Thursday, October 07, 2010

This Week in Luxembourg

The Grand Chamber declined to follow AG Cruz Villalón's revolutionary proposal to overturn the Rheinmühlen/Cartesio doctrine. When a MS court is faced with a case that has been referred back by a higher court, EU law trumps that higher court's instructions. Personally, I think this is unfortunate, but I don't get a vote. Elchinov v. Natsionalna zdravnoosiguritelna kasa. (Cf. below.)

In Commission v. France, the Grand Chamber pushed back (a little) the law on free movement of medical services. The French system of prior authorisation is permitted under Community Law. The Bulgarian scheme at issue in Elchinov, on the other hand, went too far and was found to violate art. 49 EC/56 TFEU and art. 22 and 36 of Regulation 1408/71. Particularly the latter case gives some useful guidance on the state of the law in this area, for those who might be interested.

On Wednesday, the 4th Chamber handed down two judgement about universal service obligations and electronic communications in Belgium. It held that it is (theoretically) permissible for the legislature to designate itself the National Regulatory Agency under art. 2(g) of Directive 2002/21, as long as the requirements of art. 3 are met. It also held that art. 13 of Directive 2002/22 requires a specific examination of the circumstances of the undertaking that is allegedly subject to an "unfair burden". The net result is that Belgacom, the old incumbent, loses. Commission v. Belgium and Base. (Cf. De Standaard.)

On Thursday, Portugal was found (by the 3rd chamber) to have failed to adequately transpose that same Directive 2002/22. Apparently, they've been a bit cavalier about their universal service obligations, which still lie with the old incumbent, but without the kind of legal framework and official findings required by the USO Directive. (cf. art. 3(2) and 8(2)) Commission v. Portugal (FR)

In Lassal, the 3rd Chamber illuminated the retroactive effect of Directive 2004/38, the general free movement of persons directive. The answer is that, yes, a continuous period of 5 years residence (cf. art. 16(1)) still counts if it was completed before the date of transposition of the directive. Once that 5 year residence period is completed, only an absence of 2 consecutive years or more can make a person lose their right of residence. (Cf. art. 16(4)).

AG Sharpston was surprisingly forgiving about Spain's (and Catalunya's) "anti-Wall Mart" law. They have a licensing scheme in place for "large retail establishments". Instead of striking it down in one fell swoop as a violation of the freedom of establishment (albeit based on indirect discrimination), she goes over it one aspect at a time to see if it is justified. As a result, she concludes that some parts are OK, while others are not. Commission v. Spain.

P.S. The archive of these emails is here.

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