This Week in Luxembourg

The ECJ is back with a vengeance. In Parliament v. Council (Schengen Borders Code), the Grand Chamber (Judge Von Danwitz) held that Council Decision 2010/252 was ultra vires, because it didn’t so much “implement” the SBC as legislate on essential elements of the subject-matter. The Court emphasized that in doing so the Council made political choices that potentially affected people’s fundamental rights, two factors that led it to conclude that this was a matter for the EU legislator instead. Cf. European Law Blog and my blog.

Another whopper has the Grand Chamber (Judge Bay Larsen) get involved in the debate about what to do about refugees who are persecuted for their actions, when those actions involve fundamental rights. Interpreting Directive 2004/83, the Court steers a middle course: not all interference with the freedom of religion is persecution, but a refugee cannot reasonably be expected to abstain from his religious practices. Germany v. Y and Z Cf. Verfassungsblog

In a fun bit of legal interpretation, the Grand Chamber (Judge Ilešič) held that art. 3(2) of the free movement directive does not create an automatic right of entry or residence for the people who qualify under that article, like dependants and non-spouse partners. They are entitled, however, to a careful examination of their case. Secretary of State for the Home Department v. Rahman et al. Cf. European Law Blog

Finally, the Grand Chamber (Judge Ó Caoimh) handed down a sequel to the 2009 Wolzenburg case. This time, the subject of the European Arrest Warrant is a Portuguese man living in France with his French wife. France, however, has only used the possibility of exception created by art. 4(6) Framework Decision for French nationals. The Court now holds that this is a violation of art. 18 TFEU and instructs the French court to evaluate the applicant’s connections with France. Lopes Da Silva Jorge

The judgement in Deutsches Weintor v. Land Rheinland-Pfalz is still just as dumb as the entire rest of this litigation. The questions, because they are too narrow, force the Court (Judge Malenovský) to accept the premise that “easily digestible” is a health claim under Regulation 1924/2006. The “hail Mary” attempt to bring the Charter into it also fails, although I do wonder why that argument didn’t mention free speech.

In Trade Agency Ltd v. Seramico Investments, the Court (Judge Tizzano) stood up for the rights of the defendant when it comes to the enforcement of in absentia judgements under Regulation 44/2000. The court that is asked to enforce such a judgement has jurisdiction to check whether the defendant had actually been served properly, and it may refuse to enforce an in absentia judgement where the original judgement is so obviously faulty that the defendant’s art. 47 Charter right to an effective appeal has been breached. Cf. UK Human Rights Blog

Regulation 617/2010 concerning the notification to the Commission of investment projects in energy infrastructure was enacted based on art. 337 TFEU (gathering information in general) and art. 187 Euratom (gathering information), but, according to the Court (Judge Ó Caoimh), the correct legal basis would have been art. 194 TFEU (energy). Somehow the latter is more “lex specialis” than the former. Parliament v. Council

If anyone wants to know how to define “pharmacological action”, which is part of the definition of “Medicinal product” in Directive 2001/83, the (lengthy and technical) answer (per Judge Borg Barthet) is in Chemische Frabrik Kreussler v. Sunstar Deutschland.

In the Fortis litigation, the Court (Judge Ilešič) held that the Dutch courts were allowed to summon the board members of Fortis to the Netherlands to testify. Regulation 1206/2001 simply means that the Dutch court was entitled, but not obligated, to have them heard in a (francophone) Belgian court instead. Lippens et al. v. Kortekaas et al.

“Article 15(1)(c) of Regulation No 44/2001 (…) must be interpreted as not requiring the contract between the consumer and the trader to be concluded at a distance.” That provision deals with consumer contracts specifically. Mühlleitner v. Yusufi and Yusufi Cf. Recent Developments in European Consumer Law Blog

In Railway Regulation law, AG Jääskinen published a whole series of opinions in infringement cases regarding Directive 91/440. He recommended that Spain (DE, FR) and Portugal should lose, that Hungary (DE, FR) should lose partially and that Germany and Austria should win. Once I’ve had the chance to look at these opinions more carefully, I’ll be able to say how the Commission managed to achieve only a 50% score.

According to AG Mengozzi, the Parliament’s most recent attempt to reduce the number of times it has to travel to Strasbourg is as flawed as the previous one. France v. Parliament (FR) Cf. EUObserver

AG Kokott does semantics and competition law: We know what it means for an agreement that restricts competition “by effect” to have an “appreciable” effect on competition, but what about a restriction “by object”? The AG explains that the Commission’s de minimis notice is not binding law, but that it is a guide for interpreting art. 101 TFEU. Discussing some case law, she gets no further than that such an effect must be shown somehow, but not (necessarily) by reference to market share thresholds. Expedia Inc. Cf. Kartellblog

AG Bot had an opinion on a judgement declining jurisdiction, which – he says – qualifies as a judgement in the sense of Regulation 44/2000. More interestingly, he says this judgement has res judicata for a 2^nd court seized of the case, regardless of whether national law says so or not, with the exception of art. 35 of Regulation 44/2000. Gothaer Allgemeine Versicherung AG et al. v. Samskip

AG Jääskinen also has a procedural law mess concerning the appointment of experts in civil suits. Even though it is about a railway accident, I don’t think I want to know any more than that. ProRail v. Xpedys et al.

AG Trstenjak argued that a blanket ban on holding a sale without permission from the authorities is in violation of Directive 2005/29 on unfair b2c commercial practices, unless the authorities are allowed and indeed required to assess on a case to case basis whether there is actually anything unfair going on. Köck v. Schutzverband gegen unlauteren Wettbewerb (NL, DE, FR)