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European Union: “Milk” Cannot Be Used to Market Purely Plant-Based Products

(June 27, 2017) On June 14, 2017, the European Court of Justice (ECJ) held that the term “milk” and other milk product names cannot, in principle, be used to designate a purely plant-based product even if clarifying or descriptive terms indicating the plant origin of the product concerned are used (e.g., tofu butter). The Court added that unless it is mentioned on a list of exceptions appended to the relevant European Union law, Commission Decision 2010/791, the term “milk” and other milk product names are reserved for “animal products” as defined in article 78, paragraph 2, and annex VII, part III, of Regulation No. 1308/2013 on agricultural products’ markets.  (Case C‑422/16, Verband Sozialer Wettbewerb eV v. GmbH (June 14, 2017), INFOCURIA; Commission Decision of 20 December 2010 Listing the Products Referred to in the Second Subparagraph of Point III(1) of Annex XII to Council Regulation (EC) No 1234/2007 (Recast) (Notified Under Document C(2010) 8434) (Commission Decision 2010/791/EU), 2010 O.J. (L 336) 55, EUR-LEX; Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 Establishing a Common Organisation of the Markets in Agricultural Products and Repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, 2013 O.J. (L 347) 671, EUR-LEX.)

The ECJ stated that this interpretation of the relevant legislation was consistent with both the principle of proportionality (article 5 of the Treaty on European Union) and the principle of equal treatment. (Case C-422/16, ¶ 48; Consolidated Version of the Treaty on European Union (TEU), 2012 O.J. (C 326) 13, EUR-LEX.) With regard to the principle of proportionality, which requires EU measures to meet legislative objectives without exceeding the limits of what is appropriate and necessary, the Court said that adding descriptions or explanations on products that do not meet requirements cannot eliminate the likelihood of confusion on the part of consumers. (Case C-422/16, ¶ 48.) With regard to the principle of equal treatment, the Court reiterated that the principle is only violated when comparable situations are treated differently and different situations are treated alike unless objectively justified.  In the Court’s view, the fact that producers of vegetarian or vegan substitutes for meat or fish are subject to less restrictions than producers like TofuTown does not violate the principle of equal treatment, because those  meat and fish substitutes are dissimilar to the milk and milk products substitutes. (Case C‑422/16, ¶¶ 49-50.)

Facts of the Case

The parties in the case were the Verband Sozialer Wettbewerb eV (VSW), a German association whose responsibilities include combatting unfair competition, and TofuTown GmbH (TofuTown), a company that produces and distributes vegetarian and vegan foodstuffs. (Case C‑422/16, ¶ 15.) VSW alleged that TofuTown confused consumers by marketing its purely plant-based products using “Soyatoo tofu butter,” “veggie cheese,” and other similar names, thereby infringing the German Act Against Unfair Competition in conjunction with Regulation No. 1308/2013. (Id. at ¶ 16; Gesetz gegen den unlauteren Wettbewerb [UWG] [Act Against Unfair Competition], Mar. 3, 2010, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 254, as amended, § 3a, GERMAN LAWS ONLINE; Act Against Unfair Competition (as last amended by the Act of Feb. 16, 2016), GERMAN LAWS ONLINE.)

VSW therefore brought an action for a prohibitory injunction against TofuTown before the Regional Court in Trier, Germany (Landgericht Trier). (Case C‑422/16, ¶ 16.) The Regional Court Trier stayed the proceedings and referred the question on how to interpret the relevant EU legislation with regard to the use of the term “milk” and the designations for milk products to the ECJ for a preliminary ruling, based on article 267 of the Treaty on the Functioning of the European Union. (Id. ¶ 19; Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2012 O.J. (C 326) 47 EUR-LEX.)

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Australia: National Firearms Amnesty to Commence

(June 27, 2017) On June 16, 2017, the Australian Minister for Justice, Michael Keenan, announced the details of a National Firearms Amnesty that will commence on July 1, 2017, and run for three months until September 30, 2017. (Press Release, Michael Keenan, National Firearms Amnesty Starts on July 1 (June 16, 2017), Minister for Justice website.) During the amnesty period, “anyone with unwanted and unregistered firearms or firearm-related items can legally dispose of or register them at approved drop-off points in each state and territory.” (Id.) The Minister noted that “[o]utside of the amnesty period, anyone caught with an unregistered firearm could face a fine of up to $280,000 [about US$211,300], up to 14 years in jail, and a criminal record.” (Id.)

This is the first nationwide amnesty since a one-year national amnesty and buy-back program was run starting on October 1, 1996. Since that time, individual states and territories have had various firearms amnesties. For example, the government of South Australia established an amnesty that was to run from December 1, 2015, to September 30, 2017, and this will now join the National Firearms Amnesty from July 1. (Firearms Amnesty, SOUTH AUSTRALIA POLICE (last visited June 22, 2017).)

The 1996-1997 national buy-back program was held pursuant to the National Firearms Agreement that was reached between the federal and state and territory governments following the Port Arthur massacre of April 28, 1996, in which 35 people were killed by a lone gunman. During the period of that amnesty, “[m]ore than 640,000 prohibited firearms were surrendered nationwide as part of the buyback program. In addition, it was reported that about 60,000 nonprohibited firearms were voluntarily surrendered without compensation.” (Kelly Buchanan, Firearms-Control Legislation and Policy: Australia, LAW LIBRARY OF CONGRESS (Feb. 2013).) The National Firearms Agreement also resulted in substantial changes being made to the gun control laws of each state and territory. (Id.)

The upcoming amnesty has arisen amid concerns about the number of illegal firearms in the country, particularly in light of events such as the Lindt Cafe siege in Sydney in December 2014 that involved a gunman carrying a weapon that was subsequently found to likely have been a “grey market” weapon. This term refers to unregistered weapons that were not surrendered as part of the 1996-1997 buy-back program. (State Coroner of New South Wales, Inquest into the Deaths Arising from the Lindt Cafe Siege: Findings and Recommendations 128-29 (May 2017).) In discussing the new amnesty, Keenan stated:

[c]learly the fact [is] we’ve got a deteriorating national security environment, we’ve got an environment where there has been five terrorists attacks on our soil and sadly in the vast majority of those cases it has been an illegal firearm that’s been used. Clearly that makes this top of mind and why we want to make sure we can clear as many illegal firearms from the community as possible. (Matthew Doran, Government Establishes New National Gun Amnesty to Rid Community of Illegal Firearms, ABC NEWS (June 16, 2017).)

A website created for the amnesty also refers to the Lindt Cafe siege, stating:

Unregistered firearms also carry risks for your community. Although unregistered firearms are not usually held by people with criminal intent, unaccounted for firearms do make their way into the hands of people who use them for criminal purposes. Unregistered firearms that end up in the hands of criminals are very difficult to recover, meaning they can pose a greater threat than registered firearms that are lost or stolen. For example, the shotgun used by Man Haron Monis during the Lindt Café Siege was unregistered, and impossible to trace. (About the Amnesty, National Firearms Amnesty 2017 website (last visited June 22, 2017).)

The website also states that “[t]he Australian Criminal Intelligence Commission estimates there are more than 260,000 firearms in Australia’s illicit firearms market. The use and movement of illicit market firearms is a national problem; the amnesty is one of several initiatives being used to address firearm-related crimes and threats.” (Id.)

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Egypt/Saudi Arabia: Egyptian Parliament Ratifies Maritime Border Demarcation Agreement

(June 26, 2017) On June 14, 2017, in a general session, the Egyptian Council of Representatives (the parliament) ratified the maritime border demarcation agreement between Egypt and Saudi Arabia. Based on this bilateral agreement, Egypt will cede its territorial rights to two Red Sea islands (Tiran and Sanfair) to Saudi Arabia. (Egypt Parliament to Vote on Islands Deal After Defence Committee Approval, NEW ARAB (June 14, 2017).)

The Council’s final vote comes after the approval of the agreement by the  legislative and constitutional affairs committee and the national security and defense committee. (Gamal Essam El-Din, Egypt Parliament to Hold Final Vote on Red Sea Island Deal Wednesday, AL-AHRAM (June 14, 2017).) Thirty-five out of the 43 members of the legislative and constitutional affairs committee voted in a favor of the bilateral agreement. After approving the agreement, the Committee referred it to the Council for a vote in a general session. (Gamal Essam El-Din, Egyptian Parliamentary Committee Approves Saudi Red Sea Islands Deal, Refers It for Final Vote, AL-AHRAM (June 13, 2017).)

Despite the Supreme Administrative Court having issued a final decision repealing the maritime border agreement in January of this year, the Council of Representatives ignored the Court and went ahead and discussed the agreement’s provisions. (Farah Bahgat, Tension Between Judicial and Legislative Branches Following Abdul Aal’s Statements, DAILY NEWS (June 14, 2017); George Sadek, Egypt/Saudi Arabia: Supreme Administrative Court Rejects Government Appeal in Red Sea Islands Agreement Case, GLOBAL LEGAL MONITOR (Jan. 25, 2017).)  The Chairman of the Council, Ali Abdul Aal, commented on the Supreme Administrative Court’s decision by saying that the parliament would not consider any judicial verdicts regarding the Red Sea islands agreement. (Bahgat, supra.)

Reactions to the Agreement

The agreement has stirred a lot of controversy on legal and constitutional grounds. Individuals opposing the agreement have argued that the parliament has no jurisdiction to discuss the provisions of the agreement because it should be put to a referendum based on paragraph 2 of article 151 of the Egyptian Constitution of 2014. (Sarah El-Sheikh, Parliament Approves ‘Red Sea Islands’ Agreement, DAILY NEWS (June 14, 2017).) That provision states: “[w]ith regards to any treaty of peace and alliance, and treaties related to the rights of sovereignty, voters must be called for a referendum, and they are not to be ratified before the announcement of their approval in the referendum.” (The Egyptian Constitution of 2014, art. 151(2), Constitute Project website.) Paragraph 3 of the same article, moreover, prohibits the parliament from discussing a treaty that will lead to the concession of the state’s territories: “[i]n all cases, no treaty may be concluded which is contrary to the provisions of the Constitution or which leads to concession of state territories.” (Id. art. 151(3).) Finally, the agreement’s opponents claim that the parliament has no right to discuss an agreement deemed invalid by the Supreme Administrative Court. (El-Sheikh, supra.)

On the other hand, individuals supporting the agreement argue that paragraph 1 of article 151 of the Constitution grants the parliament the authority to discuss agreements with foreign states. (Id.) Paragraph 1 states, “[t]he President of the Republic represents the state in foreign relations and concludes treaties and ratifies them after the approval of the House of Representatives.” (Constitution, art. 151(1).) In refutation of the opponents’ arguments, supporters of the agreement commented that the two Red Sea Islands were not originally part of Egypt, but were under Saudi control and part of the Saudi territories until Saudi Arabia gave them to Egypt for military protection during the 1950s, ‘60s, and ‘70s, during the wars against the state of Israel. (El-Sheikh, supra.)

The approval of the parliament has caused some street protests in Cairo. Some individuals protested the parliament’s decision in front of the building of the press syndicate in downtown Cairo; others arranged protests in front of the lawyers’ syndicate building nearby. (Id.)

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European Union: Court Dismisses German Bank’s Challenge Against “Significant Entity” Classification

(June 22, 2017) In a decision issued on May 16, 2017, the General Court of the European Union confirmed the decision of the European Central Bank (ECB) to classify the German State bank Landeskreditbank Baden-Württemberg – Förderbank as a “significant entity.” The bank is therefore subject to direct supervision by the ECB rather than supervision by the German national authorities under the ECB’s control.  The Court held that there were no “particular circumstances” that justified allowing the bank to come under direct prudential supervision by the German authorities despite its status as a “significant entity.”  (Judgment of the General Court (Fourth Chamber) (May 16, 2017), Case T‑122/15, INFO CURIA.) The General Court is one of the two components of the Court of Justice of the EU, the other component being the Court of Justice. It rules on actions for annulment and deals primarily with competition law, state aid, trade, agriculture, and trademarks. (Court of Justice of the European Union (CJEU), EUROPA (last updated June 20, 2017).)

The suit marks the first time that a bank has challenged its classification as “significant” since the task of direct supervision was conferred upon the ECB in 2014. The ECB derives this function from its role in the system of banking supervision in the EU, called the “Single Supervisory Mechanism” (SSM).  The SSM is made up of the ECB and the national supervisory authorities of the participating EU countries.  (Council Regulation (EU) No 1024/2013 of 15 October 2013 Conferring Specific Tasks on the European Central Bank Concerning Policies Relating to the Prudential Supervision of Credit Institutions (SSM Regulation), 2013 O.J. (L 287) 63, art. 6 ¶ 1.)

The Court stated that as the total value of the bank’s assets exceeded €30 billion (about US$33.4 billion), it is to be classified as “significant” in accordance with the criteria set out in the SSM Regulation. (Case T‑122/15,¶ 76, supra; SSM Regulation, art. 6 ¶ 4.) The Court dismissed as irrelevant the bank’s argument that direct supervision by the ECB was “inappropriate” because the bank allegedly had a low risk profile and prudential supervision could therefore be sufficiently achieved by the national authorities. (Case T‑122/15, ¶¶ 87-89.)

The Court further stated that under the SSM Regulation and the SSM Framework Regulation, a classification as “significant” is only inappropriate if there are “specific factual circumstances” that make direct supervision by the national authorities “better able to attain the objectives and safeguard the principles of the relevant rules including, in particular, the need to ensure the consistent application of high supervisory standards.” (Id. ¶ 80; Regulation (EU) No. 468/2014 of the European Central Bank of 16 April 2014 Establishing the Framework for Cooperation Within the Single Supervisory Mechanism between the European Central Bank and National Competent Authorities and with National Designated Authorities (SSM Framework Regulation) (ECB/2014/17), 2014 O.J. (L 141) 1, art. 70, EUR-LEX.) In this case, the Court held, the bank had not demonstrated that supervision by the German authorities would be better able to attain the objective of consistent application of high prudential supervisory standards, only that it would be “sufficient.” (Case T‑122/15, ¶ 88.)

Background on Banking Supervision in the European Union

The ECB is generally responsible for the effective and consistent functioning of the SSM. (SSM Regulation, art. 6 ¶ 1.) Since November 4, 2014, the ECB directly supervises the “significant” credit institutions, financial holding companies, or mixed financial holding companies of the EU countries that participate in the SSM. What constitutes a “significant bank” is determined by the ECB according to the criteria set out in article 6, paragraph 4, of the SSM Regulation, among them size (total value of assets), economic importance for the EU or any participating Member State, cross-border activities, and whether or not the bank has requested or received direct public financial assistance from the European Stability Mechanism (ESM) or the European Financial Stability Facility (EFSF). (Id. art. 6 ¶ 4.)

The ESM is a permanent stability mechanism that was set up in 2012 by the euro-area Member States according to article 136, paragraph 3 of the Treaty on the Functioning of the European Union to safeguard the stability of the euro-area as a whole. The purpose of the ESM is to mobilize funding and provide financial assistance to an ESM member that is experiencing, or is threatened by, severe financing problems, as was the case with Greece. The EFSF was the predecessor of the ESM and was set up as a temporary crisis resolution mechanism in May 2010. (Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. (C 326) 47, EUR-LEX; Jenny Gesley, FALQ: The Greek Debt Crisis – Part I, IN CUSTODIA LEGIS (July 16, 2015); Jenny Gesley, FALQ: The Greek Debt Crisis – Part II, IN CUSTODIA LEGIS (July 17, 2015).)

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Australia: Bill to Amend Citizenship Requirements Introduced

(June 21, 2017) On June 15, 2017, the Australian Minister for Immigration and Border Protection, Peter Dutton, introduced a bill in the House of Representatives that will implement the government’s proposals to amend certain legal requirements for obtaining Australian citizenship.  (Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, PARLIAMENT OF AUSTRALIA (last visited June 16, 2017); Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (Cth), Federal Register of Legislation website.)  The government had previously announced the proposed changes at a press conference in April 2017.  (Press Conference with the Minister for Immigration and Border Protection, The Hon. Peter Dutton MP, Parliament House, Canberra (Apr. 20, 2017), Prime Minister of Australia website; Press Release, Hon. Peter Dutton MP, Joint Media Release with the Hon. Malcolm Turnbull MP, Prime Minister – Strengthening the Integrity of Australian Citizenship (Apr. 20, 2017).)

The key changes for citizenship eligibility, as contained in the bill, include:

  • Increasing the general residence requirement as a permanent resident from one year at present to at least four years;
  • Introducing a stand-alone English test involving competent reading, writing, listening and speaking;
  • Strengthening the citizenship test itself with new questions that assess an applicant’s understanding of – and commitment to – our shared values and responsibilities.
  • Applicants will be required to demonstrate their integration into the Australian community.  (Press Release, Hon. Peter Dutton MP, Changes to Citizenship Laws Introduced in Parliament (June 15, 2017).)

Current Law

The requirements for becoming an Australian citizen are contained in the Australian Citizenship Act 2007 (Cth) (Federal Register of Legislation website).  Citizenship is acquired automatically by persons born in Australia to at least one parent who is an Australian citizen or permanent resident.  The other way to obtain citizenship is by application to the responsible Minister (i.e., the Minister for Immigration and Border Protection) in one of four possible situations: citizenship by descent; citizenship as a result of adoption; citizenship by conferral; and resumption of citizenship.  (Id. s 2A.)  In order for a person who is aged 18 or over to obtain citizenship by conferral, he or she generally needs to fulfill the following requirements:

  • be a permanent resident and satisfy either the general residence requirement (being present in the country for at least the past four years, including being a permanent resident for the 12-month period before making the application (id. s 22)), the special residence requirement (engaging in, e.g., activities beneficial to Australia (id. ss 22A-22C)), or the defense service requirement (id. s 23);
  • understand the nature of the application;
  • possess a “basic knowledge of the English language”;
  • have an “adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship”;
  • be likely to reside, or continue to reside, in Australia, or maintain a “close and continuing” relationship with the country; and
  • be of good character.  (Id. s 21(2).)

In order for an applicant to show that he or she understands the nature of the application, possesses a basic knowledge of English, and has an adequate knowledge of Australia and the privileges and responsibilities of citizenship, he or she must take a citizenship test.  (Id. ss 21(2A) & 23A.)  In addition, before the Minister can approve a citizenship application, persons aged 16 or over must make a “pledge of commitment” in accordance with the arrangements prescribed by regulations.  (Id. ss 26 & 27; Australian Citizenship Regulation 2016 (Cth), Federal Register of Legislation website; Australian Citizenship Pledge, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION (last visited June 20, 2017).)

In situations other than where a person acquired citizenship automatically, the Minister is able to revoke a person’s citizenship in circumstances involving certain offenses or fraud.  (Australian Citizenship Act 2007 (Cth) s 34.)

Proposed Changes in the Bill

The bill would change several of the requirements for obtaining citizenship, by:

  • clarifying that “Australian values” (which include the shared values of respect, equality and freedom) is a subject area that must be tested in the citizenship test and only successful completion of the citizenship test enables the Minister to be satisfied that a person has an adequate knowledge of Australia, Australian values, and of the responsibilities and privileges of Australian citizenship  … ” (Australian Citizenship Legislation Amendment (…) Bill 2017, Explanatory Memorandum (explanation of item 42), Federal Register of Legislation website.)  In addition, applicants for citizenship would be required to sign an “Australian Values Statement” as part of their application. ( Id. (explanation of items 118 & 119).)
  • removing the English language testing requirement from the citizenship test and instead giving the Minister the power to determine “the circumstances in which a person has competent English and the information or documentation relating to a person having competent English.” (Id. (explanation of item 45); see also id. (explanation of item 53).)
  • requiring all applicants for citizenship by conferral, not just those aged 18 years or older, to be of good character at the time of the Minister’s decision on the application. (Id. (explanation of item 52).)
  • increasing the general residence requirement to the full four years preceding an application for citizenship by conferral. (Id. (explanation of item 54).)
  • renaming the “pledge of commitment” as “pledge of allegiance” and extending the requirement for such a pledge to all persons aged 16 or over who apply for citizenship, including applicants for citizenship by descent or adoption.  (Id. (explanation of items 3, 24, 25 & 33).)

Opposition to the Bill in the Parliament

On June 20, 2017, the Labor Party spokesman on citizenship issues said that the caucus had unanimously agreed to vote against the bill in its current form.  The Party particularly objected to the requirement for a longer period of residence and to the new English-language proficiency standard in the bill.  In regard to the latter change, the spokesman said that it was a “bizarre act of snobbery” and many Australians would struggle to meet the requirement.  (Stephen Dziedzic, Citizenship Laws: Government in Fight to Pass Tough New Rules After Labor Resolves to Block Changes, ABC NEWS (June 20, 2017); Claire Bickers, Citizenship Test: Labor to Fight Malcolm Turnbull’s Citizenship Test Changes, NEWS.COM.AU (June 20, 2017).)  He also said that the proposed changes in the bill had nothing to do with national security as claimed by the government.  (Labor to Oppose Citizenship Changes, SKY NEWS (June 20, 2017).)

The Green Party has also stated that it will vote “no” on the bill.  Therefore, the government will need the support of ten senators from other parties, or independents, in order to pass the amendments.  (Dziedzic, supra.)

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