Today in Luxembourg

Following the ruling - last November - in Grimme, the ECJ again has a case concerning the rights of Swiss persons in the common market. As in the earlier case, the argument runs along the lines of "if Switzerland doesn't want to join the EEA, that's fine, but it's their loss", meaning in this case that the freedom to purchase immovable property in EU countries is limited to natural persons, excluding legal persons. Fokus Invest v. FIAG.

AG Jääskinen takes on the British NHS, in their efforts to curtail health care costs by inducing doctors to prescribe certain medicines but not others. According to the AG, they may ask nicely, but they may not implement an incentive scheme, because art. 94(1) of the Community Code relating to medicinal products for human use (Directive 2001/83). It seems to me like that provision was written with inducements by insurers or pharmaceutical companies in mind (cf. par. 52-55), so I'm not sure the ECJ wil go for it. Ass. of the British Pharmaceutical Industry.

In competition law, AG Mazák considered the appeal in the plasterboard market cartel case. In Knauf Gips, there were issues regarding the relevant "economic unit", which would or would not be responsible for an ongoing long-term price-fixing cartel, depending on how the economic unit was defined. (The AG proposed affirmation.) In Lafarge, there was a reasoning problem requiring annulment and, more interestingly, the question of whether someone can be considered a repeat offender if the second offence predates the ruling on the first. (par 98-116) According to the AG, they can be.

On Tuesday, AG Trstenjak considered a very amusing problem: Knowing how trademarks are turned into domain names under Council Regulation 733/2002, establishing the .eu top level domain, and under art. 11 of Commission Regulation 874/2004, the claimant got the Swedish authorities to accept &R&E&I&F&E&N& as a trademark, which he then used as a "prior right" in order to register www.reifen.eu. The AG is having a difficult time seeing how this trick could be challenged in court, except by having the trademark annulled in Sweden. Internetportal und Marketing GmbH v. Richard Schlicht.

Last Thursday, February 4, the Second Chamber ruled in another Turkish free movement of workers case, following the case of Bekleyen v. Land Berlin on January 21. Here, the question is whether the plaintiff should be considered a worker under Decision 1/80, given the fact that she only worked part-time, and that the income thus obtained only added up to about 25% of the legal subsistence wage. The ECJ ruled that she did qualify as a worker. Hava Genc v. Land Berlin.

AdjudicatingEurope has a series of posts on the recent Kücükdeveci ruling: Part 1, part 2 and part 3. There's also this post on EU Law Blog and this one by Julien Frisch. Next week, the Dutch ministry of Foreign Affairs will have a lunch meeting about the case, where Ms. Mirjam de Mol will speak. (Link.)

This Week in Luxembourg

- On Tuesday, the Grand Chamber gave guidance on the "principle of equivalence", i.e. the principle that no unjust procedural differences may exist to the the detriment of those who make use of the Community Law. The question is the difference between getting a national law annulled via the national constitutional court and getting it annulled through a prejudicial question. (ECJ: "There shouldn't be any.") And all of this in the context of a Frankovich/Factortame damages action. Transportes Urbanos y Servicios Generales v Administración del Estado. (Cf. AG Maduro andAdjudicatingEurope)

- Also on Tuesday, the Grand Chamber ruled that a refusal by the Commission to follow the recommendations by the Ombudsman regarding access to documents (cf. art. 8(3) of Regulation 1049/2001) is a decision within the meaning of art. 230 EC (old), now art. 263 TFEU. This means that the citizen does not forfeit his right to go to court by going to the Ombudsman first. (Cf. the 2 month time limit of art. 263 TFEU.) AG Mengozzi had proposed that the CFI's judgement should be upheld. Internationaler Hilfsfonds v. Commission.

- After the gambling judgement concerning Portugal in September (Liga Portuguesa, follwing an opinion by Bot) and AG Bot's December opinion in the Dutch Betfair and Ladbrokes case, he now has an opinion in a German gambling case. Compared to the earlier cases, this opinion seems to be more critical of the government, while of course leaving a lot of fact finding still to be done by the national court. The interesting thing is that the German regime was transitional in nature, given that it had already been judged as violating the Basic Law and the ECJ's Gambelli precedent. Winner Wetten (DE, FR)

- Replying to a prejudicial question from Spain, AG Mazák argues that the maximum amount of liability set by art. 22(2) of the 1999 Montreal Convention for lost luggage includes both material and non-material damage, i.e. it sets a limit for the total amount of damages that may be awarded. Axel Walz v Clickair (German, French, Dutch)

- In the ongoing Lego/IP litigation, AG Mengozzi delivered an opinion on Tuesday proposing that the Court uphold theCFI's Judgement. The question is whether a LEGO block can be registered as a 3D trade mark. OHIM held that it cannot, because "the shape has no purpose other than that of achieving a technical result". (cf. art. 7(1)(e)(ii) ofRegulation 40/94) That decision was upheld by the CFI, and now supported by AG Mengozzi. Lego v OHIM.

On Thursday, the only thing of note was a few more AG opinions:

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AG Kokott had a go at a Dutch Supreme Court prejudicial question regarding a clash between the Brussels-I Regulation (44/2001) and the rules on jurisdiction of the 1956 CMR Convention (cf. art 31), which just predates the communities (cf. art. 351 TFEU). This is a bit tricky since the ECJ is (legally) competent to give guidance on the former, but not the latter. TNT Express Nederland v. AXA Versicherung (NL, FR, DE)

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She also published an opinion in Commission v. Luxemburg. Substantively, this is an infringement proceeding regarding the Nitrates Directive, Directive 91/676. However, in this case the admissibility problem is much more interesting, given that the Commission already brought essentially the same action in 2001. The AG rejects the notion that the principle of ne bis in idem requires dismissal, as well as the suggestion that the Commission should have brought a 228 (old) action instead, and instead examines which parts of the case are still to be decided, given the res judicata of the earlier ruling.

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AG Mengozzi, finally, published an opinion on the consumer protection directive regarding distance contracts, Directive 97/7, concluding that the directive forbids "national legislation which (...) requires the cost of delivering the goods to be charged to the consumer after he exercises his right of withdrawal." Heinrich Heine

This Week in Luxembourg

- According to AdjudicatingEurope, the biggest case this week is Kücükdeveci. The result is that directives can have horizontal effect between private citizens. In this particular case, the problem was section 622 of the BGB, which violated Directive 2000/78, concerning equal treatment in the workplace, because it discriminated against individuals younger than 25. The ECJ now allowed ms. Kücükdeveci to claim rights deriving from the directive in her suit against her (former) employer, despite the BGB rule to the contrary.

- In Co-Frutta Soc. coop v. Commission, the General Court cleared up some procedural matters concerning access to documents under Regulation 1049/2001. For example, the Commission is still allowed to adopt a decision explicitly refusing access after an implied refusal has already become effective under art. 8(3) of the Regulation.

- Germany was condemned by the Third Chamber for its overly restrictive regulations with regard to the posting of Polish workers in Germany, under a Polish-German agreement from 1990. Commission v. Germany.

- On appeal from the CFI, the First Chamber overturned the CFI and OHIM and ruled that the Audi motto "Vorsprung durch Technik" can be registered as a trade mark. The OHIM Board of Appeal, supported by the CFI, had held that the slogan lacked distinctive character under art. 7(1)(b) of Regulation 40/94. Audi v. OHIM.

- In MG Probud Gdynia sp., there was a problem between the authorities in Poland and Germany concerning the seizure of certain assets located in Poland as part of bankruptcy proceedings in Germany. Unsurprisingly, the First Chamber emphasised the importance of mutual trust between the member states, and ruled that the German authorities should have their way, subject to the exceptions of art. 25(3) and 26 of Regulation 1346/2000, the insolvency regulation.

- The Second Chamber handed down yet another ruling concerning the rights of Turkish citizens and their children, again finding for the plaintiff. Cf. the Sahin case from September, which was also about Decision 1/80 of the Association Council. In the context of a third country immigration, cf. the pending case of Harrow, LBC v Ibrahim, where AG Mazák delivered his opinion in October, and the similar opinion by AG Kokott in Teixeira v Lambeth LBC from the same day. Bekleyen v Berlin.

This Week in Luxembourg

- Today, AG Mengozzi released an opinion in another terrorism case. This time, the question is quite simply whether "indirectly" in art. 2(2) of Regulation 881/2002 includes making (social security) funds available to the spouse of someone on the list. (Cf. House of Lords ruling here.) If so, the Treasury would be justified in imposing the stringent requirements that they are currently imposing on social security payments in those circumstances. The AG, however, proposes that a payment to the spouse is not an indirect payment to the listed person. M (FC) and others v. HM Treasury.

- The First Chamber ruled today that a German ban on using lottery tickets as a promotional device for the sale of goods to consumers was incompatible with Directive 2005/29. The directive is meant to fully harmonise the area of unfair b2c business practices, and using lottery tickets in this way is neither included in the Annex, which lists things the MS may in any event ban, nor is it covered by the definition of unfair practices of art. 5 of the Directive Plus Warenhandelsgesellschaft mbH.

- Apparently there is (still) such a thing as Directive 89/105 concerning the pricing of medicinal products, which, inter alia, allows for a price freeze. If an MS chooses to enact one, the Directive requires that they evaluate whether this is justified by "the macro-economic conditions". Today, the question was raised whether that includes the financial health of the pharmaceutical sector. The reply of the Third Chamber is that the article is too vague for there to be a court mandated Europe-wide uniform answer, and that the provision in any event does not have direct effect. AGIM v. Belgium.

- In the context of the Habitats Directive, an interesting issue of German Constitutional law came up, concerning municipalities' right under art. 28(2) GG (English) to "administrative autonomy". Here, the City of Papenburg sued Germany, asking that Germany be ordered to refuse its consent to the Commission's draft list of "Sites of Community Importance" because of the disproportionate economic effect one of the included sites would have on Papenburg. The ECJ, however, ruled that Germany may not refuse its consent on these grounds. Stadt Papenburg v. Germany.

This Week in Luxembourg

- Spector Photo Group and Van Raemdonck (Third Chamber) is the first cases dealing with, well, insider dealing underDirective 2003/6. (The most recent previous case on the subject, Georgakis, was still treated under Directive 89/592. As so often, the main question is what it means to “use” inside information. In this case, the court reads art. 2(1) of the Directive as a (rebuttable) presumption that the accused meant to abuse his information, meaning that an “innocent trader” should be allowed to rebut that presumption. The Court also spent a few paragraphs on the possible overlap between administrative and criminal sactions. (par. 74-77)

- In Commission v. Ireland, Ireland’s review procedures for decisions awarding public works contracts were found to be in violation of Community Law, specifically Directive 89/665 and Directive 92/13. Two other public works rulings were handed down today: Serrantoni and Consorzio stabile edili, dealing with groups of undertakings participating, andCoNISMa, regarding a group of universities and research institutes participating in a tender as a potential service provider.

- Yesterday, the Grand Chamber of the ECtHR ruled in Sejdic and Finci v. Bosnia, a complaint by individuals of Roma and Jewish descent, complaining about their ineligibility for the highest offices in the state of Bosnia Herzegovina. Bypassing the question of necessity, the Court found that the rule was in any event not proportionate. Cf. EJIL: Talk!

This Week in Luxembourg

- Procedurally, the big case of the week is M. v. EMEA (Third Chamber), the first ever exercise by the Court of its review power under art. 225 EC/256(2) TFEU. The Civil Service Tribunal had declared M.’s case manifestly inadmissible (Case F-23/07). On appeal to the CFI, the CST’s ruling was overturned in its entirety, and M. was awarded € 3000 in damages. (Case T-12/08 P) Now, on the proposal of the First AG, the case is before the Court, who rule that the CFI should not have ruled on the merits of the case itself, but should have sent the case back. Cf. Adjudicating Europe.

- An opinion was handed down today regarding two Dutch gambling cases, Betfair and Ladbrokes, challenging the Dutch law limiting access to the market under art. 49 EC. AG Bot proposes arguments favouring the Dutch side on the first four questions: such restriction is a permissible way to pursue a permissible goal, there needs to be no detailed evaluation of every implementing regulation if the overall regime is found to comply with art. 49, etc. The only question mark concerns the renewal of the one available license, which might need to be tendered competitively.

- In Rubino, an Italian university lecturer who had obtained his Habilitation at the University of Hamburg in Germany tried to get this qualification recognised in Italy, which has no such concept. The Eighth Chamber ruled that his Habilitation did not entitle him to skip any part of the Italian (comparative) selection process for university lecturers, but that the Italians should accord his qualification its “proper value”. Rubino v. Ministero dell’Università e della Ricerca.

- The First Chamber ruling in Martín Martín can be summed up easily enough: “Art. 4 of Directive 85/577 (...) to protect the consumer in respect of contracts negotiated away from business premises does not preclude a national court from declaring, of its own motion, that a contract falling within the scope of that directive is void on the ground that the consumer was not informed of his right of cancellation, even though the consumer at no stage pleaded that the contract was void before the competent national courts.”

- In a bit of tax fun, Hungary apparently levies a “vocational training levy” on companies depending on their number of employees. AG Sharpston deals with the case in the most straightforward manner she can think of, avoiding the tax angle as much as possible. Instead of applying the somewhat more drastic Arblade precedent, as the Commission had proposed, she applies Hartlauer Handelsgesellschaft: Anything that makes exercising the freedom of establishment less attractive is a violation of art. 43 EC. CIBA

- In an entirely different case, AG Sharpston considers the rights the heirs of Salvador Dalí may have as a result of thedroit de suite of Directive 2001/84 and the French (implementing) legislation. The problem isn’t the droit de suite per se, but rather the manner in which it is inherited under French law. In France, it is only enjoyed by the author’s heirs at law, not his legatees. The AG proposes that this rule is OK, being within the freedom of manoeuvre left to the MS by the Directive. Fundació Gala-Salvador Dalí. PS. Note the horizontal direct effect issue in par. 35-41.

- Finally on Thursday, the CFI ruled in two competition cases brought by Solvay. In its cartel case, Solvay proved that the period of infraction was 1987-1989, but not 1990 as the Commission had claimed, earning it a discount of 25% on its fine (par. 292-306). In its abuse of dominance case, Solvay earned a 5% discount because of an error in the way the Commission took into account Solvay’s recidivism (par. 507-512).

- A number of Member States got in trouble with the Commission because they exempted certain imports of military equipment from the Common Customs Tariff for years after this exemption was officially abolished. References to the "essential security interest" of art. 296 EC was to no avail, on Tuesday the Grand Chamber found for the Commission in all cases: Italy, Finland, Sweden, Germany, Italy again, Greece and Denmark. The opinion of AG Ruiz-Jarabo Colomer is here.

- Also on Tuesday, the Court of First Instance (Third Chamber) found against the Commission in a state aid case about Electricité de France (EDF). The problem was the manner in which EDF was reorganised in 1997. The Commission, looking at the situation through the lense of private enterprise, found that the exemption of certain taxes that would have otherwise been due as part of such a reorganisation constituted illegal state aid. The CFI, on the other hand, observed that the point was to create a private enterprise where there was none, and found against the Commission. EDF v Commission.

P.S. I just came across the UK Asylum and Immigration Tribunal ruling in the Geert Wilders case, overruling the initial decision refusing him entry. I’m not sure how long ago it was published, but it seems interesting.

This Week in Luxembourg

- In the Cross-border electric power line vs. Aarhus convention case, the Second Chamber, like the late AG Ruiz-Jarabo Colomer in June, did the common sense thing and ruled that the total length of the line has to be taken into account for the purposes of deciding whether it is long enough to merit an environmental impact assessment, not just the lenght of the line in the MS in question. Umweltanwalt von Kärnten v Kärntner Landesregierung.

- The Fourth Chamber ruling in Rodríguez Mayor v. Herencia yacente de Rafael de las Heras Dávila is about employment law and collective redundancies, which I don't think are particularly interesting. The only point is the Court's brief reply to the Spanish court's third question in par. 58-59. Since the dispute is outside the scope ratione materiae of Community Law, the Court will not apply the Charter of Fundamental Rights or something called the Community Charter of the Fundamental Social Rights of Workers.

- The Sixth Chamber ruled that a Greek law requiring merchant ships operating under its flag to have a Greek capitain and a Greek first mate was in violation of art. 39 EC/art. 45 TFEU. The Court rejected the argument that these officers fell under the "public service" exception. Greece had argued something about "la situation géographique de la Grèce et de son caractère insulaire", trying to distinguish Spanish, German, French and Italian precedents, but no such luck. Commission v. Greece (French).

- It turns out that Germany is not required to treat German and Polish law degrees the same for the purposes of access to the German legal profession. The fact that the degrees may be "comparable, from the point of view of both the level of training received and the time and effort invested to that end" (par. 46) does not mean Germany is not entitled to demand evidence of actual knowledge of German law. Pesla v Justizministerium Mecklenburg-Vorpommern.

- AG Sharpston proposed some guidance as to the meaning of the phrase "without recourse to the social assistance system" in art. 7(1)(c) of Directive 2003/86 on family reunification, as well as the difference that exists in Dutch law but not in the Directive between "family reunification" and "family formation". The AG's proposed answer seems to mostly come out on the side of the plaintiff. Chakroun v. Minister of Foreign Affairs.

This Week in Luxembourg

On Thursday, the Second Chamber upheld the appeals by Faraj Hassan and Chafiq Ayadi against the CFI's rulings in T-49/04 and T-253/02. Both plaintiffs are on the UN sactions list. The CFI, applying its Yusuf and Kadi precedents, had confirmed the Council's terrorism sanctions against the plaintiffs, and the Court now applies its own Kadi precedent to overturn. (Just for the record: I still don't think this is the correct result.) Hassan and Ayadi v. Council and Commission.

Also on Thursday, the Fourth Chamber found against Germany, ruling that it had failed to fulfil its obligations under the 2002 telecoms package (Directives 2002/19, 2002/21 and 2002/22) by unduly restricting the regulator's freedom to find what is or is not a "new market". Commission v Germany. On the same day, the Sixth Chamber found that Belgium failed to adequately transpose Directive 2003/55, i.e. that it had failed to sufficiently liberalise its gas market.Commission v Belgium.

On Wednesday, the Grand Chamber ruled in Aventis Pasteur, a case on liability for defective products, specifically vaccines. The ruling identifies the circumstances in which a defendant may be substituted for another even though the limitation period of the Directive has expired, for example if it was difficult or impossible for the plaintiff to discover against whom the suit should have been brought, or if the different possible defendants belong to the same group. Cf. opinion by AG Trstenjak.

AG Mengozzi suggested that the Commission's art. 258 TFEU/226 EC suit against Portugal should be granted. The problem was Portugal's golden shares in Portugal Telecom, which according to the Commission are in violation of art. 56 EC/63 TFEU. The AG forcefully (cf. par. 56) argued for his position, citing Commission v. Netherlands and distinguishing Commission v. Belgium, while Portugal's citing of such creative sources as art. 295 EC (art. 345 TFEU) and Keck were to no avail. Commission v Portugal.

On Monday the Grand Chamber ruled, using the expedited procedure, in a Bulgarian immigration case. (Expedited = question asked on 19/8, received on 7/9, 2nd chamber decision on expedited procedure on 22/9, hearing on 27/10, ruling on 30/11.) The judgement gives guidance on the interpretation of art. 15(4), (5) and (6) of Directive 2008/115, regarding detention for the purpose of removal. On the whole, it looks like the plaintiff will be released, since it appears to be unlikely that Russia will take him back, or that they should be allowed to. (Par. 23) Kadzoev (Huchbarov)

In France and France Telecom v Commission, the CFI spent some time talking about the work of the Commission's jurists-linguists (par. 102-130) If the Commission agrees on the general terms of a decision, but delegates the power to fix the final text, once the jurists-linguists are finished, to the Competition Commissioner and the President, how much may the jurists-linguists change before the decision no longer counts as a decision of the Commission? Incidentally, this plea, like all eight others, was rejected. France still has to recover the taxes it exempted France Telecom from.

Last week's CFI ruling in Germany v Commission contains a discussion of estoppel/legitimate expectations/"the maximnon venire contra factum proprium", including an attempt by Germany to get the CFI to say that the Commission was estopped from claiming it had the power to carry out checks because it recently published two draft regulations asking the Parliament and the Council to give it this power. The CFI argues that the wording of art. 9(2) of Commission Regulation 70/2001 is "clear and unambiguous", so Germany loses.

The (new) UK Supreme Court ruled that British courts had jurisdiction - under Brussels II revised - over the custody case of a British boy habitually resident in Pakistan given that his parents were habitually resident in the UK, they were all British citizens, and both parties had accepted jurisdiction.

On a somewhat lighter note, it apparently took an actual General Court ruling to establish that the words Volvo and Solvo are similar. (The OHIM Board of Appeal had rejected that submission.) Volvo v. OHIM.

Also, the official english translation of the ruling by the Czech Constitutional Court about the Lisbon Treaty is now available: http://www.usoud.cz/file/2506.

This Week in Luxembourg

In a fascinating case about the difference between "delay" and "cancellation" for the purposes of Regulation 261/2004on compensation for aircraft passengers, the Fourth Chamber has ruled that an extremely long delay is still a delay, no matter how long it lasts, but that for some purposes delayed flights may be treated as cancelled, for example if the delay is more than three hours and is not due to "extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken". How illuminating... Sturgeon v Condor.

In an ruling interpreting Directive 93/42 concerning medical devices, the Second Chamber has held that the Swedish government could not rely on environmental or health concerns to ban the export to third countries of CE conform amalgam for dental use, since these concerns are fully adressed by the framework set up by the directive.Kemikalieinspektionen v Nordiska Dental.

Referring to art. 34 of Directive 2002/22, AG Kokott opined that it is possible (i.e. not contrary to Community law) to make an attempt at out-of-court settlement mandatory before parties are given access to the courts. The case concerned such a requirement enacted by the Italian parliament for the telecommunications industy. Alassini and others. She also argued that the Dutch system of allowing groups of corporations to form a single entity for tax purposes is not contrary to Community law either, even though this possiblity only exists for Dutch subsidiaries. X Holding BV.

Finland was found to be in violation of art. 307 EC for being insufficiently inclined to remove the incompatibilities of some of its pre-1995 bilateral investment treaties with Community Law. Commission v Finland.

It is not possible to register CANNABIS as a trademark, because it is too descriptive. Torresan v. OHIM.

On Wednesday, the CFI (6th chamber) ruled in an Austrian State Aid case, where the plaintiffs object to the Commission's finding that no violation occurred. Most of the ruling concerns the question of admissibility, i.e. whether the plaintiffs were individually concerned. The result is that their substantive concerns were declared inadmissible, but that the plaintiffs' claim is in to the extent that rests on their procedural rights under art. 88(2) EC. From there, the CFI has little difficulty concluding that "serious difficulties" did in fact exist, meaning that the Commission should have investigated further.

For some reason, it took a Grand Chamber to decide that creating a tax on aircraft stopovers that exempts local companies is both a violation of free movement law and an illegal state aid. Presidente del Consiglio dei Ministri v. Regione Sardegna.

In Helmut Müller, AG Mengozzi explores the limits of the concept of "public works". (cf. Directive 2004/18) To what extent does this concept include the case of a sale of real estate combined with certain rules (eg. zoning laws) about how this land is to be used? The AG proposes that "public works" requires a degree of connection between the public entity and the work that is to be done, such as a benefit for the public. More interestingly, he also considers the consequences, in this area of the law, of transfer of ownership and of legal shenanigans. (Dutch, German, French,Italian.)

This Week in Luxembourg

- In Commission v Spain, the Third Chamber avoids the question of a possible violation of art. 234 EC by the Spanish Supreme Court. That does, however, leave the conclusion that the Supreme Court's case law is now found to have been in violation of Community Law, which is apparently a first. (Cf. Commission v Italy, case C-129/00.) French, Spanish.

- In a case where it looks distinctly as if TeliaSonera is trying to keep a competitor out of the Finnish market, the question arises whether the Access Directive 2002/19 can offer a remedy in the form of an obligation to negotiate in good faith about an interconnection agreement. The Second Chamber finds that it does, and that the Finnish legislation transposing the directive is too restrictive on the point. It also suggests that the national regulatory authorities should be able to enforce the obligation to negotiate in good faith more effectively. TeliaSonera Finland Oyj.

- In competition law, the Fourth Chamber rejected the appeal by SGL Carbon and Carbone-Lorraine against the CFI's ruling in case T-68/04, which, in turn, upheld the Commission's Decision 2004/420. In other words, they still have to pay € 23,6 million and € 43 million, respectively.

- The data protection directive 95/46 states that the MS should have "one or more" supervisory authorities, which should work in "complete independence". (art. 28(1)) The Commission is troubled by the German system, arguing that the German regulator is insufficiently independent from the executive branch. AG Mazák takes a middle road: He argues that some State supervision of the authority is acceptable, as long as the authority's ability to exercise its function independently is not jeopardised. Since the Commission failed to (dis)prove the latter, he suggests the case should be dismissed. Commission v Germany.

P.S. On October 30, the French Conseil d'État overruled its earlier case law and admitted that Directives can have direct effect in French (administrative) law. Cf. Coulisses de Bruxelles. The ruling itself is here.