Thursday, April 11, 2013

Today in Luxembourg

The case of Mindo v. Commission (judge Arabadijev) gave the Court the opportunity to explore the consequences of joint and several liability for competition fines when one of the persons liable is bankrupt. It held that the General Court was wrong to ask Mindo to prove that the other creditor, AOI, actually intended to recover part of the fine from Mindo. More embarrassingly for the General Court, the main focus of the judgment was the failure of the GC to state adequate reasons.

In the Aarhus case of R. (Edwards and Pallikaropoulos) v. Environment Agency et al., the Court (judge Bonichot) tried to give some usable guidance as to the rule that judicial proceedings in this area of the law should not be “prohibitively expensive”. It concluded that the applicant’s ability to pay is not the only criterion. It also listed:
  • The reasonableness of the costs in isolation;
  • “The situation of the parties concerned”;
  • The claimant’s “prospect of success”;
  • “The importance of what is at stake for the claimant and for the protection of the environment”;
  • “The complexity of the relevant law and procedure”;
  • “The potentially frivolous nature of the claim at its various stages”;  and
  • “The existence of a national legal aid scheme or a costs protection regime”.
It turns out that the fact that the claimant has not, in fact, been deterred is not dispositive. Also, the criteria have be consistently applied regardless of the stage of proceedings at which the question is considered. Cf. UK Human Rights Blog and GAVC Law Blog

For prof. Heldeweg, if he still has time for such things, the Court (judge Arestis) has a case on the precautionary principle and the Habitats Directive. Sweetman et al. v. An Bord Pleanála

The Court (judge Toader) held that Regulation 44/2001 is applicable to a claim for recovery of a sum unduly paid by a public entity in the context of Nazi-era reparations. The Court also devoted some attention to the question of whether it is necessary for various co-defendants to live outside Germany. Land Berlin v. Sapir et al.

Berger v. Bavaria dealt with food that was unfit for human consumption but not a health risk. The Court (judge Bay Larsen) interpreted art. 10 of Regulation 178/2002 to permit national legislation that allowed for intervention in these circumstances. Note the – somewhat hypothetical – question 2 posed by the national court, which the Court unfortunately ignored.

In Jeltes, Peeters and Arnold v. UWV, the Court (judge Fernlund) held that its judgement in Miethe v. Bundestanstalt für Arbeit was no longer good law in light of the enactment of Regulation 883/2004.  The plaintiffs were all atypical frontier workers in the sense of Miethe because they lived in Belgium or Germany while maintaining a professional and social life almost entirely in the Netherlands.

This week, the Czech Republic gives us a particularly egregious case of gender discrimination by having a law that lets women retire younger than men, and making their retirement age dependent on how many children they’ve raised. Soukupová v. Ministerstvo zemědělství

In his opinion in Commission v. the Netherlands (NL, DE, FR), AG Wathelet offered not one but two reasons why the Commission should lose. The boring one is that the case concerns a purchase of land, not an award of a concession. More interestingly, he discussed the applicability ratione temporis of Directive 2004/18 to this case, which concerned decisions taken at various moments before and after the enactment and the entry into force of that directive.

While Regulation 44/2001 does not apply to Denmark, there is a parallel international agreement between the EU and Denmark that brings it back in through the back door. AG Kokott did some legal interpretation ninja to explain why the Danish court is allowed to ask a prejudicial question notwithstanding the text of the agreement before arguing that the Regulation applied to the case at bar. Her Majesty’s Revenue & Customs v. Sunico et al.

AG Cruz Villalón argues that, for once, the Turkish plaintiff should lose in an EU-Turkey association agreement case. Specifically, he argues that the passive freedom to provide services is not covered by the Agreement, and in the alternative he argued that the plaintiff’s reliance on that freedom was too speculative, given that she only really wanted to get around the visa requirement in order to visit her family in Germany. Demirkan v. Germany Cf. European Law Blog

AG Mengozzi disentangled a case where Germany refused a visa on the grounds that the applicant was likely to overstay. Cf. art. 21(1) Visa Code. Koushkaki v. Germany (NL, DE, FR)

In other news, I came across the Commission’s notification letter concerning its decision to open an art. 108(2) procedures against a number of Dutch football clubs, including PSV.

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