Thursday, September 30, 2010

This Week in Luxembourg

AG Sharpston has a quite spectacular case on the intersection of reverse discrimination in free movement law and fundamental rights protection in EU Law post-Lisbon. The case concerns the rights of residence of an infant Union citizen and its third country national parents. The result is not unequivocally to the benefit of said child (no "fundamental" right to family life at the material time), but is interesting because it seems to divorce the right of residence from the underlying free movement right. (par. 67-122) Note also how she brings in the fundamental rights (par. 151-177). Ambitious... let's see what the Grand Chamber does.

In the conflict between the European Commission and Belgium about the financing of the European Schools, the ECJ now held that it does not have jurisdiction, since the Community is not a party to the 1957 Statute of the European School and the 1962 Protocol, which Belgium stood accused of having violated. In other words, the Commission will have to bring this case in Belgian court. Commission v. Belgium. (AG Mengozzi had argued that the ECJ only had jurisdiction after 2002.)

AG Kokott thinks that it is not fair to make women pay lower life assurance premiums, just because it so happens that they live longer. As a result, she concludes that art. 5(2) of Directive 2004/113, which makes an exception to the general equal treatment rules to make this possible, is invalid. Association Belge des Consommateurs Test-Achats and Others

AG Cruz Villalón considered an Austrian regulation which quite obviously violated Community law by requiring that the licensee already be established in Austria and that a new license be denied if it threatened the profitability of other licensees. The case concerned tourist busing services in Vienna. Yellow Cab Verkehrsbetriebs (DE, FR)

In the Polish VAT case of Oasis East, tax havens everywhere achieved a useful victory. Poland is not allowed to exclude them from the usual rules about international VAT.

Finally, there were two more terrorism cases before the General Court this week. In Al-Faqih et al. v. Council, the applicants, who are on the UN list as well as on the EU list, won on the grounds that their right to be heard and their right to effective judicial review had been violated. They are officially no longer terrorists. Also, Yassin Abdullah Kadi is back in Luxembourg. As before, the Court ordered him to be taken off the list. Even though the Commission provided a statement of reasons this time, they still infringed the rights of defence and the principle of effective judicial protection. Kadi v. Commission.

[UPDATE: has a post about this case, as does EJIL:Talk!.]

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