Thursday, June 17, 2010

This Week in Luxembourg

The Grand Chamber upheld Commissioner Reading's famous roaminig charges regulation. Following AG Maduro, they concluded that there was no problem regarding legal basis, proportionality or subsidiarity. R. (Vodafone et al.) v. Secretary of State for Business, Enterprise and Regulatory Reform. (Cf. EU Law Blog)

It also considered the obligations of the Member States to reimburse, under their national health insurance systems, medical costs incurred in another Member State when they were unforeseen but not covered by art. 22 of Regulation 1408/71. The Court concluded that the Spanish system generally denying coverage for such claims was in compliance with the free movement of services. Commission v. Spain.

On Thursday, the Grand Chamber followed AG Sharpston and ruled that a Palestinian refugee is still eligible for refugee status even though there is UN refugee assistance in the country of origin, unless he has actually availed himself of such assistance. (Cf. art. 12 of Directive 2004/83). Bolbol.

ECJ judgements:

Lafarge lost its appeal in the plasterboard cartel litigation.

In Terre wallonne the 4th chamber found that the action programmes Member States have to create under art. 5(1) ofDirective 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources is in principle a plan or programme covered by Article 3(2)(a) of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment, meaning that an environmental assessment will have to be carried out for a programme that is meant to improve the environment.

General Court:

The General Court ruled against the Commission in an access to documents case, where a party to an abuse of market power case wanted access to the case file so as to better pursue its appeal before the ECJ. (Cf. the OJ announcementhere, which, incidentally, is from October 2004.) In its decision, the Commission had essentially thrown the book at the plaintiff's request, but now all its defenses were rejected, except part if its "legal advice" claim. Éditions Odile Jacob (FR)


The replacement of the late AG Ruiz-Jarabo Colomer, AG Cruz Villalón, used his third opinion to tell the ECJ that one of its long-standing lines of cases, the Rheinmühlen and Cartesio rule that governs the situation when a national court gets a case back from its national supreme court in a way that it thinks violates EU law. In those circumstances, the ECJ’s case law says that the national court must still ask a prejudicial question. The AG now argues that that rule should be reconsidered. AdjudicatingEurope approve. The AG also argues that the Bulgarian health care law at issue is lawful. Elchinov.

AG Bot discussed the question of what to do with a Greek citizen who had the greatest possible residence rights in Germany (grew up there, worked there, held a residence permit for unlimited duration), who had comitted a number of felonies. Is Germany allowed, under art. 28(3) of Directive 2004/38, to expel him? The AG argues for a broad reading of "imperative grounds of public security", i.e. as possibly including the case of the defendant. Baden-Württemberg v. Tsakouridis.

AG Mengozzi wrote about Belgium’s obligations vis-à-vis the European Schools under the Establishment Agreement. He concludes that the Court has no jurisdiction over obligations allegedly arising out of that Agreement, except for cases concerning the period after 1 October 2002, when the 1994 Convention defining the Statute of the European Schools entered into force. He also concludes that the Commission has no case under art. 10 EC. Commission v. Belgium.

AG Mengozzi also concluded that a Hungarian law that forbids the selling of contact lenses over the internet is an unlawful restriction of the free movement of goods since the stated goals of the Hungarian law could have been achieved by less restrictive means. (The law did not distinguish between hard and soft lenses, nor between those lenses and lenses that are purely decorative.) The AG declined to apply Keck. (par. 62-69) Ker-Optika (NL, DE, FR)

AG Trstenjak wrote an opinion about art. 3(1)(b) of Regulation 1610/96 concerning the creation of a supplementary protection certificate for plant protection products, which is much too technical for me to be able to say anything sensible about it. All I can say is that it has something to do with biopatents, and how their European recognition depends on certain national permits. (Cf. Directive 91/414) The AG concludes against the would-be rights holder. Rechtsanwaltssozietät Lovells v. Bayer CropScience (DE, FR, IT)

AG Sharpston considered the privacy rights of the recipients of aid under the European Agricultural Guarantee Fund. She concludes that some of the transparency provisions go too far and infringe on the recipients’ privacy rights. Volker und Markus Schecke

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