Thursday, December 03, 2009

This Week in Luxembourg

On Thursday, the Second Chamber upheld the appeals by Faraj Hassan and Chafiq Ayadi against the CFI's rulings in T-49/04 and T-253/02. Both plaintiffs are on the UN sactions list. The CFI, applying its Yusuf and Kadi precedents, had confirmed the Council's terrorism sanctions against the plaintiffs, and the Court now applies its own Kadi precedent to overturn. (Just for the record: I still don't think this is the correct result.) Hassan and Ayadi v. Council and Commission.

Also on Thursday, the Fourth Chamber found against Germany, ruling that it had failed to fulfil its obligations under the 2002 telecoms package (Directives 2002/19, 2002/21 and 2002/22) by unduly restricting the regulator's freedom to find what is or is not a "new market". Commission v Germany. On the same day, the Sixth Chamber found that Belgium failed to adequately transpose Directive 2003/55, i.e. that it had failed to sufficiently liberalise its gas market.Commission v Belgium.

On Wednesday, the Grand Chamber ruled in Aventis Pasteur, a case on liability for defective products, specifically vaccines. The ruling identifies the circumstances in which a defendant may be substituted for another even though the limitation period of the Directive has expired, for example if it was difficult or impossible for the plaintiff to discover against whom the suit should have been brought, or if the different possible defendants belong to the same group. Cf. opinion by AG Trstenjak.

AG Mengozzi suggested that the Commission's art. 258 TFEU/226 EC suit against Portugal should be granted. The problem was Portugal's golden shares in Portugal Telecom, which according to the Commission are in violation of art. 56 EC/63 TFEU. The AG forcefully (cf. par. 56) argued for his position, citing Commission v. Netherlands and distinguishing Commission v. Belgium, while Portugal's citing of such creative sources as art. 295 EC (art. 345 TFEU) and Keck were to no avail. Commission v Portugal.

On Monday the Grand Chamber ruled, using the expedited procedure, in a Bulgarian immigration case. (Expedited = question asked on 19/8, received on 7/9, 2nd chamber decision on expedited procedure on 22/9, hearing on 27/10, ruling on 30/11.) The judgement gives guidance on the interpretation of art. 15(4), (5) and (6) of Directive 2008/115, regarding detention for the purpose of removal. On the whole, it looks like the plaintiff will be released, since it appears to be unlikely that Russia will take him back, or that they should be allowed to. (Par. 23) Kadzoev (Huchbarov)

In France and France Telecom v Commission, the CFI spent some time talking about the work of the Commission's jurists-linguists (par. 102-130) If the Commission agrees on the general terms of a decision, but delegates the power to fix the final text, once the jurists-linguists are finished, to the Competition Commissioner and the President, how much may the jurists-linguists change before the decision no longer counts as a decision of the Commission? Incidentally, this plea, like all eight others, was rejected. France still has to recover the taxes it exempted France Telecom from.

Last week's CFI ruling in Germany v Commission contains a discussion of estoppel/legitimate expectations/"the maximnon venire contra factum proprium", including an attempt by Germany to get the CFI to say that the Commission was estopped from claiming it had the power to carry out checks because it recently published two draft regulations asking the Parliament and the Council to give it this power. The CFI argues that the wording of art. 9(2) of Commission Regulation 70/2001 is "clear and unambiguous", so Germany loses.

The (new) UK Supreme Court ruled that British courts had jurisdiction - under Brussels II revised - over the custody case of a British boy habitually resident in Pakistan given that his parents were habitually resident in the UK, they were all British citizens, and both parties had accepted jurisdiction.

On a somewhat lighter note, it apparently took an actual General Court ruling to establish that the words Volvo and Solvo are similar. (The OHIM Board of Appeal had rejected that submission.) Volvo v. OHIM.

Also, the official english translation of the ruling by the Czech Constitutional Court about the Lisbon Treaty is now available:

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