This Week in Luxembourg

During the Court’s Easter Recess, it did hand down one judgement: In the PPU case of Hassen El Dridi alias Soufi Karim, the First Chamber held that the MS are not permitted to make simple illegality a criminal offense. The Court held that Directive 2008/115 fully harmonises this area of the law, and that making all illegal residents criminals offends the requirement of proportionality of art. 15 and 16 of the Directive.

Surprisingly, the Polish courts needed to be told that, while art. 5 of Regulation 1/2003 orders the national competition authorities to apply EU competition law, it does not authorise them to find that there has been no breach. I would have thought that it is fairly intuitive that the NCAs can find an infraction, but cannot shield a company from the Commission’s wrath. In this case, the question concerned alleged abuse of dominance by Telekomunikacja Polska. Prezes Urzędu Ochrony Konkurencji i Konsumentów v. Tele2 Polska

In McCarthy, the applicant failed to use her dual Irish/British citizenship to get around the immigration rules. A dual citizen who has never exercised their free movement rights, i.e. who has always lived one of the MS of which they are a citizen, cannot normally rely on EU law vis-à-vis their own government, since their legal issues constitute a purely internal situation.

The Third Chamber ruled in European Communities v. Région Bruxelles-Capitale about who gets to represent the Council in court when the Council has a dispute with the city regarding fees for planning permission. Note that this is old news, since the problem in question has been fixed in the Lisbon Treaty. (Cf. art. 335 TFEU and the old art. 282 EC.) The Court, like AG Crúz Villalon, felt that the Council was entitled to take point in this case.

Deutsche Telekom lost its directory assistance case before the ECJ (cf. art. 25 of Directive 2002/22). It has to share with other directory assistance providers not only the data it possesses on its own subscribers, but also the data it possesses on subscribers of third-party telecom companies. Privacy law, particularly art. 12 of Directive 2002/58, does not generally change this. Deutsche Telekom v. Germany

In Ze Fu Fleischhandel and Vion Trading v. Hauptzollamt Hamburg-Jonas, the German tax authorities (and Courts) are in all sorts of trouble over limitations periods, legal certainty and proportionality in relation to the recovery of an improperly granted export refunds from 1993, which is of course before the enactment of Regulation 2988/95, which would otherwise take care of this problem. (cf. art. 3)

In MSD Sharp & Dohme and in Novo Nordisk v. Ravimiamet, the Third Chamber gave some guidance as to the boundaries of permissible medicinal advertising under Directive 2001/83.

AG Bot argues that art. 22a of Directive 89/552, as inserted by Directive 97/36 (“Member States shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality.”), requires the MS to also prevent broadcasts which glorify a terrorist organisation. Mesopotamia Broadcast and Roj TV v. Germany (DE, FR)