this regard.

The Court observed that Equatorial Guinea’s claims based on principles of sovereign equality and non-intervention in the domestic affairs of other States (Article 4 of the Palermo Convention) were not valid as the Court considered that the said Article does not refer to the customary international rules, including State immunity, that is derived from sovereign equality but refers to the principle of sovereign equality itself. The Court gave the expression “sovereign equality” its ordinary meaning while observing that none of the provisions of the Palermo Convention relates expressly to the immunities of States and State officials. Further, it found this unrelated to the object and purpose of the Convention, set out in Article 1. Therefore, the Court concluded that the aspect of the dispute relating to the immunity of the Vice-President and the building from measures of constraint as State property did not concern the interpretation or application of the Palermo Convention and hence, Court lacked jurisdiction in relation to this aspect.

The Court rejected Equatorial Guinea’s claims based on the Palermo Convention concerning France’s alleged overextension of its criminal jurisdiction over predicate offences associated with the crime of money laundering.

Finally, Court noted that the Parties disagreed on the question whether the building constituted part of the premises of the Mission and was thus entitled to the treatment afforded for such premises under Article 22 of the Vienna Convention. Court found that this aspect of the dispute fell within the Vienna Convention and, consequently, it had jurisdiction under the Optional Protocol to the Vienna Convention to adjudge this aspect. [Immunities and Criminal Proceedings, Republic of Equatorial Guinea v. French Republic, No. 163, decided on 06-06-2018]

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The Republic of Korea is adopting WIPO’s ground-breaking “artificial intelligence”-based translation tool for patent documents, making it the first member state to use WIPO Translate in an important advancement for the use of machine learning in the technology-heavy patent sector.

WIPO Translate uses cutting-edge neural machine translation technology to render highly technical patent documents into a second language in a style that more closely mirrors common usage.

The technology takes into consideration the specific domain when translating a particular sentence thereby yielding more accurate translations.  This is unique in the world of patent translations.

WIPO’s PATENTSCOPE database now fully integrates this new technology, making translations of patent documents retrieved through PATENTSCOPE more readily accessible.

Neural-Machine Translation Technology:

It is based on huge neural network models that “learn” from previously translated sentences. The specificity of neural machine translation (compared to previous “phrase-based” statistical methods) is that it produces more natural word order, with particular improvements seen in so-called distant language pairs, like, Korean-English, Japanese-English or Chinese-English.

[Source: WIPO]

Press Release

Geneva, May 24, 2018

PR/2018/818

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International Court of Justice (ICJ): Qatar on 11th June 2018 instituted proceedings against the United Arab Emirates (UAE) at the International Court of Justice (ICJ), with regard to alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (CERD), to which both States are parties. Qatar contended that the UAE has enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin and they were still in effect, resulting in alleged human rights violations. According to Qatar, on and following 5 June 2017, the UAE expelled all Qataris within its borders; prohibited them from entering or passing through the UAE; closed UAE airspace and seaports to Qatar and Qataris; interfered with the rights of Qataris who own property in the UAE; limited the rights of Qataris to any speech deemed to be in support of or opposed to the actions against Qatar; and shut down the local offices of Al Jazeera Media Network, and blocked the transmission of Al Jazeera and other Qatari media outlets. Qatar claimed that these measures interfered with rights of Qataris to marriage and choice of spouse, freedom of opinion and expression, education and work.

As basis for the Court’s jurisdiction, Qatar invoked Article 36, paragraph 1, of the Statute of ICJ and Article 22 of the CERD. Qatar requested the ICJ in its own right and as parens patriae of its citizens to adjudge and declare that the UAE has violated its obligations under Articles 2, 4, 5, 6, and 7 of the CERD.

ICJ will hold public hearings devoted to the Qatar’s request for the indication of provisional measures from 27 to 29 June 2018. The blockade started on June 5, 2017, when the UAE, Saudi Arabia, Bahrain and Egypt severed diplomatic and trade ties with Doha and expelled Qatari citizens. The other blockading countries, Saudi Arabia, Egypt and Bahrain, are not signatories to this treaty.

[Source: ICJ Press Release]

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International Court of Justice (ICJ): The ICJ will hold public hearings devoted to Preliminary Objections raised by the United States in the case concerning Certain Iranian Assets [Islamic Republic of Iran (Iran) v. United States of America (USA)], from 8 to 12 October 2018, at the Peace Palace in The Hague, the seat of the Court.

Iran instituted proceedings on 14 June 2016 against the USA before ICJ with regard to a dispute concerning violations by the USA of the Treaty of Amity, Economic Relations, and Consular Rights between them. It was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957” (hereinafter “the 1955 Treaty”). The 1955 Treaty was signed with the then regime of the Shah long before he was ousted in the 1979 Islamic Revolution. But the US severed bilateral diplomatic ties with Iran in 1979 after 52 Americans were taken hostage in the US embassy in Tehran. They have not yet been fully restored.

The case was filed just weeks after the US Supreme Court ruled in April 2016 that $2 billion in frozen Iranian assets should be paid to about 1,000 survivors and relatives of those killed in attacks blamed on Iran. These attacks included the 1983 bombing of a US Marine barracks in Beirut and the 1996 Khobar Towers bombing in Saudi Arabia. According to Iran, US courts have awarded total damages of over $56 billion against it in respect of its alleged involvement in various terrorist acts mainly outside the US.

[Source: The New Indian Express]

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European Court of Justice (ECJ): The ECJ has declared that Malta has failed to fulfil its obligations under EU law by adopting a certain derogation regime not complying with the strict conditions laid down by the Directive on the conservation of wild birds.

Directive 2009/147/EC of European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (Directive) provides that Member States must take the requisite measures to establish a general system of protection for several bird species. Nevertheless, Member States may derogate from that obligation where there is no other satisfactory solution, to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers. In 2014 and 2015, Malta adopted several measures authorising the capture of seven species of finches by means of traditional nets (‘clap-nets’) to benefit from the derogation laid down in the Directive. The European Commission considered these measures not meeting the conditions of the Directive and therefore approached ECJ.

The Court ruled that measures adopted by Malta did not comply with the Directive since they did not contain any reference to the absence of another satisfactory solution. The Court recalled its case-law WWF Italia, C-60/05, EU:C:2006:378 according to which the Member States may authorise actions affecting the protected species only on the basis of decisions containing a clear and sufficient statement of reasons which refers to the conditions of the Directive. Court further noted that the minutes of the meetings of the Ornis Committee cited by Malta did not reveal any in-depth assessment of alternative solutions. The Court determined that Malta has not complied with the condition that derogation must concern only ‘small numbers’ of birds as derogation did not ensure the maintenance of the population of the species concerned at a satisfactory level. In that regard, the Court noted in particular a 2007 study by NGO BirdLife Malta and defects in Malta’s assessment of ‘reference population’.

The Court further remarked that the condition of trapping in small numbers was not met and recreational trapping of birds could not be considered judicious. Additionally, the Court considered that the condition that only the selective live-capturing of finches can be permitted was not met either by the non-selective nature of the method of capturing using nets. Finally, the Court found that Malta has not adduced evidence that the derogation at issue was used under strictly supervised conditions as the density of license holders and registered trapping stations in Malta was very high, and merely 23% of hunters were subject to individual checks. To corroborate this, the Court mentioned trapping inside ‘Natura 2000’ sites.

After making these observations, ECJ concluded that the Republic of Malta has failed to fulfil its obligations under Article 5(a) and (e) and Article 8(1) of Directive read in conjunction with Article 9(1) of that directive. [European Commission v. Republic of Malta, Case C-557/15, order dated 21-06-2018]

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General Court of European Union : The General Court confirmed the decision of the European Parliament to recover from Marine Le Pen almost €300,000 for the employment of a parliamentary assistant, on the ground that she did not prove the effectiveness of that assistant’s work.

Ms Marion ‘Marine’ Le Pen was a Member of the European Parliament (MEP) from 2009 to 2017. By decision of 5 December 2016,  Parliament decided that, for the period between December 2010 and February 2016, an amount of €298,497.87 had been unduly paid to Ms Le Pen in respect of parliamentary assistance and had to be recovered from her. That amount corresponds to the payments made by Parliament for a staff member engaged by her as a local parliamentary assistant from 2010 to 2016. Parliament complained that she did not provide evidence of the existence of an activity of the local assistant linked actually, directly and exclusively to her mandate.

Ms Le Pen requested the General Court to annul the decision taken by Parliament. General Court took the following view while confirming Parliament’s recovery decision and rejecting in entirety Ms Le Pen’s arguments:

1. That the Secretary-General of Parliament is competent to adopt decisions to recover sums unduly paid pursuant to the Implementing Measures for the Statute of the MEPs and such decision by Parliament does not undermine the independence of MEPs;

2. That she was given due opportunity to argue her point of view, such that her rights of defence were not breached;

3. That it is for MEPs and not for Parliament to prove that amounts received have been used to cover expenses actually incurred and arising wholly and exclusively from the employment of their assistants;

4. That Ms Le Pen has not been able to prove that her assistant performed actual work for her; and

5. That she was not the subject of discriminatory treatment in view of the fact that she provided no evidence establishing that only MEPs of the Front National have, in the past or at present, been the subject of similar proceedings initiated by Parliament. [Marion Le Pen v. European Parliament, Case T-86/17, order dated 19-06-2018]

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European Court of Justice: ECJ recently provided useful guidelines pertaining to violation of registered geographical indication (GI) violation. The case concerned Michael Klotz who marketed whiskey under the designation ‘Glen Buchenbach’, which was produced by a distillery located in the Buchenbach valley in Swabia (Germany). The Scotch Whisky Association (SWA) took the view that use of the term ‘Glen’ for the German whisky in question infringes the registered geographical indication ‘Scotch Whisky’. They claimed that despite the other information on the label, the term ‘Glen’ is allegedly liable to cause consumers to make an inappropriate connection to the registered GI and, thus, to mislead them. The SWA, therefore, brought an action before the Regional Court, Hamburg, Germany. Regional Court, in turn, asked ECJ to interpret the EU Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89.

Firstly, Court held that for the purpose of establishing that there is ‘indirect commercial use’ of a registered GI under Article 16(a) of Regulation (EC) No 110/2008, the disputed element must be shown to have been used in a form that is either identical to that indication or phonetically and/or visually similar to it. Hence, according to Court, it is not sufficient that that element is liable to evoke in the relevant public some kind of association with the indication concerned or the geographical area relating thereto.

Secondly, the Court opined that under Article 16(b) the decisive criterion for finding there to be an ‘evocation’ of the protected GI is whether, when an average consumer who is reasonably well informed and reasonably observant and circumspect is confronted with the name of the product concerned, the image triggered in his mind is that of the product whose indication is protected and this determined, taking into account any phonetic and/or visual similarity or any conceptual proximity between protected GI and the disputed designation. In making that determination, the referring court, in the absence of (i) any phonetic and/or visual similarity and (ii) any partial incorporation of that indication in that designation, must take account of the conceptual proximity, if any, between the designation and the indication. In such determination, account is not to be taken either of the context surrounding the disputed element, or, in particular, of the fact that that element is accompanied by an indication of the true origin of the product concerned.

Therefore, Court held that under Article 16(c) for the purpose of establishing that there is a ‘false or misleading indication’, account is not to be taken of the context in which the disputed element is used as Regulation’s objectives would be jeopardised if that GI protection could be restricted by the fact that additional information is found alongside an indication which is false or misleading. Now the referring court would decide the case based on the guidelines elucidated by ECJ. [Scotch Whisky Association v. Michael Klotz, [2018] Bus LR 1466, order dated 07-06-2018]

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European Court of Justice: The ECJ recently held that the data protection authority of the Member State in which the administrator has its seat may, under Directive 95/46/EC of the European Parliament and of the Council of 24-10-1995 on data protection (OJ 1995 L 281, p. 31), act both against the administrator and against the Facebook subsidiary established in that Member State.

In this case, a German company operated in the field of education and offered educational services inter alia by means of a fan page hosted on Facebook. Administrators of fan pages could obtain anonymous statistical data on visitors to the fan pages via a function called ‘Facebook Insights’ which Facebook made available to them free of charge under non-negotiable conditions of use.

By decision of 3-11-2011, the Independent Data Protection Centre for the Land of Schleswig-Holstein, Germany as supervisory authority (the authority) within the meaning of Directive 95/46 on data protection, ordered one of the administrators to deactivate its fan page. According to the authority, neither administrator nor Facebook informed visitors to the fan page that Facebook, by means of cookies, collected and processed personal data concerning them. Administrator brought an action against that decision before the Federal Administrative Court, Germany which asked ECJ to interpret Directive 95/46. Administrator argued that the processing of personal data by Facebook could not be attributed to it and it had not commissioned Facebook for that purpose.

ECJ started by observing that it was not disputed that the American company Facebook and, for the EU, Facebook Ireland must be regarded as ‘controllers’ responsible for processing the personal data of Facebook users and persons visiting the fan pages. Next, the Court found that an administrator must be regarded as a controller jointly responsible with Facebook Ireland for the processing of that data. Court observed that administrator takes part, by its definition of parameters (depending in particular on its target audience and the objectives of managing or promoting its own activities), in the determination of the purposes and means of processing the personal data of the visitors to its fan page. Administrator of the fan page can ask for demographic data and request its processing including in terms of age, sex, relationships and occupations, information on the lifestyles and centres of interests of the target audience telling the fan page administrator where to make special offers and organise events and more generally enabling it to target best the information it offers. So, an administrator who makes use and benefits from the associated services of Facebook cannot be exempted from compliance with its obligations concerning the protection of personal data.

In addition, the Court found that the authority was competent, for the purpose of ensuring compliance in German territory with the rules on the protection of personal data, to exercise with respect not only to administrators but also to Facebook Ireland all the powers conferred on it under the national provision transposing Article 28(3) of Directive 95/46. The same provision further entitles it to exercise those powers with respect to Facebook Germany even though it was not responsible for collecting and processing personal data due to division of work. [Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v. Wirtschaftsakademie Schleswig-Holstein GmbH, Case C-210/16, order dated 05.06.2018]

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European Court of Justice: In a ground-breaking ruling, the European Court of Justice has directed all member States to recognize the residency rights of same-sex spouses, even if the State does not allow same-sex marriages.

The case before the ECJ was involved Mr. Relu Adrian Coman, a Romanian national and Mr. Robert Clabourn Hamilton, an American national, who lived together in the United States for four years before getting married in Brussels in 2010. Mr. Hamilton was, however, denied the right of residence in Romania beyond three months, on the ground that he could not be considered in Romania as a ‘spouse’ of an EU citizen as Romanian law does not recognize marriage between persons of the same sex. The couple then approached the Constitutional Court, Romania, which in turn requested the ECJ whether Mr. Hamilton may be considered as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement and must, therefore, be granted a permanent right of residence in Romania.

Court observed that in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex. Such person has right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. This derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38. Further, it noted that recital 31 of Directive 2004/38 inter alia prohibited discrimination on the ground of sexual orientation by the Member States. Court also held that the word ‘spouse’ used in Article 2(2)(a) in definitions in gender neutral. [Relu Adrian Coman v. Inspectoratul General pentru Imigrari and Ministerul Afacerilor Interne, Case C-673/16, dated 12-06-2018]

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European Court of Justice: While deciding upon the issue of access to documents drawn up by Parliament which contain information concerning the positions of the institutions on the ongoing co-decision procedures with particular emphasis on the multicolumn tables drawn up in connection with ‘trilogues’, the 5-Judge Bench of the Court headed by M. Van der Woude, President, held that the work of the ‘trilogues’ constitute a decisive stage in the legislative process which entails exemplary adherence to the public’s right to access that work and the strict application of the exceptions provided for in the regulation regarding public access to European Parliament, Council and Commission documents. Thus the European Parliament must grant access, on specific request, to documents relating to ongoing trilogues.

A ‘trilogue’ is an informal tripartite meeting in which the representatives of Parliament, the Council and the Commission take part. The aim of such exchanges is to reach a prompt agreement on a set of amendments acceptable to Parliament and the Council, which must subsequently be approved by those institutions in accordance with their respective internal procedures. The ‘trilogues’ generally contain four columns: the text of the Commission’s legislative proposal; the position of Parliament as well as the amendments that it proposes; the position of the Council and the provisional compromise text or the preliminary positions of the Presidency of Council in relation to the amendments proposed by Parliament. The applicant Emilio De Capitani requested for access to documents drawn up by Parliament or made available to it which contain information concerning the positions of the institutions on ongoing co-decision procedures. The request related, in particular, to the multicolumn tables drawn up in connection with ‘trilogues’. However Parliament refused to disclose the fourth column taking the view that the fourth column of the documents contains provisional compromise texts and preliminary positions of the Presidency of Council, the disclosure of which would seriously undermine the decision-making process of the institution.

Perusing the facts of the case, the General Court observed that fourth column of trilogue tables concern an ongoing legislative procedure and emphasize that the principles of publicity and transparency are inherent to the EU legislative process and that no general presumption of non-disclosure can be upheld on the basis of the nature of a legislative procedure. It was furthermore observed that if citizens are to be able to exercise their democratic rights, then they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures. The General Court thus annulled the decision of the European Parliament which refused the access of the fourth column of the ‘trilogues’. [Emilio De Capitani v. European Parliament, T-540/15, decided on 22.03.2018]

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European Court of Human Rights: In the matter dealing with validity of the ban on the wearing in public of clothing that partly or totally covers the face under the Belgian law of 1 June 201, the Court held that the ban does not violate the right to respect for private and family life; freedom of thought, conscience and religion given under Articles 8 and 9 of the European Convention on Human Rights, nor does it violate Article 14 that provides for prohibition of discrimination.

Freedom of thought, conscience and religion

The Court said that ban was valid as it sought to guarantee the conditions of “living together. It was explained that under Article 9 of the Convention the State had a broad margin of appreciation to decide whether and to what extent a restriction on the right to manifest one religion or convictions was “necessary”. In adopting the provisions in question, the Belgian State had sought to respond to a practice that it considered to be incompatible, in Belgian society, with social communication and more generally the establishment of human relations, which were indispensable for life in society. The Court also took note of the fact that the decision-making process leading to the ban in question had taken several years and had been marked by comprehensive debate in the lower house of Parliament and by a detailed examination of the various interests by the Constitutional Council.

Proportionality of the restriction

Considering the sanction for non-compliance with the ban under Belgian law that ranges from a fine to a prison sentence, the Court said that the main sanction is the fine, being the lightest penalty and that imprisonment is reserved for repeat offenders and was not applied automatically. Hence, the ban, even though it was controversial and undeniably carried risks in terms of the promotion of tolerance in society, could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.

Prohibition of Discrimination

Explaining that as per Article 14, a policy or measure can be regarded discriminatory is that policy or measure lacked “objective and reasonable” justification, if it did not pursue a “legitimate aim” or if there was no “reasonable relationship of proportionality” between the means used and the aim pursued, the Court said that the law in question had an objective and reasonable justification for the same reasons.

The Court was hearing the plea of 2 Muslim women who contended that they had decided on their own initiative to wear the niqab, a veil covering the face except for the eyes, on account of their religious convictions. One of the women contended that the ban forced her to remove her veil temporarily, being afraid that she might be stopped in the street and then heavily fined or even sent to prison. While the other said that she had decided to stay at home, with the resulting restriction on her private and social life. The judgment was delivered by a 7-judge chamber consisting of President Robert Spano (Iceland), Julia Laffranque (Estonia), I??l Karaka? (Turkey), Nebojša Vu?ini? (Montenegro), Paul Lemmens (Belgium), Valeriu Gri?co (the Republic of Moldova), Stéphanie Mourou-Vikström (Monaco). [Belcacemi and Oussar v. Belgium, Application no. 37798/13, decided on 11.06.2017]

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European Commission: The European Commission fined Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service. The fine is calculated taking in account the duration and gravity of the infringement and in accordance with the Commission’s 2006 Guidelines on fines.

The Commission opened proceedings in November 2010, following a number of complaints by European and US competitors. Various attempts to reach a conclusion by means of commitments failed. This led to two Statement of Objections, they set out the Commission’s preliminary conclusions and a range of additional evidence.

The Commission investigated Google’s market position in general internet search since 2008, and found Google to be dominant in each country since 2008. The Commission noted that “Market dominance is, as such, not illegal under EU antitrust rules. However, dominant companies have a special responsibility not to abuse their powerful market position”. Google has abused its market dominance in general internet search by giving a separate Google product (Google Shopping) an illegal advantage in the separate comparison shopping market. This it has done by giving prominent placement to its own comparison shopping service and demotions to rival comparison shopping services.

The Commission also pointed out that the “decision does not object to the design of Google’s generic search algorithms or to demotions as such, nor to the way that Google displays or organizes its search results pages. It objects to the fact that Google has leveraged its market dominance in general internet search into a separate market, comparison shopping.”

Commissioner Margrethe Vestager, in charge of competition policy, said: “Google has come up with many innovative products and services that have made a difference to our lives. That’s a good thing. But Google’s strategy for its comparison shopping service wasn’t just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors. What Google has done is illegal under EU antitrust rules. It denied other companies the chance to compete on the merits and to innovate. And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation.”

Under the decision, Google must stop its illegal practices concerning its own comparison shopping service within 90 days or face penalty payments of up to 5% of the average daily worldwide turnover of Alphabet, Google’s parent company. It has to respect the simple principle of equal treatment.

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European Court of Justice: The Full Court has opined that the free trade agreement with Singapore could not, in its current form, be concluded by the EU alone, because the EU lacked exclusive competence as regards some of the provisions of the envisaged agreement. Hence, the agreement could, in its current form, be concluded only by the EU and the Member States acting together.

In 2013, the EU and Singapore had initialled the text of a free trade agreement. The agreement was one of the first ‘new generation’ bilateral free trade agreements, which contained, in addition to the classical provisions on the reduction of customs duties and of non-tariff barriers in the field of trade in goods and services, provisions on various matters related to trade, such as intellectual property protection, investment, public procurement, competition and sustainable development. The Commission had submitted a request to the Court of Justice for an opinion to determine whether the EU had exclusive competence enabling it to sign and conclude the envisaged agreement by itself.

The Court was of the opinion that the EU had exclusive competence as to the provisions concerning access to the EU and the Singapore markets for goods and services, public procurement, and energy generation from sustainable non-fossil sources; protection of direct foreign investments of Singapore nationals in the EU (and vice versa); intellectual property rights; anti-competitive activities; and sustainable development. The Court noted that the objective of sustainable development had become an integral part of the common commercial policy of the EU and that the envisaged agreement was intended to make liberalisation of trade between the EU and Singapore subject to the condition that the parties complied with their international obligations concerning social protection of workers and environmental protection.

However, the Court observed that the EU lacked exclusive competence as regards the field of non-direct foreign investment (‘portfolio’ investments made without any intention to influence the management and control of an undertaking) and the regime governing dispute settlement between investors and States. In order for the EU to have exclusive competence in the field of non-direct foreign investment, conclusion of the agreement would have to be capable of affecting EU acts or altering their scope. As that was not the case, the Court concluded that the EU did not have exclusive competence. That conclusion also extended to the rules relating to exchange of information, and to the obligations governing notification, verification, cooperation, mediation, transparency and dispute settlement, as regards non-direct foreign investment. The Court also noted that the regime governing dispute settlement between investors and States also fell within a competence shared between the EU and the Member States, since a regime which removed disputes from the jurisdiction of the courts of the Member States could not be established without the Member States’ consent. [Opinion pursuant to Article 218(11) TFEU, Opinion 2/15, EU:C:2017:376, decided on May 16, 2017]

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International Court of Justice at the Hague pronounced it’s verdict in favour of India. It said that the conditions required to indicate provisional measures are met, hence, it is appropriate to order that Pakistan should ensure that Kulbhushan Jadhav is not executed pending the final decision. The provisional order under Article 41(1) has binding obligation.

On the Jurisdiction of ICJ, the Court said that any reservation made in Bilateral Agreements cannot limit this Court’s jurisdiction under Vienna Convention. The provisions of Bilateral Agreement on Consular Access, 2008 do not expressly limit this Court’s jurisdiction. India has maintained at various times that Kulbhushan Jadhav should be given consular access, however, Pakistan maintained that it will be granted only if India provides assistance. It establishes that the Court has jurisdiction as the acts alleged by India are capable of falling under Article 36(1) of Vienna Convention. The alleged failure by Pakistan to allow communication and access to Kulbhushan Jadhav is enough to fall under provisions of Vienna Convention. Also, Vienna Convention does not exclude the persons accused of acts of espionage. Hence, the Court has prima facie jurisdiction to entertain the plea.

The Court said that the rights invoked by India under Article 36(1) of Vienna Convention are plausible. A link exists between rights claimed by India and the provisional measures being sought. The Court observed that the rights to consular notification and access between a State and its nationals, as well as the obligations of the detaining State to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognized inArticle 36(1) of the Vienna Convention, and that India has alleged violations of this provision.

On Irreparable prejudice and urgency of the matter, ICJ said that as far as that is concerned the mere fact that that Kulbhushan Jadhav might be executed is sufficient to indicate the urgency. Pakistan has indicated that any execution of Kulbhushan Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the Court has given its final decision in the case It is not clear as to when he might be executed. Pakistan has given no assurance that he will not be executed before the Court renders it’s final decision.

India had, on 08.05.2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on 3 March 2016. On 09.05.2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court. Harish Salve and Khawar Qureshi represented India and Pakistan, respectively.

The hearing in the matter took place on 15.05.2017. Read the submissions by India and Pakistan, here.

Click here to read the order of the Court.

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On 10.05.2017, the International Court of Justice at Hague (ICJ) notified that it will hold public hearing on 15.05.2017 in the proceedings initiated by India against Pakistan in the Kulbhushan Jadhav matter.

The hearings will be streamed live on the Court’s website www.icj-cij.org/multimedia, as well as on UN Web TV, the United Nations online television channel. The press release also mentioned that hearings will also be covered by the United Nations television broadcasting service (UNifeed, New York).

India had, on 08.05.2017, initiated the proceedings before ICJ against the execution of the death sentence imposed upon an Indian National Kulbhushan Jadhav, alleging that Pakistan kidnapped Kulbhushan Jadhav from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan on 3 March 2016. On 09.05.2017, Judge Ronny Abraham, President of the ICJ  stayed the execution of Kulbhushan Jadhav under Article 74, paragraph 4, of the Rules of Court.

To read the full text of ICJ’s press release, click here

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European Court of Human Rights:  In a land mark judgment, the Fourth Section of ECHR  has ruled that     mass surveillance of citizens is illegal and that the Hungarian Government had violated Article 8 of the Convention     for the Protection of Human Rights and Fundamental Freedoms  (right to respect for private and family life, home and correspondence) due to its failure to include “sufficiently precise, effective and comprehensive” safeguards that would limit surveillance to only people it suspected of crimes. The case concerned Hungarian       legislation on secret anti-terrorist surveillance introduced in 2011. However, the Court was not convinced that it provided sufficient safeguards to avoid abuse. Notably, the scope of the measures could include virtually anyone in Hungary, with new technologies enabling the government to intercept masses of data easily concerning even persons outside the original range of operation. Furthermore, the ordering of such   measures was taking place entirely within the realm of the executive and without an assessment of whether interception of communications was strictly necessary and without any effective remedial  measures, let alone judicial ones, being in place.

A specific Anti-Terrorism Task Force was established within the Hungarian Police Force as of  January 1, 2011. Its competence is defined in Section 7/E of Act No. XXXIV of 1994 on the Police, as amended by Act No.    CCVII of 2011. Under this legislation, the task force’s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned.  A Minister of the government  could approve a police request to search people’s houses, mail, phones and laptops if they sought to protect national security.

The applicants, Hungarian nationals worked for a non-governmental watchdog organisation which was critical of the government and  had complained that they could potentially be subjected to unjustified and disproportionately intrusive measures within the framework of “Section 7/E (3) surveillance”,   in particular for want of judicial control. They also complained that their exposure to secret surveillance without judicial control or remedy breached their rights under Article 6 (right to a fair hearing/access to court) and  Article 13 (right to an effective remedy) read in conjunction with Article 8.

Observing  that the legislation directly affected all users of communication systems and all homes, the Court observed  with serious concern that the notion of “persons concerned identified … as a range of persons” might   include indeed any person and be interpreted as paving the way for the unlimited surveillance of a large number of citizens. The Court held:

“Given that the scope of the measures could include virtually anyone, that the ordering is taking place entirely within the realm of the executive and without an assessment of strict necessity, that new technologies enable the Government to intercept masses of data easily concerning even persons outside the original range of operation, and given the absence of any effective remedial measures, let alone judicial ones, the Court concludes that there has been a violation of Article 8 of the Convention.”

The Court said the Hungarian Government should be required to interpret the law in a narrow fashion and “verify whether sufficient reasons for intercepting a specific individual’s communications exist in each case”. Every individual case must be looked at carefully and a decision made on each.

In a seperate concurring opinion, Pinto De Albuquerque, J. reiterated that “a system of secret surveillance           designed to protect national security entails a risk of undermining or even destroying democracy on the  ground of defending it”.  However, Aluquerque, J observed that the substance of the judgment (per majority)  risked failing to allay entirely the serious dangers for citizens’ privacy, the rule of law and democracy resulting from such a legal framework. [Case of Szabó and Vissy v. Hungary, Application No. 37138/14, decided on  January 12, 2016]

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