This Week in Luxembourg

On Thursday, Sept. 17, the ECJ discussed statutory assignment of rights from the insured to the insurer ("subrogatie") in the context of Regulation 44/2001. The conclusion was that the Austrian Krankenkasse could not sue the insurer of the person who caused the accident in Austria, since that person lived in Germany. Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG.

The ECJ rejected the Commission's appeal in one state aid case, MTU Friedrichshafen, and upheld it in another. In the latter case, the CFI erred by applying the principle that legitimate expectations are to be protected to the case at bar. Intriguingly, without using the exact words, par. 94 appears to require detrimental reliance, which the applicant here did not have. Koninklijke FrieslandCampina.

The Netherlands violated the standstill clause of art. 13 of Decision 1/80 of the Association Council of the EU and Turkey by introducing a new administrative charge for Turkish citizens working in the Netherlands. Sahin.

Also on Thursday, AG Kokott wrote an opinion about an appeal in an art. 82 EC case. He proposes the ECJ should overrule the CFI and find for the Commission (!). The root of the problem is an undertaking by a dominant firm, i.c. De Beers, not to do business with the applicant, Alrosa, any longer. Under art. 9 of Reg. 1/2003, this commitment was made binding. The CFI ruled that this decision violated the principle of proportionality. The AG now argues that this was wrong for more reasons than there is space here to list. (Quick count: at least a handful of different reasons.)Commission v Alrosa.

On Wednesday, Sept. 16, the CFI ruled in a case commenced by a Greek fishing company against the Community concerning complicated matters of customs law, form T2M, etc. The interesting part is that this action was - inevitably - based on art. 288, par. 2 EC. Finding no unlawful act on the part of the Community, the CFI also quickly considered whether there was a "convergence" among the legal orders of the member states regarding state liability for lawful acts. (par. 74-77) Finding no such convergence, they ruled for the defendants. Case T-162/07, Pigasos Alieftiki Naftiki Etaireia. (In French.)

On Tuesday, Sept. 15, there were three AG opinions: AG Mazák wrote about the rights of three Iraqi refugees underDirective 2004/83. Abdulla et al. v Germany. He also wrote an opinion on a case where legal certainty and other High Principles were confronted with the failure to translate a tax assessment notice. Unfortunately, the AG found that the question was hypothetical and therefore manifestly inadmissible, making further analysis unnecessary. Kyrian. (Cf.Adjudicating Europe.)

AG Mengozzi, finally, wrote about a case where the Commission and an NGO argued about the appropriate level of access to documents the latter should enjoy, in the course of another (legal) disagreement between them.Internationaler Hilfsfonds eV.