This Week in Luxembourg

- Procedurally, the big case of the week is M. v. EMEA (Third Chamber), the first ever exercise by the Court of its review power under art. 225 EC/256(2) TFEU. The Civil Service Tribunal had declared M.’s case manifestly inadmissible (Case F-23/07). On appeal to the CFI, the CST’s ruling was overturned in its entirety, and M. was awarded € 3000 in damages. (Case T-12/08 P) Now, on the proposal of the First AG, the case is before the Court, who rule that the CFI should not have ruled on the merits of the case itself, but should have sent the case back. Cf. Adjudicating Europe.

- An opinion was handed down today regarding two Dutch gambling cases, Betfair and Ladbrokes, challenging the Dutch law limiting access to the market under art. 49 EC. AG Bot proposes arguments favouring the Dutch side on the first four questions: such restriction is a permissible way to pursue a permissible goal, there needs to be no detailed evaluation of every implementing regulation if the overall regime is found to comply with art. 49, etc. The only question mark concerns the renewal of the one available license, which might need to be tendered competitively.

- In Rubino, an Italian university lecturer who had obtained his Habilitation at the University of Hamburg in Germany tried to get this qualification recognised in Italy, which has no such concept. The Eighth Chamber ruled that his Habilitation did not entitle him to skip any part of the Italian (comparative) selection process for university lecturers, but that the Italians should accord his qualification its “proper value”. Rubino v. Ministero dell’Università e della Ricerca.

- The First Chamber ruling in Martín Martín can be summed up easily enough: “Art. 4 of Directive 85/577 (...) to protect the consumer in respect of contracts negotiated away from business premises does not preclude a national court from declaring, of its own motion, that a contract falling within the scope of that directive is void on the ground that the consumer was not informed of his right of cancellation, even though the consumer at no stage pleaded that the contract was void before the competent national courts.”

- In a bit of tax fun, Hungary apparently levies a “vocational training levy” on companies depending on their number of employees. AG Sharpston deals with the case in the most straightforward manner she can think of, avoiding the tax angle as much as possible. Instead of applying the somewhat more drastic Arblade precedent, as the Commission had proposed, she applies Hartlauer Handelsgesellschaft: Anything that makes exercising the freedom of establishment less attractive is a violation of art. 43 EC. CIBA

- In an entirely different case, AG Sharpston considers the rights the heirs of Salvador Dalí may have as a result of thedroit de suite of Directive 2001/84 and the French (implementing) legislation. The problem isn’t the droit de suite per se, but rather the manner in which it is inherited under French law. In France, it is only enjoyed by the author’s heirs at law, not his legatees. The AG proposes that this rule is OK, being within the freedom of manoeuvre left to the MS by the Directive. Fundació Gala-Salvador Dalí. PS. Note the horizontal direct effect issue in par. 35-41.

- Finally on Thursday, the CFI ruled in two competition cases brought by Solvay. In its cartel case, Solvay proved that the period of infraction was 1987-1989, but not 1990 as the Commission had claimed, earning it a discount of 25% on its fine (par. 292-306). In its abuse of dominance case, Solvay earned a 5% discount because of an error in the way the Commission took into account Solvay’s recidivism (par. 507-512).

- A number of Member States got in trouble with the Commission because they exempted certain imports of military equipment from the Common Customs Tariff for years after this exemption was officially abolished. References to the "essential security interest" of art. 296 EC was to no avail, on Tuesday the Grand Chamber found for the Commission in all cases: Italy, Finland, Sweden, Germany, Italy again, Greece and Denmark. The opinion of AG Ruiz-Jarabo Colomer is here.

- Also on Tuesday, the Court of First Instance (Third Chamber) found against the Commission in a state aid case about Electricité de France (EDF). The problem was the manner in which EDF was reorganised in 1997. The Commission, looking at the situation through the lense of private enterprise, found that the exemption of certain taxes that would have otherwise been due as part of such a reorganisation constituted illegal state aid. The CFI, on the other hand, observed that the point was to create a private enterprise where there was none, and found against the Commission. EDF v Commission.

P.S. I just came across the UK Asylum and Immigration Tribunal ruling in the Geert Wilders case, overruling the initial decision refusing him entry. I’m not sure how long ago it was published, but it seems interesting.