Monday, January 09, 2012

Before Christmas in Luxembourg

Here are some cases that I didn’t get around to before the holidays. Regularly scheduled programming resumes next week.

The biggest case of the weeks before Christmas is undoubtedly the Grand Chamber’s Emissions Trading for Airlines judgment in Air Transport Association of America et al. v. Secretary of State for Energy and Climate Change. While there is too much to this case for me to mention it all here, I have to say that I’m not convinced by the Court’s insistence that charging airlines for all emissions produced, from the moment it starts taxiing until the moment it reaches the gate at the other end, does not infringe the sovereignty of third countries (cf. par. 127-130).

In asylum law, The Grand Chamber followed the ECtHR’s ruling in M.S.S. v. Belgium (cf. Strasbourg Observers), as well as AG Trstenjak, and held that “European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.” N.S. v. Home Secretary and M.E. et al. v. Refugee Applications Commissioner et al.

The Grand Chamber rejected France’s appeal against the General Court’s ruling in PMOI v. Council. Essentially the French took some of Kadi’s rights of defence language head on, and lost. France v. PMOI In sanctions news, the Third Chamber takes a flexible approach to interpreting Regulation 423/2007 (sanctions against Iran). Clearly attempts at finding loopholes are not being tolerated. Afrasiabi et al.

The Grand Chamber also convicted Austria of breaching art. 28 and 29 EC “by prohibiting lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley (Austria)”. It is always fascinating to see how the law can force parties to argue from a completely unrealistic framework. After all, this is not really a free movement of goods issue, this is a transportation issue. (The Netherlands and Italy appeared as intervenors.) And yet, MEE it is. Commission v. Austria

In Ziolkowski et al. v. Berlin, the Grand Chamber considered how people acquire a permanent right of residence if their home country only joins the EU while they’re already abroad. The conclusion is that their residence abroad not only has to be legal under the law of the host MS, but also has to meet the conditions of art. 7(1) of Directive 2004/38. However, residence in an EU MS that meets those requirements counts towards the required minimum period even if it occurred before accession. (So a Czech who has lived in Germany since 2000 acquires the right of permanent residence in 2005.)

Following AG Mengozzi, the Grand Chamber held that Directive 85/374 does not prevent Member States from making make hospitals and doctors liable for using a defective product in addition to the liability of the producer. The French law in question created no-fault liability for the users of the medical product in addition to the liability for the producer of the product that is required by the directive. Centre hospitalier universitaire de Besançon v. Dutrueux et al.

In energy law, the Second Chamber endorsed an Italian Universal Service Obligation for energy producers, notwithstanding art. 11 of Directive 2003/54. ENEL Produzione v. Autorità per l’energia elettrica e il gas

After September’s Gueye and Salméron Sanchéz (cf. also here for a detailed analysis), the Court now again has a case on the protection of vulnerable victims under Framework Decision 2001/220. And again, the answer is not quite what the victims in question will have hoped. Prosecutor v. X

In Cicala v. Sicily, the Italian court asked two questions about the obligation to state reasons under the Charter of Fundamental Rights. While it might have been interesting to hear the answers, the case in question did not otherwise touch on EU law, so the Third Chamber threw it out for lack of jurisdiction.

In 2004, the ECJ rejected sui generis Intellectual Property protection under art. 7(1) of Directive 96/9 for a database of football fixtures. Cf. Fixtures Marketing v. Oy Veikkaus. Now, a new plaintiff is trying for straight up copyright protection under art. 3 of that Directive. AG Mengozzi, however, does not seem enthusiastic. He argues that this is only possible if the database is “an original intellectual creation”, and the work of putting together the database does not count. Moreover, he argues that MS are not allowed to create additional protection. Football Dataco et al. v. Yahoo! UK et al.

In the Grand Chamber case of Kamberaj (NL, DE, FR, IT), AG Bot proposes an answer that passes most of the problem back to the Italian judge. The question is whether an Albanian long-term resident of Italy can have his rental assistance taken away in a manner that violates the equal treatment he is in principle entitled to under Directive 2003/109. The AG suggests that the national judge should sort out whether this qualifies as social security, etc. under art. 11(1)(d) of the Directive, and, if so, whether it is a core benefit under art. 11(4). He does, however, propose some guidance for the latter.

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