This Week in Luxembourg

In Åklagaren v. Åkerberg Fransson, the Court (Judge Safjan) applied the Charter to a case that was within the scope of EU law but not a necessarily an implementation of EU law in the sense of art. 51(1) Charter. Also fun, the Court discusses the relationship between EU fundamental rights law, ECHR law and national fundamental procedural and fundamental rights law (par. 43-49). Cf. EULaw Student Blog, European Law Blog, Eutopia Law Blog (1, 2), and Verfassungsblog (1, 2)

The execution of an EAW cannot be made conditional on the in absentia judgement in question being open to review, not even if the national court invokes the Charter. Cf. Framework Decision 2009/299. Notice also the national court’s question 3, which invoked art. 53 Charter in order to be able to use national constitutional law to evaluate a rule of EU law. Unsurprisingly, the Court (Judge Safjan) did not like that either. Melloni v. Ministerio Fiscal Cf. Eutopia Law Blog and prof. Joseph Weiler on EJIL: Talk!

Delay compensation for air passengers is not conditional on delayed departure, but only on delayed arrival at the passenger’s final destination. (Judge Malenovský.) Air France v. Folkerts Cf. European Law Blog, Eutopia Law Blog and Recent Developments in European Consumer Law Blog

A number of cases were handed down this week about the 1st Railway Package, all of them courtesy of Judge Borg Barthet and AG Jääskinen. A quick rundown:

• In Commission v. Germany, the Court followed the AG and dismissed the action.
• In Commission v. Austria, the Court followed the AG and dismissed the action.
• In Commission v. Spain, the Court followed the AG and found that Spain had failed to correctly transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (Charges are ultimately set by the minister, there is no performance scheme and the minister has too much discretion in how to deal with capacity scarcities.)
• In Commission v. Hungary, the Court followed the AG and found that Hungary had failed to transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (The financial equilibrium of the infrastructure manager is not ensured, the charges are not linked to direct costs, and there is no incentive scheme.)

In Kenny et al. v. Commissioner of An Garda Síochána et al., the Court (Judge Silva de Lapuerta) tackled a straight-up indirect gender discrimination case, providing some guidance – though perhaps not as much as the Irish court would have liked – on the burden of proof for the defendant if a pay difference is to be justified.

In Ettwein v. Finanzamt Konstanz for once the Swiss don’t get the short end of the stick. The EU-CH Agreement on the Free Movement of Persons requires equal treatment here, according to the Court (Judge Juhász).

In Arrango Jaramillo et al. v. EIB, the Court reviewed a judgement by the General Court (FR) on appeal from the Staff Tribunal (FR). Even though such a review procedure requires the ECJ to be quite deferential (“if it affects the unity or effectiveness of EU law”), it was not pleased and sent the case back to the General Court.

The Greek State Aid case of Ellinika Nafpigeia v. Commission (FR) took an unexpected turn for the interesting when the appellant – a shipbuilder – invoked art. 346 and 348 TFEU in order to get out of repaying the aid. The Court (Judge Silva de Lapuerta), however, relied heavily on the last clause of art. 346 (1)(b) TFEU to interpret that article even more narrowly than it was already going to do anyway. The General Court judgment is here, also in French.

The Court (Judge Arabadijev), explained to a Portuguese court that a system of compulsory training for chartered accountants does fall under art. 101 TFEU, meaning that, once it is shown that it is problematic from a competition law point of view, it will require an equivalently weighty justification. Ordem dos Técnicos Oficiais de Contas v. Autoridade da Concorrência


AG Kokott goes out on a limb in competition law by arguing that a company that relies in good faith on advice by outside counsel saying that its behaviour is lawful under competition law cannot be punished for infringement if the competition authorities disagree. I suppose she had the Verbotsirrtum of § 17 StGB (translation) in mind, but I doubt that the Court will go for it. Schenker and Co AG et al.

AG Mengozzi proposed that the Commission should win its cartel appeal in Commission v. Aalberts Industries et al.

AG Jääskinen, on the day of his railway victory, did some public procurement law: “Articles 47(2) and 48(3) of Directive 2004/18 (…) preclude national legislation (…) which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria concerning the economic and financial standing and/or technical and/or professional ability of an economic operator.” That seems quite obviously right. Swm Costruzioni 2 and D.I. Mannocchi Luigino v. Provincia di Fermo Cf. Eutopialaw

Last Week in Luxembourg

In ProRail v. Xpedys et al, the Court (Judge Ilešič) considered whether the procedure created by Regulation 1206/2001 for a Court to enlist the help of the Court in another Member State for taking evidence there is mandatory. The Court found that it is not; the Belgians were entitled to simply appoint an expert to report on the situation in the Netherlands without involving the Dutch courts.

In the mutual recognition of qualifications case of Ministero per i beni e le attività culturali et al. v. Ordine degli Ingegneri di Verona e Provincia et al., there is something noteworthy going on in par. 35, where the Court deals with the objection that this is a purely internal matter. It argues that it may still answer the prejudicial question where the national court is required by its domestic law to treat internal cases the same as cross-border cases.

The Court (Judge Berger) discussed the application of the rule of audi et alteram partem to the situation where a court has found, of its own motion, that a contractual term is unfair under Directive 93/13. The conclusion is that parties must be invited to submit their views about which remedies the Court should impose. Banif Plus Bank Zrt v. Csipai Cf. Recent Developments in European Consumer Law Blog post 1 and post 2.


Relying on art. 24(2) Charter, AG Cruz Villalón proposed bringing the best interest of the child standard into Dublin-II asylum law. As a result he concluded that when an unaccompanied minor (cf. art. 6 of the Dublin-II Regulation) applies for asylum in more than one Member State, the best interest of the child will usually (but not always) require that the application be treated in the Member State of the most recent application. MA et al. v. Secretary of State for the Home Department

AG Sharpston handled yet another case on financial aid for students, arguing that the German three-year rule should suffer the same fate as its Dutch equivalent. Joined cases Prinz v. Region Hannover and Seeberger v. Studentenwerk Heidelberg Cf. Eutopia law blog


Surprisingly, Melli Bank lost its latest asset freeze suit. Some of its heads of claim were held to be inadmissible, and the others were rejected on the merits. Melli Bank v. Council

This Week in Luxembourg

This week’s case of the week is Protimonopolný úrad Slovenskej republiky v. Slovenská sporiteľňa a.s. (Judge Rosas), where the Court held that it is irrelevant for the purposes of art. 101 TFEU that the competitor-“victim” of the alleged cartel was operating on the market illegally, in this case because it didn’t have the right banking licenses. If you ask me, this is a cool result, even though it is clearly correct. I’m actually surprised that the Court invoked “anti-competitive by object” in order to get there. Surely the real victims, the customers, were still affected? Cf. European Law Blog

If you are amused by subrogation of rights in the context of insurance contracts, you should be doubly amused by this week’s Refcomp v. Axa et al. (Judge Berger), which does subrogation in a cross-border conflict, focusing on art. 23 of the Brussels I Regulation. The result is that the jurisdiction clause in the original contract is not effective against a later successor in rights unless they have actually consented to it.

AG Jääskinen applied Pfleiderer to an Austrian competition law dispute, arguing that the would-be plaintiff in private damages action should have access to the full file regardless of whether any of the parties to the original administrative investigation consent under the principle of effectiveness. (The competition authority had refused.) The AG also considered whether it is OK that the rule for access to such documents is the same for EU competition law and national competition law disputes, but different from the rule for other kinds of national law disputes, arguing that the principle of equivalence is not violated here. Bundeswettbewerbsbehörde v. Donau Chemie et al. Cf.  Eutopia Law Blog

AG Mengozzi approved, in general, of a Luxembourg rule that required residence in Luxembourg for financial aid for students, regardless of where they studied. He just left it to the Luxembourg court to decide on the ultimate question of proportionality. So it appears that after Dutch and Austrian cases, we have now finally found a system that is consistent with EU law, the key being that the Luxembourg rule does not require residence for more than a few months. Giersch et al. v. Luxembourg (DE, FR) Cf. Eutopia Law Blog

Following last week’s Bank Mellat v. Council, this week the Council lost another Iranian asset freeze case against a bank in Bank Saderat Iran v. Council. Both judgements are by Judge Pelikánová. Cf. UK Human Rights Blog

This Week in Luxembourg

Apparently it took a Grand Chamber judgment (Judge Ó Caoimh) to explain why Mr. Radu’s attempt to throw the entire ECHR and Charter at his European Arrest Warrant should fail. In the end, they still ignored some of his more creative arguments, by “taking the first four questions and question six together” (question 5 was inadmissible on the grounds that it was hypothetical) and distilling them into a question about hearing the suspect before issuing an EAW, an idea that is clearly unworkable. Cf. AG Opinion, which is much more exciting, because AG Sharpston actually tried to answer the questions posed.

Just like Radu, the glorious Bulgarian case of Belov also ended in an anti-climax. Rather than analyse whether it was unlawfully discriminatory for the plaintiff to have his electricity meter installed 7 metres above the ground because he lives in a Roma neighbourhood, the Court held that the referring court was not a court, and that the question was therefore inadmissible. Cf. Recent Developments in European Consumer Law Blog

In the area of compensation for denied boarding in air transport law, the Court (Judge Šváby) held that the closing of large chunks of air space due to the eruption of Eyjafjallajökull in 2010 counts as “extraordinary circumstances”. The Court also gives some guidance as to which kinds of sums may still be claimed. McDonagh v. Ryanair Cf. Recent Developments in European Consumer Law Blog, Eutopia law and UK Human Rights Blog (This still leaves the question of whether extraordinary circumstances also covers the days Delta Airlines needed to get its timetable back in order after Sandy last year, given that others did it faster. They refused to pay me compensation, but then they would, wouldn’t they?)

AG Mengozzi had a fairly abstract, but interesting problem of public procurement law: Given that the main public procurement directive applies only to “bodies governed by public law” (art. 1(9)(2)(c), what are we to make of the Ärztekammer in Germany? It is in Annex III to the directive (p. 171), but that only creates a rebuttable presumption (cf. Hans & Christophorus Oymans v. AOK Rheinland/Hamburg). The AG relies on the fact that the Ärztekammer is funded with private dues to conclude that the presumption is in fact rebutted.

Surprisingly, AG Jääskinen left a small window open for the possibility that the Italian regulation for opticians that was at issue in Ottica New Line v. Comune di Campobello di Mazara (NL, DE,FR) might be justified under 49 TFEU. He just ruled out the possibility that requiring a minimum distance between them could be justified on the grounds of public health, while leaving open justification as part of an overarching scheme for providing public health care. Realistically, though, it’s not going to happen.

AG Wathelet concluded that making the membership and fees for a sectoral body (equivalent to a “produktschap” in the Netherlands) mandatory was not state aid, given the 2004 Pearle judgment which already settled that question for the Netherlands. The key point is that the state is not providing state resources, nor controlling this money through some other means. Doux Élevage SNC and Coopérative agricole UKL-ARREE v. Ministère de l’Agriculture and Comité interprofessionnel de la dinde française (CIDEF) (NL, DE, FR)

More contentiously, AG Wathelet also went near the issue of detention for illegal aliens pending their return to their home country. The AG argues that such detention is unlawful under Directive 2005/85 once the alien has asked for asylum, unless abuse of right can be shown. (Which, in an asylum context, will not easily be the case, I imagine, although this particular person might come close, which is why the AG brought it up unprompted.) Arslan (NL, DE, FR)

Tackling one of the less headache-inducing questions that have ever been asked about marketing authorisations for medicinal products under Directive 2001/83, AG Sharpston argues that when a marketing authorisation is given specifying the container the product is to be distributed in, you can’t – subject to some small exceptions – change the container without getting a new marketing authorisation. Novartis v. Apozyt

Cross-border doctors (in the free movement of services sense) received some help from AG Cruz Villalón, because he argued that the approach taken by the German Berufsgericht for the medical profession with regard to pricing was too probably rigid, and that their criterion for deciding what constituted unlawful advertising was certainly too vague. Konstantinides (NL, DE, FR)

In the TRIPs case of Daiichi Sankyo and Sanofi-Aventis v. DEMO Anonymos Viomichaniki kai Emporiki Etairia Farmakon (NL, DE, FR), AG Cruz Villalón takes a menu approach to answering the question. He argues:

1.       That this area of TRIPs (medical patents) is still a Member States competence, meaning that the Court shouldn’t go near it.

2.       In the alternative: That art. 27 TRIPs does not have direct effect.

3.       If the Court doesn’t like either of those: That the plaintiffs have not obtained a patent through the entry into effect of TRIPs.

AG Mengozzi applied the principle of ne bis in idem to the requirement for a corporation to publish its accounts in time. The Austrian law in question might leave somewhat to be desired, from aRechtsstaat point of view, but the AG concluded that this did not rise to the level of a violation of the free movement of services or establishment, of ne bis in idem, the rights of defence or the right to an effective remedy. TEXDATA Software GmbH (NL, DE, FR)

Apparently the Commission and some Member States are still arguing about the national allocation plans for emission rights. AG Kokott argued that the General Court was wrong to annul the Commission’s decision against Latvia, and that it should be asked to try again. Commission v. Latvia (NL, DE, FR)

In the General Court, an unsuccessful tenderer failed to obtain a second chance in Cosepuri v. EFSA, and another (Iranian) asset freeze was shot down in Bank Mellat v. Council (Judge Pelikánová). Cf. UK Human Rights Blog

Finally, the EFTA court this week rejected attempts by British and Dutch investors (by way of the EFTA Surveillance Authority, i.e. the European Commission of EFTA) to make the state liable for its failed deposits insurance scheme under Directive 2009/14. EFTA Surveillance Authority v. Iceland Cf. EJIL: Talk! and European Law Blog