This Week in Luxembourg

The first Grand Chamber judgment this week concerned the corporate tax regime in Gibraltar. The Commission thought that it involved illegal state aid, the General Court disagreed, and now the Grand Chamber sided with the Commission. The reform does display unlawful selectivity in its treatment of offshore companies, contrary to what the General Court had said (par. 85-110). In the remainder, the Grand Chamber takes care of the case itself, noting for example the absence of any stare decisis rule for the Commission (par. 136). Commission v. Gibraltar and UK

The Grand Chamber also released another sequel to Ruiz-Zambrano, following McCarthy in May, this time in the form of five cases coming from Austria. The big difference was that this time there was no risk of Union Citizens being deprived of subsistence, since they would be taken care of regardless of whether their loved ones would be allowed to stay in Austria. For that reason, the Court came out on the side of the Austrian government. This whole “genuine enjoyment” test looks like it will be a pretty rare creature. Dereci et al. v. Bundesministerium für Inneres cf. Eutopialaw

In 2006, Germany became very unhappy about an intended audit by the Court of Auditors of its VAT system, the fear being that the audit would extend “to [a] review [of] the economic policy of the Member States in so far as that policy contributes to the creation of GNI which itself underpins the calculation of an own resource of the European Union” (par. 39), so they threw up a huge fuss, for which they were now finally rebuked by the Grand Chamber. Commission v. Germany

Zaza Retail cleared up some issues about territorial insolvency under art. 3(2) of Regulation 1346/2000, as well as the role of the public prosecutor as the plaintiff asking for insolvency. The result is that the Belgians were entitled to have Zaza declared bankrupt insofar as it was active in Belgium, but not prior to its bankruptcy in the Netherlands.

As I already explained when AG Trstenjak’s opinion (NL, DE, FR) came out in September, the mortgage non-payment case of Lindner is a bit complicated. The Court now cut the knot and decided that the Czech court was entitled to appoint a mandataris ad litem once the defendant could not be located, thus avoiding some of the problems the AG ran into. Hypoteční banka, a.s. v. Udo Mike Lindner

The Court signed off on Bulgaria’s practice of banning certain criminals and other offenders from leaving the country for extended periods of time, as long as the measure is proportionate. Gaydarov and Aladzhov

Italy was slapped with a penalty payment of € 30 million for every six months that they fail to recover a sum of illegal state aid (if they recover part, the payment decreases proportionately), as well as a lump sum fine of € 30 million. Commission v. Italy

Since the Court’s case law on terror suspect asset freezes is now pretty well settled, appeals are normally unsuccessful. That goes for this week’s Bank Melli v. Council as well.

Speaking of Iran, AG Yves Bot has a pretty fun case concerning the criminal prosecution of three individuals suspected of selling nuclear technology to Iran. The German court wants to know whether a high-tech oven is an “economic resource” even without the software (really?) and what it means to participate “knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the [embargo]”. (Cf. art. 7(4) of Regulation 423/2007). The answer probably isn’t very helpful, but OK. Federal Prosecutor v. Afrasiabi et al. (NL, DE, FR)

In O’Brien, AG Kokott considers whether judges are “workers” for the purposes of the law on part-time work. Initially, she seems to dodge the issue a little, declining to make it an autonomous concept of EU law but declining to give the MS free reign either, but in reply to question 2 she concludes that discrimination between full-time and part-time judges is not permitted.

AG Jääskinen concluded that the data retention directive 2006/24 does not apply to a request for access to the data covered by that directive in the course of a civil proceeding. In this case, that means that online copyrights are once again safe. Bonnier Audio et al. v. Perfect Communication Sweden (DE, FR)

Finally, it looks like the Polish Constitutional Court incorporated the Solange reasoning into Polish law. EU law is presumptively constitutional, but it may not always be. Verfassungsblog