Thursday, July 21, 2011

This Week in Luxembourg

The First Chamber issued another big pro-transparency judgement this week. In the appeal in Sweden and MyTravel v. Commission, the Court upheld the appeal, dismissing the legal advice and protection of decision making process arguments relied upon by the Commission. Put simply: problems for future decision making have to be shown, and it's not legal advice unless there is a specific court case you're advising on. In March, AG Kokott had already reached the same conclusion. The case is party referred back to the General Court.

The Second Chamber refused an argument of abus de droit where a Turkish national lawfully resident in the UK started a business there in violation of his residence permit, and then claimed the right to say in the UK under art. 41 of the 1970 Additional Protocol. I'm not sure that I follow the argument, but OK. Oguz v. Home Secretary In another Turkish case, Ünal, AG Sharpston argues that the Dutch may not retroactively take away the applicant's residence permit absent a showing of fraud. (Meaning that his 1 year lawful employment is still lawful.)

Can you build wind-turbines (cf. Directive 2001/77 and Directive 2009/28) in an area that is protected under the Birds Directive or the Habitats Directive? The First Chamber concluded that Italy was entitled to forbid the construction of wind turbines not intended for self-consumption in such areas even without any kind of environmental impact study, as long as the do so in a manner that is proportionate and non-discriminatory. Azienda Agro-Zootecnica Franchini and Eolica di Altamura v. Regione Puglia

In a - for once - vertical discrimination directive case, the Second Chamber is letting the German Land Hessen have its somewhat flexible (and therefore potentially discriminatory) retirement law for civil servants. (As long as it is appropriate and necessary, etc.) Fuchs and Köhler v. Land Hessen

The Second Chamber also dismissed the appeal in the Italian preferential electricity tariffs state aid case of Alcoa Trasformazioni v. Commission, while the Sixth Chamber rejected the appeal in the DHL Leipzig/Halle state aid case of Freistaat Sachsen and Land Sachsen-Anhalt v. Commission (DE, FR).

In Telefónica de España v. Administración del Estado, the Seventh Chamber approved a Spanish administrative charge on telecom companies, as long as the total amount collected does not exceed the administrative costs incurred.

AG Cruz Villalón looked at the Italian market for day-ahead and intraday electricity, specifically the legally mandated power of the network company over the producers. He concludes that there are certain unusual aspects to this system, but that it passes muster as long as certain conditions are met. It will be interesting to see what the ECJ does with this case. ENEL v. Autorità per l'energia e per il gas (NL, DE, IT, FR)

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

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