Thursday, April 22, 2010

This Week in Luxembourg

Two interesting Grand Chamber rulings this week:

In Commission v. Sweden, Sweden gets a slap on the wrist for showing a bit too much initiative internationally. Since the EU and the Member States are both parties to the Stockholm Convention on Persistent Organic Pollutants, they formally all have the right to propose an addition to the list of dangerous substances in Annex A. A Swedish proposal to add perfluaroctane sulfonate to the list went against the Council's stated position. This independent action by Sweden is now found to be in violation of Sweden's duty of sincere cooperation under art. 10 EC (now art. 4(3) EU).

In Federultility, the question concerned the Italian gas market. Under Italian law, there is still some regulation of prices, through the use of "reference prices". The Grand Chamber now ruled that some measure of state intervention is still permissible under Directive 2003/55, and that an intervention such as this one is permissible as long as it pursues a genuine "general economic interest", and does so in a way that is proportionate, as well as "clearly defined, transparent, non discriminatory and verifiable".

Other judgements:

The Fourth Chamber disagreed with AG Jääskinen on the idea of the British NHS offering financial incentives to doctors to get them to prescribe cheaper drugs. The AG was against, arguing that art. 94 of Directive 2001/83 is not, on its face, limited to third parties only. The ECJ now disagreed, referring to the right of the MS under art. 168(7) TFEU to stay in control of their own health care industries. Association of the British Pharmaceutical Industry.

In Dimos Agiou Nikolaou Kritis v. Ipourgos Agrotikis Anaptixis kai Trofimon, there was a bit of a disagreement over the definitions of "forest" and "other wooded land", and particularly the question of whether the definitions given in art. 3 ofRegulation 2152/2003 also applied outside the context of that Regulation. (They don't.)


Most importantly, AG Mazák released his opinion in the appeal in Deutsche Telekom v. Commission. In 2008, the CFI ruled that the competition laws could still be applied to Deutsche Telekom even though its behaviour had been approved (but not required) by the German telecoms regulator. The AG now agrees. Cf. my paper from February for more details.

AG Jääskinen wrote about the Framework Agreement on fixed-term work, which was negotiated by unions and employers' organisations at the European level, and annexed to Directive 1999/70. The interesting bit is the discussion of the second question, concerning the possible remedies in case the national law is found to be wanting (par. 58-71). The AG argues that instruments such as this one will not normally have direct effect, but that national courts are required to interpret the national law to minimise any inconsistency. Sorge v. Poste Italiane

AG Sharpston, finally, has an infringement case against Lithuania concerning the authorisation of medicinal products under - inter alia - the aforementioned Directive 2001/83. She agrees with the Commission that Lithuania should have revoked its pre-accession authorisation of a product called Grasalva, however, she also argues that the Commission should have never brought this case (par 155-163), given that the problem in question arose out of an accession SNAFU without anyone acting in bad faith. To quote her par. 161: Dura lex, sed lex. Commission v. Lithuania.

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