Friday, October 23, 2009

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 Citing the 2002 Baumbast precedent and art. 12 of Regulation 16912/68 (now repealed), the AG argues that the children, who are going to school in England, are entitled to continue their schooling there, and that their mother is entitled to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.

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