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).

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