Wednesday, December 23, 2009

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!

Thursday, December 17, 2009

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.

Thursday, December 10, 2009

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.

Thursday, December 03, 2009

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:

Friday, November 20, 2009

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.)

Friday, November 13, 2009

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.

Thursday, October 29, 2009

This Week in Luxembourg

After AG Maduro's opinion in April, the Grand Chamber has now ruled in the Austrian/Czech nuclear power plant nuisance case. The judges agree with the AG that the Austrian court has to treat "installations" authorised by the Austrian government the same as those authorised by other MS, for the purposes of this nuisance suit, something they explain with explicit reference to the Eurotom Treaty. (Cf. par. 81-86. The referring court and AG Maduro only mentioned the EC Treaty.) CEZ

AG Bot delivered his opinion in the Brita case. The question was what to do with goods that were certified by the Israeli customs authorities as being of Israeli origin, but which in fact originated in the settlements on the West Bank. The AG proposes that the German authorities are not bound by the Israeli statement, and that these goods do not count under the EC-Israeli agreement, which is part of the Euro-Mediterranean Agreement. (Cf. also the EC-PLO agreement.)

AG Mengozzi delivered his opinion in the appeal against Case T-429/04, which dismissed a damages claim, based on the theory that the Community incurred non-contractual liability by enacting Regulation 2320/97, imposing certain anti-dumping duties. The CFI declined jurisdiction on some claims, and rejected others based on the absence of sufficient causation. The AG proposes that the appeal should be rejected, but he does have some critical remarks. This could be an interesting case, both regarding the relationship between EU and national courts, and regarding the principles of EU tort law.

The Fourth Chamber declared that Sweden failed to fulfil its obligations under Directive 2003/54, by failing to vertically separate its electricity market (art. 15(2)), and by failing to give the regulatory authorities the appropriate authority to regulate the market (art. 23(2)). Commission v Sweden. The Sixth Chamber ruled similarly with regards to Belgium, also regarding the electricity markt. Commission v Belgium (French).

The case of Pontin v T-Comalux concerns the concept of effective judicial protection, in this case in the area of employment law. The answer by the Third Chamber is a nice example of the ECJ having difficulty leaving enough room for the national court: "A fifteen-day limitation period (...) does not appear to meet that condition, but that is a matter for the referring court to decide." (AG Trstenjak had shown somewhat more restraint in that respect, although one could also argue that her proposed answer is simply less helpful, providing less guidance.)

Consistent with the recommendation of AG Ruiz-Jarabo Colomer, the Third Chamber decided to reject the challenge by the Commission against a Finnish rule that levied no VAT on legal services provided by public offices. Even though there was arguably some element of consideration, this was not enough to make these legal services economic in nature, given that the fees also depended on the recipient's ability to pay. Commission v Finland.

In Gielen, AG Ruiz-Jarabo Colomer described the Dutch income tax rule that discriminates to some extent based on the country of residence of self-employed persons as Orwellian, and recommended that the Court declare it inconsistent with Community Law. Gielen (Dutch, French, German)

Here's a block of cases on public works contracts:


The Fourth Chamber chose substance over law in Commission v Germany, disentangling the legal relations concerning the Messe in Cologne to decide whether a tender procedure should have been organised. The relevant question was whether the City of Cologne or GKM was the counterparty to the contract for the purposes of Directive 93/37.


In a different public works case, AG Kokott proposed some guidance as to the limitation periods and the effective review standard of art. 1(1) of Directive 89/665.


He did the same in Commission v Ireland, a case dealing with mostly the same issues.


In a fourth case, AG Sharpston considered whether a law that banned individual members of a consortium from suing over the tender in all circumstances, i.e. not just over the outcome, was consistent with Community Law. (It probably isn't.) Club Hotel Loutraki and others (German, French)


On Tuesday, AG Bot considered a public procurement case regarding public toilets in Frankfurt, Germany. The case concerns important questions of transparency as a general duty in all areas of Community law (cf.Audiolux), and the extent to which Community Law has something to say about remedies in case of error. In a nutshell, the AG argues a "Yes" on the former and a "No" on the latter. Wall AG (Dutch, French, German)

Friday, October 23, 2009

This Week in Luxembourg

On Thursday, AG Kokott released her opinion in ERG, the first case to consider the polluter pays principle of Directive 2004/35. Starting, as one does, with Archimedes (the case concerns an area not far from Syracuse on Sicily), she discusses its temporal applicability. Otherwise, the main focus of the opinion is on what the directive allows, rather than what it requires. (Cf. its art. 16) The AG's conclusion is that the Italian legislation is in conformity with the directive. (German, French, Dutch. N.B. I read it in German, before I discovered there was also a Dutch translation...)

Also on Thursday, the Third Chamber ruled in a Spanish Schengen/immigration case. Two Bolivian citizens had been expelled and "banished" by the Spanish government on the grounds that they - put simply - had overstayed their visas. Cf. art. 11(3) of Regulation 562/2006. It appears (par. 52) that only the Spanish version of that section contains an obligation to expel. The conclusion is, as AG Kokott had proposed, that there is neither a requirement nor an obligation to expel. Zurita García.

On Tuesday, four AGs released four opinions in 3½ cases:


AG Ruiz-Jarabo Colomer wrote about the (Italian) gas market and Directive 2003/55. The result is a thoughtful analysis of what the state is allowed to do when the market is supposed to be fully competitive, but isn't. Working from art. 86(2) EC (art. 106(2) TFEU), the AG considers the proportionality of the measures adopted, and their consistency with the "interests of the Community", concluding that the Italian scheme is OK, given certain general (and obvious) condidtions. Federutility.


AG Mazák opined on an English case regarding the residence and social welfare rights of a third-country national married to but separated from a Dane (no longer resident in the UK), living in England with their Danish kids. (Cf. Directive 2004/38.) Citing the 2002 Baumbast precedent and art. 12 of Regulation 16912/68 (now repealed), the AG argues that the children, who are going to school in England, are entitled to continue their schooling there, and that their mother is entitled to stay in England to take care of them. Harrow LBC v Ibrahim.


AG Kokott considered a similar English case, only now the petitioner is an EU citizen, and formerly a worker.Teixeira v Lambeth LBC.


AG Mengozzi wrote about Directive 93/37 on public works contracts - since replaced by Directive 2004/18 - as applied to a Spanish motorway. Commission c. Espagne.

Friday, October 16, 2009

This Week in Luxembourg

In an important company law case, the Fourth Chamber reaches the modest conclusion. (As did AG Trstenjak.) There is no "general principle" in Community law that states that minority shareholders may not be discriminated against. (In this case, the minority shareholder wanted to be bought out at the same terms as one of the major shareholders had been.) This case was a little tricky, because it appeared as if the plaintiffs were not only arguing their case based on the relevant Directives, but also on a type of EC common law. To the extent that such a thing exists, it doesn't apply here. Audiolux.

The Third chamber signed off an the Italian approach to public-private partnerships, where - put simply - the contract is awarded semi-private company responsible for carrying it out without any kind of tender, but the company that is to be the private partner in the enterprise is selected by fully competitive tender. The longer (and better) explanation is given inthe opinion of AG Colomer. While this is clearly the common sense result, note that the Court only said that this system was OK, while the AG also gave some general rules. Acoset.

In Djurgården-Lilla Värtans Miljöskyddsförening, the Second Chamber gave one of the first interpretations of the third (access to justice) pillar of the Aarhus convention, ruling for the plaintiff (and potential other members of the public) on all three questions. Djurgården-Lilla Värtans Miljöskyddsförening (AG Sharpston came to the same conclusion.)

In the eagerly anticipated Bavarian Lager Case, AG Sharpston proposed ruling against the Commission and rejecting the appeal. (Ruling below here.) Quoting Asimov, she explains that the case concerns a clash between the unstoppable force of the right to privacy and the immovable object of access to documents. This seems to be the right result, given that the information sought is the names (and only the names) of the participants of a meeting that resulted in Bavarian's free movement complaint being shelved. The AG gets there by distinguishing between "data" and "documents". Bavarian Lager.

On Wednesday, the CFI rejected the action for annulment by the Bank Melli Iran in another terrorism case. The interesting part is the discussion in par. 35-38 of the intensity of judicial review in these cases, depending on whether the action is aimed at the "general" part of the regulation, or at the annex that contains the list of people covered. When, like in this case, the action is against the former, the CFI adopts a large measure of restraint, focusing mostly on issues of procedure, détournement de pouvoir, and manifest error of fact. Bank Melli Iran v Council (French).

Thursday, October 01, 2009

This Week in Luxembourg

On Thursday, the near-bankrupt Housing Association St. Servatius got a partial win in the ECJ. The requirement that they should ask permission of the minister before investing abroad is in violation of the Treaties, unless there are clear, objective guidelines that govern when that permission shall be given. Interestingly, the ECJ declined to answer the questions on art. 86, arguing that there was no issue of state aid and/or services of general economic interest here. The Dutch Council of State now has to decide whether the Dutch law complies with the requirements stated.Woningstichting Sint Servatius.

It should come as no surprise that a new access to documents problem hails from Sweden: To what extent should the press be able to access the pleadings in a (pending) court case? The CFI sided with the Commission, at least until the moment of the oral argument. (Case T-36/04.) AG Maduro now recommends an even higher degree of transparency. Ideally, he suggests that the Court should control access to documents in pending cases itself, in the alternative (Quoting the ECHR's Rule 33) he suggest a much narrower interpretation of the exceptions than the one used by the CFI. Sweden v API and Comm.

Among AG Maduro's final opinions, his argument that Regulation 2007/717, setting price caps for roaming, could validly be enacted under art. 95 EC seems almost insignificant. (Of course, that would not have been the case if his recommendation had been the opposite.) Subsidiarity (par. 27-36) and proportionality (par. 37-44) are discussed, but do not seem to have any serious teeth. Vodafone. (Note the short essay in par. 1 on the relationship between the courts and the political branches as gatekeepers of the system of conferred powers.)

AG Maduro also discussed a case about the wonderful world of joint and shared competences and international fora ("mixed agreements"): To what extent could Sweden act independently in the Review Committee set up by the Convention on Persisten Organic Pollutants? The AG argues that Sweden jumped the gun by not giving the Council the opportunity to act, and that Sweden violated Community Law in doing so. Commission v Sweden.

In another international relations case, the Council decided on the Community's position in an international forum without stating a legal basis. (TiL 24/4) Compared to AG Kokott, the ECJ does not devote a lot of attention to the unusual fact that the Community is not (yet) a party to the Conference in question, something that could have consequences both for admissibility and for the evaluation of the merits. Commission v Council.

Austria is allowed to discriminate against foreign disabled persons by only giving a (motorway) toll-exemption to '"disabled persons resident or ordinarily resident" in Austria, in order to "promote their mobility and social integration".Gottwald.

On Wednesday, in Rottman v Bayern (German), AG Maduro considers issues of citizenship and statelessness. The AG concludes that the prejudicial question is admissible (i.e. not strictly internal). Citing the 1997 Convention on Nationality, he argues that in this case the normal rule applies: states may give or deny their citizenship to whomever they please. Generally, though, he does not exclude the possibility of EC law affecting issues of citizenship. (par. 26-30.) Note also the short essay in par. 23 on the relationship between national and European citizenship, European legitimacy, etc.. (Cf. Adjudicating Europe)

In 2007, the CFI annulled the asset freeze imposed against Jose Maria Sison, the Filipino Communist leader. (Case T-47/03.) Despite that, the Council maintained him on the list, most recently in Decision 2009/62, under no. 26. Now the CFI annulled that decision again, based on a violation of the underlying regulation, Regulation 2580/2001. Rulings made in the Netherlands for the purposes of Sison's immigration litigation are not enough for art. 2(3) of the Regulation. Sison v Council.

Also on Wednesday, Hoechst got its competition fine reduced from € 74,03 million to € 66,627 million. The CFI rejected all of Hoechst's arguments, except the last one. The Commission failed to give it a 10% reduction under section D 2 of the old leniency notice on the grounds that it did not substantially dispute the facts. (par. 95-102 and196-198.) Hoechst v Commission.

In Blanco Pérez, AG Maduro quotes Shakespeare in analysing the Spanish pharmacy market. His conclusion is that the Spanish system violates Community Law. (Well, he leaves the minimum distance requirement for the national court.) Cf. Case C-171/07 and Case C-531/06 from last May, when the ECJ found against the Commission in a similar case against Italy. Maduro distinguishes them by arguing those cases were about making sure that pharmacists are qualified, not about regulating the number and location of pharmacies.

In Commission v Germany, AG Mazák considered the interplay between a 1990 agreement between Germany and Poland and art. 49 EC, now that both countries are Member States of the European Union. (Cf. art. 307 EC)

P.S. This analysis of the legal specifics of the Irish "guarantees" on the EJIL blog comes highly recommended. Also, the EU Law blog has an article on last week's emissions trading cases.