This Week in Luxembourg

After AG Maduro's opinion in April, the Grand Chamber has now ruled in the Austrian/Czech nuclear power plant nuisance case. The judges agree with the AG that the Austrian court has to treat "installations" authorised by the Austrian government the same as those authorised by other MS, for the purposes of this nuisance suit, something they explain with explicit reference to the Eurotom Treaty. (Cf. par. 81-86. The referring court and AG Maduro only mentioned the EC Treaty.) CEZ

AG Bot delivered his opinion in the Brita case. The question was what to do with goods that were certified by the Israeli customs authorities as being of Israeli origin, but which in fact originated in the settlements on the West Bank. The AG proposes that the German authorities are not bound by the Israeli statement, and that these goods do not count under the EC-Israeli agreement, which is part of the Euro-Mediterranean Agreement. (Cf. also the EC-PLO agreement.)

AG Mengozzi delivered his opinion in the appeal against Case T-429/04, which dismissed a damages claim, based on the theory that the Community incurred non-contractual liability by enacting Regulation 2320/97, imposing certain anti-dumping duties. The CFI declined jurisdiction on some claims, and rejected others based on the absence of sufficient causation. The AG proposes that the appeal should be rejected, but he does have some critical remarks. This could be an interesting case, both regarding the relationship between EU and national courts, and regarding the principles of EU tort law.

The Fourth Chamber declared that Sweden failed to fulfil its obligations under Directive 2003/54, by failing to vertically separate its electricity market (art. 15(2)), and by failing to give the regulatory authorities the appropriate authority to regulate the market (art. 23(2)). Commission v Sweden. The Sixth Chamber ruled similarly with regards to Belgium, also regarding the electricity markt. Commission v Belgium (French).

The case of Pontin v T-Comalux concerns the concept of effective judicial protection, in this case in the area of employment law. The answer by the Third Chamber is a nice example of the ECJ having difficulty leaving enough room for the national court: "A fifteen-day limitation period (...) does not appear to meet that condition, but that is a matter for the referring court to decide." (AG Trstenjak had shown somewhat more restraint in that respect, although one could also argue that her proposed answer is simply less helpful, providing less guidance.)

Consistent with the recommendation of AG Ruiz-Jarabo Colomer, the Third Chamber decided to reject the challenge by the Commission against a Finnish rule that levied no VAT on legal services provided by public offices. Even though there was arguably some element of consideration, this was not enough to make these legal services economic in nature, given that the fees also depended on the recipient's ability to pay. Commission v Finland.

In Gielen, AG Ruiz-Jarabo Colomer described the Dutch income tax rule that discriminates to some extent based on the country of residence of self-employed persons as Orwellian, and recommended that the Court declare it inconsistent with Community Law. Gielen (Dutch, French, German)

Here's a block of cases on public works contracts:

·

The Fourth Chamber chose substance over law in Commission v Germany, disentangling the legal relations concerning the Messe in Cologne to decide whether a tender procedure should have been organised. The relevant question was whether the City of Cologne or GKM was the counterparty to the contract for the purposes of Directive 93/37.

·	In a different public works case, AG Kokott proposed some guidance as to the limitation periods and the effective review standard of art. 1(1) of Directive 89/665.

·	He did the same in Commission v Ireland, a case dealing with mostly the same issues.

·	In a fourth case, AG Sharpston considered whether a law that banned individual members of a consortium from suing over the tender in all circumstances, i.e. not just over the outcome, was consistent with Community Law. (It probably isn't.) Club Hotel Loutraki and others (German, French)

·

On Tuesday, AG Bot considered a public procurement case regarding public toilets in Frankfurt, Germany. The case concerns important questions of transparency as a general duty in all areas of Community law (cf.Audiolux), and the extent to which Community Law has something to say about remedies in case of error. In a nutshell, the AG argues a "Yes" on the former and a "No" on the latter. Wall AG (Dutch, French, German)

This Week in Luxembourg

On Thursday, AG Kokott released her opinion in ERG, the first case to consider the polluter pays principle of Directive 2004/35. Starting, as one does, with Archimedes (the case concerns an area not far from Syracuse on Sicily), she discusses its temporal applicability. Otherwise, the main focus of the opinion is on what the directive allows, rather than what it requires. (Cf. its art. 16) The AG's conclusion is that the Italian legislation is in conformity with the directive. (German, French, Dutch. N.B. I read it in German, before I discovered there was also a Dutch translation...)

Also on Thursday, the Third Chamber ruled in a Spanish Schengen/immigration case. Two Bolivian citizens had been expelled and "banished" by the Spanish government on the grounds that they - put simply - had overstayed their visas. Cf. art. 11(3) of Regulation 562/2006. It appears (par. 52) that only the Spanish version of that section contains an obligation to expel. The conclusion is, as AG Kokott had proposed, that there is neither a requirement nor an obligation to expel. Zurita García.

On Tuesday, four AGs released four opinions in 3½ cases:

·

AG Ruiz-Jarabo Colomer wrote about the (Italian) gas market and Directive 2003/55. The result is a thoughtful analysis of what the state is allowed to do when the market is supposed to be fully competitive, but isn't. Working from art. 86(2) EC (art. 106(2) TFEU), the AG considers the proportionality of the measures adopted, and their consistency with the "interests of the Community", concluding that the Italian scheme is OK, given certain general (and obvious) condidtions. Federutility.

·

AG Mazák opined on an English case regarding the residence and social welfare rights of a third-country national married to but separated from a Dane (no longer resident in the UK), living in England with their Danish kids. (Cf. Directive 2004/38.) Citing the 2002 Baumbast precedent and art. 12 of Regulation 16912/68 (now repealed), the AG argues that the children, who are going to school in England, are entitled to continue their schooling there, and that their mother is entitled to stay in England to take care of them. Harrow LBC v Ibrahim.

·	AG Kokott considered a similar English case, only now the petitioner is an EU citizen, and formerly a worker.Teixeira v Lambeth LBC.

·	AG Mengozzi wrote about Directive 93/37 on public works contracts - since replaced by Directive 2004/18 - as applied to a Spanish motorway. Commission c. Espagne.

This Week in Luxembourg

In an important company law case, the Fourth Chamber reaches the modest conclusion. (As did AG Trstenjak.) There is no "general principle" in Community law that states that minority shareholders may not be discriminated against. (In this case, the minority shareholder wanted to be bought out at the same terms as one of the major shareholders had been.) This case was a little tricky, because it appeared as if the plaintiffs were not only arguing their case based on the relevant Directives, but also on a type of EC common law. To the extent that such a thing exists, it doesn't apply here. Audiolux.

The Third chamber signed off an the Italian approach to public-private partnerships, where - put simply - the contract is awarded semi-private company responsible for carrying it out without any kind of tender, but the company that is to be the private partner in the enterprise is selected by fully competitive tender. The longer (and better) explanation is given inthe opinion of AG Colomer. While this is clearly the common sense result, note that the Court only said that this system was OK, while the AG also gave some general rules. Acoset.

In Djurgården-Lilla Värtans Miljöskyddsförening, the Second Chamber gave one of the first interpretations of the third (access to justice) pillar of the Aarhus convention, ruling for the plaintiff (and potential other members of the public) on all three questions. Djurgården-Lilla Värtans Miljöskyddsförening (AG Sharpston came to the same conclusion.)

In the eagerly anticipated Bavarian Lager Case, AG Sharpston proposed ruling against the Commission and rejecting the appeal. (Ruling below here.) Quoting Asimov, she explains that the case concerns a clash between the unstoppable force of the right to privacy and the immovable object of access to documents. This seems to be the right result, given that the information sought is the names (and only the names) of the participants of a meeting that resulted in Bavarian's free movement complaint being shelved. The AG gets there by distinguishing between "data" and "documents". Bavarian Lager.

On Wednesday, the CFI rejected the action for annulment by the Bank Melli Iran in another terrorism case. The interesting part is the discussion in par. 35-38 of the intensity of judicial review in these cases, depending on whether the action is aimed at the "general" part of the regulation, or at the annex that contains the list of people covered. When, like in this case, the action is against the former, the CFI adopts a large measure of restraint, focusing mostly on issues of procedure, détournement de pouvoir, and manifest error of fact. Bank Melli Iran v Council (French).

This Week in Luxembourg

On Thursday, the near-bankrupt Housing Association St. Servatius got a partial win in the ECJ. The requirement that they should ask permission of the minister before investing abroad is in violation of the Treaties, unless there are clear, objective guidelines that govern when that permission shall be given. Interestingly, the ECJ declined to answer the questions on art. 86, arguing that there was no issue of state aid and/or services of general economic interest here. The Dutch Council of State now has to decide whether the Dutch law complies with the requirements stated.Woningstichting Sint Servatius.

It should come as no surprise that a new access to documents problem hails from Sweden: To what extent should the press be able to access the pleadings in a (pending) court case? The CFI sided with the Commission, at least until the moment of the oral argument. (Case T-36/04.) AG Maduro now recommends an even higher degree of transparency. Ideally, he suggests that the Court should control access to documents in pending cases itself, in the alternative (Quoting the ECHR's Rule 33) he suggest a much narrower interpretation of the exceptions than the one used by the CFI. Sweden v API and Comm.

Among AG Maduro's final opinions, his argument that Regulation 2007/717, setting price caps for roaming, could validly be enacted under art. 95 EC seems almost insignificant. (Of course, that would not have been the case if his recommendation had been the opposite.) Subsidiarity (par. 27-36) and proportionality (par. 37-44) are discussed, but do not seem to have any serious teeth. Vodafone. (Note the short essay in par. 1 on the relationship between the courts and the political branches as gatekeepers of the system of conferred powers.)

AG Maduro also discussed a case about the wonderful world of joint and shared competences and international fora ("mixed agreements"): To what extent could Sweden act independently in the Review Committee set up by the Convention on Persisten Organic Pollutants? The AG argues that Sweden jumped the gun by not giving the Council the opportunity to act, and that Sweden violated Community Law in doing so. Commission v Sweden.

In another international relations case, the Council decided on the Community's position in an international forum without stating a legal basis. (TiL 24/4) Compared to AG Kokott, the ECJ does not devote a lot of attention to the unusual fact that the Community is not (yet) a party to the Conference in question, something that could have consequences both for admissibility and for the evaluation of the merits. Commission v Council.

Austria is allowed to discriminate against foreign disabled persons by only giving a (motorway) toll-exemption to '"disabled persons resident or ordinarily resident" in Austria, in order to "promote their mobility and social integration".Gottwald.

On Wednesday, in Rottman v Bayern (German), AG Maduro considers issues of citizenship and statelessness. The AG concludes that the prejudicial question is admissible (i.e. not strictly internal). Citing the 1997 Convention on Nationality, he argues that in this case the normal rule applies: states may give or deny their citizenship to whomever they please. Generally, though, he does not exclude the possibility of EC law affecting issues of citizenship. (par. 26-30.) Note also the short essay in par. 23 on the relationship between national and European citizenship, European legitimacy, etc.. (Cf. Adjudicating Europe)

In 2007, the CFI annulled the asset freeze imposed against Jose Maria Sison, the Filipino Communist leader. (Case T-47/03.) Despite that, the Council maintained him on the list, most recently in Decision 2009/62, under no. 26. Now the CFI annulled that decision again, based on a violation of the underlying regulation, Regulation 2580/2001. Rulings made in the Netherlands for the purposes of Sison's immigration litigation are not enough for art. 2(3) of the Regulation. Sison v Council.

Also on Wednesday, Hoechst got its competition fine reduced from € 74,03 million to € 66,627 million. The CFI rejected all of Hoechst's arguments, except the last one. The Commission failed to give it a 10% reduction under section D 2 of the old leniency notice on the grounds that it did not substantially dispute the facts. (par. 95-102 and196-198.) Hoechst v Commission.

In Blanco Pérez, AG Maduro quotes Shakespeare in analysing the Spanish pharmacy market. His conclusion is that the Spanish system violates Community Law. (Well, he leaves the minimum distance requirement for the national court.) Cf. Case C-171/07 and Case C-531/06 from last May, when the ECJ found against the Commission in a similar case against Italy. Maduro distinguishes them by arguing those cases were about making sure that pharmacists are qualified, not about regulating the number and location of pharmacies.

In Commission v Germany, AG Mazák considered the interplay between a 1990 agreement between Germany and Poland and art. 49 EC, now that both countries are Member States of the European Union. (Cf. art. 307 EC)

P.S. This analysis of the legal specifics of the Irish "guarantees" on the EJIL blog comes highly recommended. Also, the EU Law blog has an article on last week's emissions trading cases.