Thursday, November 25, 2010

This Week in Luxembourg

This week's Grand Chamber judgement concerns the rights of Union citizens with a right of permanent residence in another MS under art. 16 of Directive 2004/38. Specifically, Germany wants to send Mr. Tsakouridis back to Greece as soon as his sentence for organised drug smuggling is over, but the German court is uncertain whether that qualifies as an "imperative ground of national security" under art. 28(3). The ECJ, following AG Bot, says that it does. Note also the remarks on how to assess whether he qualifies for hightened protection in the first place. Land Baden-Württemberg v. Tsakouridis.

[UPDATE: AdjudicatingEurope has a post on this case, as does the website of the Dutch NRC newspaper, who emphasise the connection between this case and the recent French Roma uproar.]

The most politically sensitive case of the week is Case C-40/10, Commission v. Council (FR), where the 3rd Chamber (with Lenaerts as President and Von Danwitz as Rapporteur) essentially sided with the Commission in the ongoing dispute over the remuneration of the Eurocrats. The Court annulled all but art. 1 and 3 of Regulation 1296/2009, on the grounds that it violated art. 65 and Annex XI of the Staff Regulations (cf. p. 59-64 here), because it failed to correctly apply the cost of living adjustments prescribed. Let the screaming begin...

In his second case before the Court of Justice, Mr. Fuß the annoying fire fighter from Halle again wins his case. Having already established that the Working Time Directive applies to fire fighters as well, and that the city was not allowed to compulsorily transfer him to a desk job for insisting on his "rights" (Case C-243/09), he now mostly wins as to remedies. The gentleman's right to reparations may not be conditional on "a concept of fault going beyond a sufficiently serious breach of EU law", and it may not be conditional on his having made a prior application to the employer for less work. Fuß II.

AG Kokott has a nice case on dual citizenship. Here's the conclusion: "Where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38 in that State." In this case, the applicant had dual Irish/UK citizenship (of course), and was looking to secure a right of residence for her Jamaican husband. R. (ex parte McCarthy) v. Secretary of State for the Home Department

AG Trstenjak considered the scope of the ban on advertising for prescription-only medicinal products (cf. art. 88(1)(a) of Directive 2001/83). The question is whether a website that gives information about a medicinal product qualifies as advertising under this provision. The AG says that it does not, as long as the website gives only the information that was also provided to the MS regulator, and as long as the information is only accessible to someone who deliberately looks for it. (Instead of having it pop-up unsolicited.) MSD Sharp & Dohme v. Merckle (NL, DE, FR)

Finally, AG Jääskinen has an opinion on procedure & state aid in the appeal against case T-388/02. The question is to what extent other interested parties have a right to protect their procedural rights when the Commission declines to open the formal investigation procedure. The AG suggests that the existing case law on admissibility should be affirmed (cf. Cook and Matra), but that the General Court got its application wrong. The applicant should have been more explicit in explaining why there were "serious difficulties" Commission v. Kronoply and Kronotex (NL, DE, FR)

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

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