Saturday, December 18, 2010

This Week in Luxembourg

This week, there were a large number of rulings in cases where I had already flagged the opinions in the previous months. As usual, the order is roughly in order of interest and/or importance, not to mention subject matter, with Grand Chamber rulings first, followed by ordinary ECJ rulings and AG opinions.

Easily the most fun of this week's judgements is Josemans v. Maastricht, the coffee shop case.Maastricht sought to restrict the access of non-Dutch citizens to their coffee shops. When this led to the applicant's establishment being closed, he raised an issue of discrimination under art. 12 and 18 EC (now art. 18 and 21 TFEU). AG Bot was quite outraged and defended the mayor's decision (NL, DE, FR). Taking a much calmer tone, the 2nd Chamber now holds that drugs, be they soft or not, are not subject to any of the free movement rules. The national rule at issue is discriminatory insofar as it restricts the freedom of non-Dutch EU citizens to go to Josemans' coffee shop to consume non-alcoholic beverages and food, but that restriction is justified and in any event relatively unimportant. Cf. and NRC Handelsblad.

NB. Earlier Dutch cofffee shop cases include theVAT Cases Case 269/86 Mol, Case 289/86 Vereniging Happy Family Rustenburgerstraat and Case C-158/98 Coffeeshop 'Siberië', all of which agree that you can't levy VAT on an illegal drug.

UPDATE: EU Law Blog has a post about the Josemans case.

In Commission v. France, the 2nd Chamber agrees with AG Mengozzi(NL, FR, DE) that a French rule forbidding biologists from holding shares in more than two companies formed in order to operate jointly one or more biomedical analysis laboratories is in violation of the freedom of establishment. A rule forbidding non-biologists from owning more than 25% of the shares, however, is justified.

In Environmental law,a number of Dutch NGOs asked for access to all the documents regarding the decision to set the Maximum Residu Limit of propamocarb on and in lettuce as it was set. The Trade and Industry Appeals Tribunal (one of the Netherlands' four supreme courts) asked whether this is "environmental information", and, if so, how Directive 2003/4 applies to this situation. In line with AG Kokott's opinion (NL, DE, FR), the 4th Chamber answered "yes" to the first question, while rejecting the possibility of a blanket denial under "commercial secrets". Stichting Natuur en Milieu

Also in Dutch Environmental law, one of the other Supreme Courts, the Council of State, had some questions about Directive 2008/1, concerning integrated pollution prevention and control. The case concerns emission limit values for three new power plants in Eemshaven and Rotterdam. AG Kokott argues that these limit values already carry significant weight during the transposition period. If this argument is followed by the Court, the Dutch government will be very unhappy... Stichting Natuur en Milieu v. Gedeputeerde Staten van Groningen en Zuid-Holland (NL, DE, FR)

In Non-Dutch Environmental law, AG Mengozzi has an opinion suggesting that the ECJ should reject Luxembourg's action for annullment of art. 1(2) of Directive 2009/12, which says that the directive applies to two kinds of airports: airports with more than 5 million passenger movements, and the largest airport in each MS. Luxembourg argues that that discriminates against its national airport Findel, which has fewer than 5 million passenger movements and which competes against German and Belgian airports which are of similar size, but which are not their country's biggest airport.Luxembourg v. Parliament and Council (DE, FR)

Also in Non-Dutch Environmental law, AG Sharpston argues in favour of the right of NGOs to sue to force the government to prepare environmental impact studies. Bund für Umwelt und Naturschutz Deutschland (NRW) v. Arnsberg

Finally, AG Trstenjak suggests that the ECJ should disapprove of a Tiroler rule restricting access of trucks weighing more than 7,5 tonnes to the Inntal autobahn if they carry certain goods, on the grounds that it is a non-justified restriction of the free movement of goods. Austrian concerns about NO2 emissions failed to convince her. Commission v. Austria (NL, DE, FR)

In State Aid law, two appeals were dismissed. In Kahla v. Commission(1st chamber), the appellant raised issues of legal certainty and legitimate expectations, and in AceaElectrabel v. Commission (2nd chamber), there was a bit of a messy situation with regards to the relevant "economic unit" that received the aid in question.

Also in State Aid law, but in the 3rd chamber, the appeal in Athinaïki Techniki v. Commission was upheld. The sequence there was that the Commission declined to investigate further, the CFI said that wasn't a decision, the ECJ said that it was, the Commission re-opened the dossier, the CFI said there was nothing to litigate over anymore, and now the ECJ,agreeing with AG Bot, disagrees. The Commission is not allowed to persist in its illegal failure to act while it investigates.

In Seydaland v. BVVG, the 1st chamber approved of a German Federal law setting rules for the valuation of land for privatisation purposes. An earlier version of this law had run into trouble with the Commission in the 1990s. The new rule is now held to sufficiently approximate the fair market value of the land.

In a final piece of State Aid news, the General Court upheld the Commission's decision that certain aspect of the financing of the Dutch NOS were contrary to Community law. The NOS now has to pay back € 76 million. Netherlands and NOS v. Commission (NL, DE, FR) Cf.

In Competition Law, a private litigant (go Courage v. Creehan!) wants access to a leniency application, but AG Mazák says they can't have it. That sounds quite obviouslyright. Pfleiderer v. Bundeskartellamt.

AG Jääskinen has a Lithuanian case on citizenship and non-discrimination, concerning a Lithuanian rule that first and last names must be in Lithuanian. The AG argues that art. 2(2)(b) of Directive 2000/43 does not apply here, but that art. 12(1) and 18(1) EC do limit the freedom of a MS to dictate the spelling of the names of EU citizens. So it looks like Mrs. Runevič-Vardyn will be allowed to have her name registered in the Polish form as Runiewicz-Wardyn, as she requested. Runevič-Vardyn (DE, FR)

AG Mazák proposes that Greece be ordered to pay a fine of € 2 million for failing to comply in time with Commission v. Greece (2007), a case about compensation to crime victims under Directive 2004/80. Since Greece has complied with the ruling by enacting the relevant statute on 18 December 2009, there is no need for penalty payments. (Cf. the Commission's communication on what is now art. 260 TFEU.) Commission v. Greece (NL, DE, FR)

According to AG Trstenjak, a worker habitually carries out his work in the Member State where he carries out most of his work (cf. art. 6(2) of the Rome Convention of 1980 on theInternational Private Law of contracts). I'm sure that will make things much clearer... Koelzsch v. Luxembourg (DE, FR)

The European Schools continue to cause trouble for the ECJ. In September, the ECJ held that it did not have jurisdiction overa dispute between the Commission and Belgium about the financing of the European Schools. Commission v. Belgium. AG Sharpston now proposes to declare admissible a prejudicial question from the Complaints Board of the European Schools about the remuneration system of the School's staff. Miles and others v. European Schools

On Wednesday, there were two competition cases in the General Court:

In CEAHR v. Commisison, the Confédération européenne des associations d'horlogers-réparateurs achieved an important victory in its ongoing struggle to force the Swiss watch producers to supply spare parts to independent watch repairers. The Court found that the Commission had defined the relevant market too broadly. More fun is how the Court examined the Commisison's decision that the matter simply wasn't important enough ("insufficient Community interest"). (par. 157-177)

In E.On v. Commission (DE, FR), the Commission's decision to impose a fine of € 38 million on E.On for breaking a seal (cf. art. 20(2)(d) and 23(1)(e) of Regulation 1/2003). This may seem a little harsh, but I suppose it makes sense under a theory of optimal deterrence. E.On. argued in eight different versions that they didn't do it, all of which were rejected, as was its ninth objection, concerning the proportionality of the fine.

P.S. The archive of these emails is here.

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