Thursday, October 18, 2012

This Week in Luxembourg

This week the Grand Chamber (Judge Tizzano) ruled in Hungary v. Slovakia, siding with the latter. Slovakia was entitled to forbid the President of Hungary from entering its territory. This seems like one of those highly contested judgments, because there are a few steps of the argument missing. The Court cites Kadi for the proposition that international law is part of the European legal order (!), and explains that under international law Slovakia is allowed to keep him out, but skips over the question of why that rule is not superseded by art. 21 TFEU. Also odd: The Commission intervened in support of Slovakia. Cf. Verfassungsblog and European Law Blog

The Grand Chamber (via the brand new Vice-President of the Court Judge Lenaerts) also held that the Austrian Datenschutzkommission is insufficiently independent from the Federal Chancellor in violation of Article 28(1) of Directive 95/46.

In the base closures case of United States v. Nolan, the Court (Judge Juhász) deviated from AG Mengozzi’s opinion and declared the prejudicial question inadmissible. The Directive in question, Directive 98/59, explicitly excludes from its scope “workers employed by public administrative bodies” so there is no issue of EU law here. I suppose that that is a substantive answer disguised as a procedural one. Note that there are some interesting considerations at the end regarding when the Court might nonetheless be prepared to answer a question like this one. (par. 46-56) An example of that happening is in the Belgian case of Punch Graphix v. Belgium, where Belgian law referred to EU law even where the latter didn’t technically govern.

In the UK, it turns out, it rains a lot, which gives the UK problems in a few places to comply perfectly with art. 3, 4, and 10 of Directive 91/271. So the question is whether that Directive leaves room for the occasional water overflow. The Court (Judge Borg Barthet) now held that the extent of overflow at the two facilities at issue in Commission v. UK can hardly be considered to be limited to “unusual” situations, meaning that the UK has failed to fulfill its obligations.

In tendering law, the Court (Judge Šváby) disappointed a Hungarian and a German company who were hoping to get around the requirement in the tendering document of three consecutive years without a loss by referring to the differences in accounting rules across Member State, or to their relationship with their respective parents. As long as the criterion is reasonably justified in light of the requirements of the project, the companies are out of luck. Cf. art. 44 and 47 of Directive 2004/18. Édukövízig and Hochtief v. Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

The attempt by the Dutch authorities to put “formally limited residence permits” – in this case limited to the exercise of the duties of a spiritual advisor – under the exception for au pairs and seasonal workers of art. 3(2)(e) of Directive 2003/109 will almost certainly not fly. The Court (Judge Silva de Lapuerta) left room for the possibility that the limitation might prevent, as a practical matter, long-term residence, but that does not seem to be the case here. Staatssecretaris van Justitie v. Singh

The Court (Judge Lenaerts) followed AG Cruz Villalón and defended the protection of databases under art. 7 of Directive 96/9. Football Dataco et al. v. Sportradar

You still can’t give away fake prizes as a marketing tool. Purely Creative et al. v. Office of Fair Trading Cf. Recent Developments in European Consumer Law Blog and, more critically, the European Law Blog

CE Markings may not be made mandatory, because that would be a Measure Having Equivalent Effect. Elenca v. Ministero dell’Interno Cf. The IPKat

The Czech Republic unlawfully allowed butter spread to be sold as butter. Commission v. Czech Republic

AG Jääskinen’s opinion in Ettwein v. Finanzamt Konstanz suggests that, yet again, the Swiss – or in this case Swiss residents – should bear the negative consequences of the fact that Switzerland is not in the EU. In this case the dispute concerns the direct taxation of self-employed frontier workers.

In the EAW case of Ministerul Public - Parchetul de pe lângă Curtea de Apel Constanţa v. Radu, the robbery suspect in question is throwing a lot of serious sounding legal arguments against the wall to see if they stick. AG Sharpston gives them exactly as much attention as they deserve, which is to say: not much. The most interesting answer is that a Member State may not refuse to execute a European Arrest Warrant on the grounds that the requesting state has not, or not correctly, transposed the EAW Framework Decision.

AG Kokott dealt with the question of what it means for an Aarhus-Convention procedure to be “prohibitively expensive” (cf. art. 3(7) of Directive 2005/35) and, more importantly at which stages of the procedure this should be verified and by whom how. R. (on the application of Edwards) v. Environment Agency and Others Cf. UK Human Rights Blog part 1 and part 2.

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