Wednesday, March 07, 2012

This Week and Last Week in Luxembourg

Unquestionably the coolest case this week is AG Bot’s Opinion in Hungary v. Slovakia (!), about a refusal by Slovakia to allow the President of Hungary access to its territory. Hungary tries to argue it as a straightforward free movement of persons case, but the AG argues that the EU is not empowered by the Treaties to make rules about the access of a Head of State to the territory of another MS. Also interesting: “the Member States should not exercise their diplomatic competence in a manner that might lead to a lasting break in diplomatic relations between two Member States”. (par. 58)

AG Mazák agreed with the General Court that the Commission’s decision to conditionally approve the takeover of Vivendi’s European publishing activities by Lagardère was OK. The main fun of this case is that Lagardère sought to make sure that Vivendi got paid as quickly as possible by having a bank act as the purchaser pending approval by the Commission, based on an undertaking that said bank would be indemnified by Lagardère for any losses resulting from the arrangement. Éditions Odile Jacob v. Commission

Conservatives everywhere will find AG Bot’s opinion in P.I. v. Oberbürgemeisterin der Stadt Remscheid a decidedly mixed bag. On the one hand, the AG argues that a child molester cannot be expelled based on “imperative grounds of public security”, because he is not a threat to the public at large. On the other hand, the AG treats the 10 year limit for the highest level of protection as nothing more than a rebuttable presumption of integration, and argues that integration has not occurred in this case. Cf. art. 28(3) Directive 2004/38

AG Mengozzi argues that online contracts that provide the information required by art. 4 of Directive 97/7 via a hyperlink do not comply with the requirement of art. 5 of that Directive that the information should be provided to consumers in a “durable medium”. In fact, given that a further click was necessary to access the information in the first place, the AG argues that the consumer in question hasn’t received the information at all. I wonder how the internets are going to solve this problem… Content Services v. Bundesarbeitskammer

On renvoi, the General Court annulled a State Aid decision that it had initially upheld (original judgment). As far as I can see, the key error identified by the Court of Justice concerned the GC’s focus on the “causes or objectives of the aid”, rather than its effects. There was also a problem with the overall level of scrutiny. British Aggregates v. Commission

Finally, there was a partial loss for the Commission in the Industrial Bags cartel case, where UPM-Kymmene had its fine reduced by about 10% because the Commission failed to prove the cartel for the full time period claimed. The remaining amount is still the highest of the 13 companies involved, though. FLS Plast and FLSmidth got an even smaller “discount” for an even smaller period of time. For those keeping score, the total fine is now approximately € 280 million (instead of € 290 million).

Last week, there was at least a partial win for Germans with Czech driving licenses. The driver in question still lost, but only because he didn’t satisfy the residence requirements for a license, not because he’d evaded the German court’s decision to refuse him a license on the grounds that he “displayed aggressive tendencies”. Akyüz

For the purposes of the part-time work directives, Ireland was allowed to discriminate between judges and workers (i.e. to say that judges are not “employees”), but not between full-time judges and part-time judges. O’Brien v. Ministry of Justice

Also last week, the General Court backed the Netherlands against the Commission regarding some of its state aid for ING. The Commission had decided (link) that the aid in question was acceptable subject to three pages of commitments, but in front of the Court they failed to prove that it was aid at all, i.e. that ING couldn’t have gotten similar terms on the normal capital markets. Netherlands v. Commission

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