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: