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.

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