Friday, September 14, 2012

This Week in Luxembourg

The Grand Chamber (per Judge Bay Larsen) dealt with some issues regarding the effect of Directives that have not yet entered into force in the environment law case of Nomarchiaki Aftodioikisi Aitoloakarnanias et al. v. Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon et al. The actual dispute concerned a partial diversion of the river Acheloos in upper Thessaly, which allegedly conflicted with Directive 2001/42 and Directive 92/43. Cf. European Law Blog

AG Trstenjak applied Directive 93/13 on unfair terms in consumer contracts to the energy sector. Interpreting the term “mandatory statutory or regulatory provisions” from art. 1(2) of the directive, she argues that this should also apply to provisions that the parties to a contract can opt out of. Combining that directive with art. 3(3) of Directive 2003/55, the AG finds that RWE’s practice of announcing price increases and then going ahead with them if no one complains is contrary to EU law. RWE v. Verbraucherzentrale Nordrhein Westfalen (NL, DE, FR) Cf. Recent Developments in European Consumer Law blog

AG Jääskinen considered the appeal in Switzerland v. Commission this week. While the General Court had bypassed the question of admissibility, relying on Council v. Boehringer and France v. Commission to reject the action on the easier merits aspect instead, the AG treats it head-on. He argues that Switzerland does not have the right to sue as a privileged applicant against an alleged violation of an EU-CH treaty, but that Switzerland’s action is nonetheless admissible because it is directly and individually concerned. On the merits he sides with the General Court. (The case was about Zürich airport, of course.)

AG Bot opined that in exceptional circumstances a Member State may decline to explain to someone why they’re being kicked out of the country despite the explicit rule of art. 30(2) of the Free Movement Directive. The problem is, of course, that if someone really is a serious threat to public security, the Member State will often prefer not to explain how they know this. The AG thinks the special advocate procedure is a good alternative. ZZ v. Secretary of State for the Home Department (NL, DE, FR)

AG Sharpston said: “Article 45 TFEU must be interpreted as meaning that a residence requirement such as that included in the skuldsaneringslagen (2006:548) (Law on debt relief) as a condition for obtaining debt relief constitutes a restriction on the freedom of movement of workers because it is liable to prevent or deter a worker from leaving Sweden to take up employment in another Member State.” Radziejewski v. Kronofogdemyndigheten i Stockholm

The General Court (per Judge Van der Woude) annulled the Commission’s state aid decision in Société nationale maritime Corse-Méditerranée. The Commission had found the bailout in question consistent with the Common Market, and now the General Court disagrees. Simply put, the Commission – and, by extension, France – were too generous in giving SNCM money to keep it upright rather than simply liquidating it and starting over. Corsica Ferries v. Commission (FR) Cf. Europolitics

Much to everyone’s disappointment, the ECtHR did not follow its precedent of Guzzardi v. Italy in Nada v. Switzerland. Instead of finding that being stuck in a 1,6 sq km exclave was a deprivation of liberty, the Court only held that it resulted in a violation of art. 8. Moreover, the whole UN Taliban sanctions list business was held to be a violation of art. 13, the right to an effective remedy. In case anyone was wondering, Guzzardi was “exiled” to Asinara, which is 56 sq km. Cf. EJIL: Talk!, the ECHR Blog and this blog post by Thobias Thienel

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