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Published online by Cambridge University Press: 20 January 2017
The decision of the Supreme Court in RJR Nabisco v. European Community is the culmination of sixteen years of litigation, preceded by years of investigation. From a European perspective, the decision can only be read as a disappointment: “we” tried, “we” lost. But beyond the frustration with the outcome, this European take on the RJR decision will focus on two questions: (i) why did the European Community decide to bring proceedings in the United States in the first place; and (ii) what would happen in the reverse scenario, if a foreign public authority or a private plaintiff were to bring suit in the European Union? Answering these two questions casts RJR in a slightly different light and offers an interesting picture of the wider political and regulatory context in the European Union.
1 RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 2115, slip op. at 7 (2016) (Ginsburg J., dissenting).
2 The European Community has been replaced by the European Union when the Treaty of Lisbon entered into force in 2009. For the purpose of simplification, I refer to the European Union throughout this contribution.
3 The European Commission has the authority to launch infringement procedures only against Member States (Consolidated Version of the Treaty on the Functioning of the European Union art. 258, May 9, 2008, 2008 O.J. (C 115) 47.
4 Convention of 26 July 1995 on the protection of the European Communities’ financial interests 1995 O.J. (C 316) 49 and its three additional protocols 1996 O.J. (C 313) 1; 1997 O.J. (C 221) 11; 1997 O.J. (C 151) 1. Council Regulation 2988/95 on the protection of the European Communities’ financial interests, 1995 O.J. (L 312) 1, providing for basic administrative penalties.
5 See Second protocol attached to the PIF Convention 1997 O.J. (C 221) 11; A first directive concerning the danger of money laundering within the realm of the internal market had already been enacted in 1991: Council Directive 91/308 of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, 1991 O.J. (L 166) 77; for the latest version of the directive: Directive 2015/849, 2015 O.J. (L 141) 73.
6 Commission Decision of 28 April 1999 establishing the European Anti-Fraud Office art. 2(1), 1999 O.J. (L 136) 20.
7 Regulation 883/2013 of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) artt. 2(4), 11, 2013 O.J. (L 248) 1.
8 For more info see Eurojust; Europol is this corresponding unit concerning cooperation among polices, see Europol.
9 Report from the Commission on the implementation by the Member States of the European Communities’ financial interests and its protocols 6 para. 3.3, COM (2004) 709 final (Oct., 25, 2004).
10 Id. at 7 para. 3.4.
11 Litigating in the United States for damages rather than introducing criminal procedures also had the advantage of lowering the standard of proof.
12 The text of the agreements can be found at Tobacco Smuggling, OLAF.
13 Kristalina Georgieva, Expiry of the agreement with Philipp Morris International, European Commission (July 6, 2016).
14 European Parliament resolution of 9 March 2016 on the tobacco agreement (PMI agreement), Eur. Parl. Doc. P8_TA(2016)0082.
15 For more details, see Questions and answers on fighting the illicit trade of tobacco product, (Aug. 14 2015).
16 Proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law, COM (2012)363 final (July 11, 2012); Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM (2013) 534 final (July 17, 2013).
17 The criminal protection of the Community’s financial interests: A European Prosecutor, COM (2000) 608 final (Sep. 29, 2000); Amended proposal for a Directive on the criminal-law protection of the Community’s financial interests, 2003 O.J. (71E) 1; Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor, COM (2001) 715 final (Dec. 11, 2001).
18 Proposal for a Regulation of the European Parliament and the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust), COM (2013) 535 final (July 17, 2013).
19 RJR, 136 S. Ct. at 2108, slip op. at 22.
20 Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recongnition and enforcement of judgements in civil and commercial matters (Regulation Brussels Ibis ), 2012 O.J. (L 351) [hereinafter Regulation 1215/2012]. See, e.g., Case C- 645/11, Land Berlin v. Sapir paras. 33, 34.
21 But see Case C-49/12, The Commissioners for Her Majesty’s Revenue & Customs v. Sunico paras 38-40.
22 Eurojust has cooperation agreements with third states and Liason Prosecutors for those states (including the United States, see for instance, Eurojust, Annual Report 2015, 47).
23 Criminal jurisdiction over criminal activities can sometimes be asserted on the basis of the nationality or residence of the defendant, see for instance Council Framework Decision 2008/841/JHA of 28 october 2008 on the fight against organised crime, art. 7, 2008 O.J. (L 300) 42; Art. 11 of the future PIF Directive as amended by Parliament (Position of the European Parliament adopted at first reading on 16 April 2014, Eur. Parl. Doc. P7_TA(2014)0427); Proposal for a Directive of the European Parliament and the Council on combating terrorism art. 21, COM (2015) 625 final (Dec. 2, 2015).
24 Regulation 1215/2012 art.7 (3); Directive 2012/29 of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime art. 16, 2012 O.J. (L 315) 57.
25 Regulation 1215/2012 art. 4(1) and art. 7(2) as interpreted by the ECJ (Case 21/76, Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA, 1976 E.C.R. 01735).
26 See Outcome appeal against Shell: victory for the environment and the Nigerian people, Milieudefensie When the case is brought at the place where the defendant is domiciled (here Shell Netherlands), Brussels Ibis or equivalent national procedural rules allow for joining related claims against other defendants (here Shell Nigeria).
27 For similar findings, see Knop, Karen et al., From Multiculturalism to Technique: Feminism, Culture and the Conflict of Laws, 64 Stan. L. Rev. 589 Google Scholar.
28 Directive 2014/104 of 24 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union art. 3, 2014 O.J. (L 349) 1.
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