Publications / McDermott Newsletters / Brussels Brief - February 20, 2009

Brussels Brief - February 20, 2009

February 20, 2009

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KEY DEVELOPMENTS

Agriculture – ECJ:  Right of Public Access to Information Applies to Releases of GMOs

Matthew Kopetski

In line with Directive 2001/18/EC, the European Court of Justice (ECJ) has ruled that national authorities may not block the disclosure to third parties of the location(s) where genetically modified organisms (GMOs) have been deliberately introduced within the Community.  This ruling is in response to a referral submitted by the French Conseil d’État concerning whether national authorities may prevent such disclosure in order to ensure public order and other interests protected by law.

Directive 2001/18/EC governs the deliberate introduction of GMOs into the environment.  It requires that persons wishing to release GMOs provide advance notification to competent national authorities unless an exemption applies.  These notifications consist of a detailed technical dossier including the grid reference of the release site(s).  The Directive also requires that national authorities protect confidential information contained in the notification.

In reaching its ruling, the ECJ referred specifically to the provisions of Article 25(4) of the Directive, which explicitly provide that the location of release may not be kept confidential.  The ECJ also referred to two of its previous judgments, which found that a Member State may not rely on internal difficulties to justify its failure to comply with Community law.

 

Finance – Taxation:  Commission Opens Infringement Procedure Against Belgium with Regard to Notional Interest Deduction

Jacques Pieters

In early 2000, the European Union obliged Belgium to gradually abolish its coordination centre tax regime, which was attracting many foreign investors to Belgium, on the grounds that it was a form of unlawful tax competition between EU Member States.  In 2006, Belgium replaced its coordination centres with the Notional Interest Deduction (NID).

The NID allows a Belgian company or the Belgian branch of a foreign company to deduct a deemed (and therefore "notional") interest on its own net equity from its Belgian taxable income.  This has substantially enhanced the attractiveness of investing in Belgium in recent years and has discouraged the relocation of Belgian businesses to other EU jurisdictions.  Financing activities and capital-intensive investments, both of which require a lot of equity, have benefited particularly from the measure.

At the time of the NID’s introduction, it was reviewed informally by the European Commission and no objections were raised.   It now appears, however, that Luxembourg has lodged a complaint with the Commission against the establishment of the NID.

The Commission has reviewed its earlier opinion and now judges the system to be contrary to the free movement of capital and the freedom of establishment as it believes that the measure discourages Belgian companies from investing in another Member State.  The Commission has written a letter to the Belgian Government notifying it of the opening of a formal infringement procedure.

 

Data Protection:  Commission Review finds Personal Data Protection under US Terrorist Finance Tracking Programme Effective

Leigh Smith

The European Commission has presented the results of its review of the US Treasury Department’s undertakings to the European Union regarding the Terrorist Finance Tracking Programme (TFTP).  The TFTP was developed after the September 11 terrorist attacks to assist in the prevention and prosecution of terrorist activity.  Under the TFTP, the Treasury Department can subpoena details of financial transactions from the Society for Worldwide Interbank Financial Telecommunication (SWIFT).

The undertakings, known as the TFTP Representations, were given in June 2007 by the Treasury Department to the European Union.  They concerned principally the use of the personal data, how it was to be protected and how long it was to be retained. 

The Commission’s review, which began in March 2008 and was led by Judge Bruguière, found that the TFTP Representations acted as a sufficient safeguard to the personal data of EU citizens.  The review further provides recommendations to ensure that the TFTP Representations continue to remain effective and, where possible, are enhanced.

 

Human Rights – ECJ:  Applicants for Subsidiary Protection Need Not Prove Individual Risk if Returned to Country of Origin

Vasilios Bousis

The European Court of Justice (ECJ) has ruled on a question referred by a Dutch national court aiming to clarify whether, according to the relevant provisions of Directive 2004/83/EC, an applicant for subsidiary protection had to prove that they were specifically targeted in their country of origin due to their own particular circumstances.  The objective of Directive 2004/83/EC is to establish a common asylum policy.

The ECJ held that the applicant need not provide evidence of being at direct risk according to individual circumstances, but that the degree of violence in the applicant’s country of origin can suffice in exceptional circumstances for the competent authorities to decide that a person, if returned to their country of origin, would face a serious threat to their safety.

Belgium has already established a list ranking regions on their degree of violence.  The list includes certain regions of Darfur, Iraq, Ivory Coast and Somalia.  Applicants from these regions would normally not be expelled to their country of origin.

 

NEXT WEEK’S EVENTS

Monday 23 February – Friday 27 February 2009

 

COUNCIL MEETINGS

General Affairs and External Relations Council (GAERC) (23 – 24 February 2009)

Justice and Home Affairs Council (JHA) (26 – 27 February 2009)

 

COURT OF JUSTICE

There will be no sitting of the Court of Justice from 23 February 2009 to 1 March 2009 inclusive.

 

COURT OF FIRST INSTANCE

There will be no sitting of the Court of First Instance from 23 February 2009 to 1 March 2009 inclusive.

 

 

McDermott Will & Emery

McDermott Will and Emery