This Week in Luxembourg

The Grand Chamber (Judge Arabadijev) annulled the General Court’s state aid judgment in French Republic et al. v. Commission. Siding with the Commission, the Court criticised the General Court’s standard for the connection between the state resource and the advantage at issue, as well as its analysis of the nature of the alleged advantage. The case now goes back to the General Court so that it can deal with France’s other arguments. Bouygues Télécom and Commission v. France Cf. e-comm blog and The Antitrust Hotch Potch

Belgium created a new and innovative fee for mobile telecoms operators, and the Court (Judge Jarašiūnas) approved. The operators’ challenge under art. 3 and 12-14 of the Authorisation Directive was rejected. Belgacom et al. v. Belgium

As expected, the Court (Judge Bonichot) shot down the Hungarian rule for counting the number of days a 3^rd country national spends in the EU under the local border traffic Regulation. The Court held that every time a person crosses the border the count starts anew. Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége v. Shomodi

The Court rejected an Austrian attempt to exempt small airport extensions from the rules on environmental impact assessments. Salzburger Flughafen v. Umweltsenat

In RWE Vertrieb v. Verbraucherzentrale Nordrhein-Westfalen, the Court (Judge Safjan) had some fun trying to figure out the interplay between the unfair consumer contracts directive and the sectoral regulation for the gas sector. Can an energy company just unilaterally increase your prices? The Court concluded that it can, as long as the whole thing is transparent, based on clear principles, etc. Cf. Recent Developments in European Consumer Law

AG Bot levelled significant criticism at the General Court’s handling of the second Kadi case in 2010, concluding for a variety of reasons that that judgment should be annulled, and that the General Court should have taken a more modest approach in its judicial review, both when it comes to the intensity of scrutiny, and to the scope of law involved. Commission et al. v. Kadi Cf. Eutopia Law Blog, Verfassungsblog, EJIL: Talk! and one of Kadi's lawyers on the brand new European Sanctions Blog

AG Kokott considered the doctrine of standing under art. 263 TFEU in the Spanish state aid case of Telefonica v. Commission (NL, DE, FR, ES). The General Court had dismissed the case by order on the grounds that the plaintiff was not individually concerned while this case was not caught by the new exception for regulatory acts which do not entail implementing measures. The AG agrees that Telefonica does not have standing, but only because a state aid decision requires implementing measures.

That AG also argued that the Spanish special tax on the windfall profits associated with the free allocation of emissions rights was permissible under the relevant Directive, Directive 2003/87, unless it acted to disincentivise energy efficiency. Iberdrola v. Administración del Estado

For reasons to do with their opt-in, the UK are challenging the legal basis of the Council’s Decision establishing a mandate for the EU in the EEA Joint Committee, so that Regulation 883/2004 might be extended to the EEA. The “procedural legal basis” is, undisputedly, art. 218(9) TFEU, but the UK is challenging the choice of art. 48 TFEU as the “substantive” legal basis. Instead of the free movement of workers law, the UK prefers immigration law as a basis. AG Kokott disagrees. UK v. Council

AG Mengozzi considered a Belgian case where the plaintiff tried to use Directive 2006/114 on misleading advertising to go after an arguable case of domain name hijacking. The AG proposed, not very helpfully, that registering such a domain was not captured by the directive, but that using it might be, and that the national court should sort out the rest. Belgian Electronic Sorting Technology v. Peelaers and Visys (NL, DE, FR)

AG Mengozzi also handed down an opinion in the case of K. (It’s not otherwise very interesting, but the way in which the Finnish method for citing cases resulted in the most Kafkaesque of case names proved impossible to resist.)

In Alopka et al. v. Ministre du Travail, de l’Emploi et de l’Immigration (FR), AG Mengozzi reaffirmed the Ruiz Zambrano line of case law. Unlike in many other genuine enjoyment cases, where the plaintiff was unsuccessful because Ruiz Zambrano was distinguished, here it looks like the precedent is directly on point.

In the state aid case of HGA et al. v. Commission, AG Bot said that the General Court got it wrong to attach as much importance as it did to the question of the aid was requested by a given recipient. However, he argues that the judgment should nonetheless be upheld, because the remaining reasoning is sufficient to bear the conclusion that the Commission’s decision is correct. Joined Cases Regione autonoma della Sardegna (T-394/08), SF Turistico Immobiliare Srl (T-408/08), Timsas Srl (T-453/08) and Grand Hotel Abi d’Oru SpA (T-454/08) v European Commission

Following the recent decisions on the merits by the General Court in the first REACH cases against the European Chemicals Agency (ECHA), AG Cruz Villalon now handed down the first opinions in appeals against the General Court orders dismissing other REACH suits. He concluded that the General Court was wrong to hold that the suits were not aimed at a challengeable act, that they were out of time and that that belatedness was not the consequence of an excusable error. Polyelectrolyte Producers Group and SNS v. ECHA

AG Sharpston took the Aarhus issues regarding the distinction between legislative and administrative acts, first discussed in Flachglas Torgau (where she also wrote the opinion), to the next level. I’m not sure what the logic of her proposed answer is, except that it seems to turn the Solange rule back on Germany. Deutsche Umwelthilfe v. Germany

Everyone’s favourite MEP, Sophie in ‘t Veld, achieved a small win against the Commission. She sued over the Commission’s refusal to give her all the documents relating to the draft international Anti-Counterfeiting Trade Agreement (ACTA) that she asked for, and the General Court (Judge Dehousse) now granted her access to some of the missing ones. In ‘t Veld v. Commission Cf. EU Law Blog

ITER may well be the single coolest thing going on in Europe right now, and today it was on the receiving (and winning) end of a public procurement suit. It turns out you cannot ask for the annulment of “tous les actes adoptés subséquemment” (par. 48-50), and otherwise nothing very interesting seems to have happened; the applicant’s bid was quite rightly thrown out in pre-screening. Nexans France v. Entreprise commune européenne pour ITER et le développement de l’énergie de fusion (FR)

Following some creativity with import licenses for bananas, the Commission allowed a remission of duties in respect of the customs agent, who had not obviously erred, but not in respect of the trader, the applicant, who were held to have been negligent. The General Court (Judge Schwarcz) now annulled that decision, holding that insufficient evidence as to negligence had been adduced. Van Parys v. Commission (yes, that Van Parys)