Thursday, October 29, 2009

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)

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