Saturday, May 28, 2011

This Week in Luxembourg

The appeal in the state aid case of Kronoply and Kronoplex is a bit messy. The applicants at first instance were found by the General Court to have standing as non-addressee interested parties, but that court denied their application on the merits: The Commission was right not to raise objections to a case of state aid. Even though the Commission won, it appealed the admissibility finding. Without the original applicants participating in the appeal, the Grand Chamber nonetheless upheld the General Court’s judgement.

The Grand Chamber went where no other EU Institution had dared to go before: It imposed normal internal market rules on notaries. Commission v. Greece, Commission v. Germany, Commission v. Austria, Commission v. Portugal, Commission v. Luxembourg, Commission v. France, and Commission v. Belgium. When I did my stage in Brussels in 2006, the notaries were exempt from the services directive in all drafts, because apparently their powerful lobby made them untouchable.

The First Chamber held that art. 6(1)(1) of Decision 3/80 of the EU-Turkey Association Council (p. 184 here) has direct effect, meaning that the Netherlands have to continue to pay the full amount of disability payments to the plaintiffs-appellees. UWV v. Akdas et al.

The environmental lobby pretty much lost the case concerning the new Eemshaven and Rotterdam power plants in the Netherlands. The ECJ obviously confirmed the usual rule about directives whose transposition period is not yet over, such as Directive 2008/1, but refused to find direct effect for art. 4 of Directive 2001/81. The plaintiffs will have to make do with art. 6 of that Directive. Joined cases Stichting Natuur en Milieu et al. v. Groningen and Stichting Natuur en Milieu et al. v. Zuid-Holland (2x)

The Commission lost an infringement case against Spain, because it failed to prove that the offending public works contracts actually concerned “works” in the sense of the relevant directives. Commission v. Spain

AG Mengozzi is faced with what the US Supreme Court always conveniently calls “some appropriate measure of costs”: Which is more important in predatory pricing cases: marginal costs or average costs? The AG dodges the issue by focusing instead on another aspect of the case: Post Danmark may not cross-subsidise between ordinary mail business and its direct mail business, at least not as long as the former is subject to a universal service obligation, with all the concomitant benefits and obligations. Post Danmark v. Konkurrenceradet (NL, DE, FR)

AG Jääskinen proposed that the Court should sign off on the Belgian external scheme for dealing with complaints against suppliers of non-universal postal services. He argued that this scheme does not violate Directive 97/67, as the Belgian court had suggested. Express Line v. Belgisch Instituut voor postdiensten en telecommunicatie (NL,DE, FR)

AG Kokott considered the nullity of a contract concerning illegal state aid. She concluded that nullity is not the consequence of the illegality of the government guarantee in question, unless the recipient of the guarantee (i.e. the institution providing the loan) is itself the beneficiary of the illegal aid. Obviously, it will usually be the case that the beneficiary of the aid is the recipient of the money. Residex v. Rotterdam (NL, DE, FR)

Apparently, Germany refused to cooperate with a Court of Auditors investigation into “administrative cooperation in the field of value added tax”, and AG Trstenjak now argued that that was unlawful. Commission v. Germany

In Batchelor v. Commission, the General Court rejected the Commission’s invocation of the internal use (dialogue with the MS) and commercial secrets exceptions. The UK may not use its own threat that it will cause problems in case of disclosure as evidence of the fact that disclosure will undermine the decision-making process.

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

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