Wednesday, January 23, 2013

Last Week in Luxembourg

Last week’s Grand Chamber judgment deals with two of my favourite things: The Aarhus Convention and Elchinov-style right to as prejudicial questions issues. Unsurprisingly, the Court (Judge Bay Larsen) concluded that the Slovak Supreme Court could even ask a prejudicial question while it was acting on remand from the Constitutional Court. As to substance, the Court concluded in favour of the plaintiffs, i.e. in favour of the environment. Križan et al. v. Slovenská inšpekcia životného prostredia

In Geodis Calrberson v. FranceAgriMer the Court (Judge Safjan) found that Article 16 of Commission Regulation 111/1999 is in the nature of an arbitration clause within the meaning of Article 272 TFEU. This means that the plaintiff in the original French case loses, and that they will have to start an identical case in Luxembourg to get the money they claim they are owed.

The Unfair Commercial Practices Directive is exhaustive in the sense that it precludes a national court from ordering the cessation of a commercial practice not covered by Annex I to that directive on the sole ground that the practice has not been the subject of prior authorisation by the competent administrative authority, without itself carrying out an assessment of the unfairness of the practice in question against the criteria set out in Articles 5 to 9 of that directive. Köck v. Schutzverband gegen unlauteren Wettbewerb

Mr. Zakaria had his papers checked extensively when he flew into Riga airport in 2010. Ultimately, he was allowed into the Schengen area, but he found his treatment “offensive and provocative”, and the delay caused him to miss his connection. So new he’s trying to figure out how to sue the Latvian border police. Unfortunately, he cannot rely on art. 13(3) of the Schengen Borders Code, because that only covers a refusal of entry.

In a case of significant importance, AG Kokott looked at the definition of a “regulatory act” under art. 263 TFEU, an issue so far tackled only by the General Court in its Microban judgment and in its Canadian seal products order. In her opinion, the AG endorsed the General Court’s interpretation, which held that legislative acts enacted through the normal legislative procedures were not “regulatory”. As a result, the trade in seal products continues to be banned. Inuit Tapiriit Kanatami and Others v. Parliament and Council

AG Mengozzi delivered four opinions on suits brought by the Commission against Council decisions under the state aids Regulation 659/1999 regarding aid for investment in the purchase of formerly state-owned agricultural land in four different new Member States. The problem in each case is that the Council cleared an aid scheme that the Commission thought they’d already forbidden. Commission v. Council (1, 2, 3, 4)

In the General Court, Bruno Grollnisch, MEP lost his suits against the Parliament’s decisions to lift his immunity and to not defend it. Grollnisch v. Parliament (FR) Cf. Journal du Marché Intérieur blog

More interestingly, the General Court examined a complaint by an Italian motorway company against a Commission decision not to pursue a state aid case against one of its competitors. The Court (Judge Pelikánová) concluded that the applicant was only partially individually concerned, which reflects some interesting issues regarding the extent to which motorways compete. To the extent that the case is admissible, it is rejected on the merits. Aiscat v. Commission (NL, DE, FR)

Earlier this month, there was a rare example of the use of art. 99 Rules of Procedure, whereby the Court may deal with an “easy” prejudicial question by reasoned order instead of with a full oral hearing and judgement. I feel confident in my prediction that this will happen more often in the future. Brunovskis v. Lauku atbalsta dienests (FR)

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