Tuesday, September 13, 2011

Last Week in Luxembourg

Because I spent last week getting ready for my Ph.D. defence, actually defending, and then celebrating, last week’s judgements had to wait until today:

Quite rightly, Aldo Patriciello will be stripped of his immunity as an MEP. Cf. the blog post I wrote when AG Jääskinen delivered his opinion in this case.

The Grand Chamber also looked at some Danish tax creativity. The Danish government refused to reimburse a tax paid in error, the error being that the tax was found to violate Community law. The reason why they’re not reimbursing is that to do so would create an unjust enrichment, given that the tax was enacted in a revenue neutral manner. The Grand Chamber won’t bite: such an argument only works if the objection is that the tax has already been passed on to the consumer. Lady & Kid et al. v. Skatteministeriet

In the War on GMOs, the score came out 2-2. In the big Grand Chamber case of Bablok et al. v. Bayern, GMOs only won on the first question. On the other two, GMOs lost. Accidentally including them in honey still counts, and there will be no general tolerance threshold analogous to the one explicitly mentioned for labelling in art. 12(2) of Regulation 1829/2003. Then again, the French government probably crossed a few lines in banning a GMO crop that had previously been authorised by the Commission. Monsanto et al. v. Ministre de l’Agriculture et de la Pêche

In Paint Graphos, the First Chamber gives some guidance in a case about (alleged) state aid in the form of tax breaks for producers’ and workers’ cooperative societies in Italy.

In Air Transport Law, the Court found that environmental legislation is not normally an “operating restriction” in the sense of art. 2(e) of Directive 2002/30, “ unless, in view of the relevant economic, technical and legal contexts, it can have the same effect as prohibitions of access to the airport in question.European Air Transport v. Région Bruxelles-Capitale

The Dutch NOx emissions trading scheme, which had been classified by the Commission as illegal state aid, but had been approved by the Court of First Instance, has now been condemned again by the ECJ. The way in which NOx credits are given away free of charge is not permitted under EU law. Commission v. Netherlands

In Hennings, there is some confusion about collective bargaining and age discrimination. The Court sides against both. (Or rather, it says that its judgement declaring the age discrimination at issue in the case at bar does not interfere with the parties’ collective bargaining rights. Of course, saying it doesn’t make it so.)

If the Court declares a Belgian law incompatible with Community Law, is Belgium allowed to start the limitation period for damages from the day the law was enacted, instead of some later day? The Fourth Chamber says it is, meaning that in the case at bar the damages claim was time barred long before the law was actually annulled in Luxembourg. Q-Beef v. Belgium

AG Kokott has a nice head-scratcher: What to do about a continuous competition law infringement that started before a country’s accession and was – subsequent to that accession – penalised by the Commission? Is the national competition authority still competent to go after the offending companies for the pre-accession period? The AG argues that it is. Toshiba Corporation and Others

In Hypoteční banka, a.s. v. Udo Mike Lindner (NL, DE, FR), AG Trstenjak also does not have it easy. The case concerns the appointment of a mandataris at litem to stand in for the defendant in a suit for non-payment of a mortgage loan. (Mr. Lindner cannot be located.) Since the defendant is German, and the case is otherwise located in the Czech Republic, the mandataris decided to earn his keep by making a list of objections to his own appointment under Regulation 44/2001. The AG thinks that some of these objections are well founded.

More creativity: social security for a Dutch worker living abroad and working on a drilling platform on the Dutch part of the continental shelf. AG Cruz Villalon thinks he should still get his Dutch disability benefits. Salemink v. UWV (NL, DE, FR)

AG Jääskinen considers the tax regime applicable to France Télécom between 1994 and 2002, and finds no reason to disagree with the Commission’s conclusion that this involved unlawful state aid. France Télécom v. Commission (DE, FR)

AG Mengozzi argues that the Rome II Regulation on the law appliccable to torts only applies to torts committed after its entry into force, i.e. after 11 January 2009. This is a difficult case, given the literal text of art. 31 and 32: “This Regulation shall apply to events giving rise to damage which occur after its entry into force.” And “This Regulation shall apply from 11 January 2009 (...).” Somehow, the referring court thought that art. 297(1), third sentence TFEU affected the outcome. Deo Antoine Homawoo v. GMF Assurances

AG Mengozzi thinks the owner/passenger of a car (or rather: his insurance company) should pay the damage caused by an accident if the driver, whom he gave permission to drive, does not have insurance. Note that this situation of the victim and the negligent insured being the same person only comes up under the usual British way of arrranging car insurance. In the continent, the insurer would always pay out, since the insurance would essentially be connected to the car only, not the driver. Churchill Insurance Company Ltd. v. Wilkinson

Because Bulgaria is awesome, they have a law that allows certain debtors of the state to be banned from leaving the country. AG Mengozzi, however, does not like it, because it does not meet the stringent requirements of the free movement directive, art. 27. Aladzhov (NL, DE, FR)

Finally, for those who had not heard of it yet: the Amicuria EU Law database is the greatest thing since straight bananas.

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

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