Thursday, May 12, 2011

This Week in Luxembourg

Römer is one of those cases that can cause ripples well beyond its actual subject matter. Technically, it is a case about pension rights and civil partnerships, but in practice the only thing anyone will take away from it is that it supports gay rights. (The judgement doesn’t even say the applicant is gay. All it does is reference “his companion”.) The result is that Hamburg is not allowed to discriminate between married couples and civil partnerships. (Cf. Directive 2000/78, the general equal treatment in employment directive.) Cf.

In the interesting case of Ving Sverige, the question is whether certain advertisements by budget airlines, travel operators, etc. qualify as an invitation to purchase in the sense of Directive 2005/29. The Court’s answer strongly suggests that they do, meaning that the companies in question might have a problem with such provisions as art. 7(4)(c) of the Directive, given that they are often somewhat optimistic about the price at which the product in question can actually be obtained.

In a culturally sensitive case, the Second Chamber ruled that Lithuania was entitled to insist that names be entered according to Lithuanian spelling, as opposed to the Polish spelling preferred by the (Polish) plaintiffs. AG Jääskinen (DE, FR) had argued earlier that the plaintiffs should lose under Directive 2000/43, but should prevail to some extent under art. 21 TFEU, but the Court disagrees. Runevič-Vardyn (With a v instead of a w, and with the diacritic on the c instead of the Polish-form cz.)

The Third Chamber ruled that art. 22(2) of the Brussels Convention Regulation 44/2001 does not apply to cases where the company-defendant raises disputes the validity of an act of one of its own organs as a reason why a contract cannot be enforced. When you argue ultra vires as a shield, you’re going to have to argue it in the court that has jurisdiction under the normal rules. Berliner Verkehrsbetriebe (BVG) v. JPMorgan Chase

The Polish telecoms regulator got away with a bit of translation difficulty in Polska Telefonia Cyfrowa v. Prezes Urzędu Komunikacji Elektronicznej. A National Regulatory Agency is entitled to refer to a Commission Guideline even when that Guideline has not been translated, notwithstanding art. 58 of the Act Concerning the Conditions of Accession.

The Aarhus Convention wins again. This time, the Bund für Umwelt und Naturschutz Deutschland obtained standing through Directive 2003/35 when German law denied them the right to demand an environmental impact study – cf. Directive 85/337 - for a new coal-powered energy plant. Bund für Umwelt und Naturschutz Deutschland v. Bezirksregierung Arnsberg

Luxembourg got shot down in their attempt to challenge the airport charges directive 2009/12. The directive creates special rules for airports that are either larger than 5 million passenger movements per year or the largest in their MS. Luxembourg felt, understandably, that this was unfair towards their national airport, which is much smaller than 5 million passenger movements. The Third Chamber did not think, though, that this injustice rose to such a level that it violated the principles of equal treatment or proportionality. Luxembourg v. Parliament and Council

In the Air Passengers’ Rights case of Eglitis and Ratnieks v. Latvijas Republikas Ekonomikas ministrija, there is a lot of reasonableness all around, but not a lot of actual guidance. The question concerns art. 5(3) of the Regulation, which states that no compensation has to be paid if the cancellation is due to “extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.”

AG Kokott waded into the grey area between the EU’s JHA legislation and the MS’ autonomy in areas of criminal law. In the joined cases of Gueye and Salmerón Sánchez (NL, DE, FR), she examined the position of the victim in domestic abuse cases. She argues that under art. 2 and 3 of Framework Decision 2001/220/JHA the victim has to be heard about any restraining order. However, this does not mean that it is unlawful for a restraining order to be an automatic consequence of conviction.

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