Thursday, March 22, 2012

This Week in Luxembourg

In Inter-Environnement Bruxelles et al. v. Région de Bruxelles-Capitale, the 4th Chamber decided that the environmental impact assessment directive, directive 2001/42, also applies to measures that are provided for in national legislation but that are not mandatory to adopt. Moreover, the directive applies both to the adoption of land use plans like the one at issue in the main proceedings and to their repeal.

The Romanian prosecutor tried to “grandfather” the Rasdaq market into the financial markets regulations despite the fact that it, itself, was not a regulated market, by relying on the fact that its operator had merged with the operator of a regulated securities exchange. The 2nd Chamber, however, says that that is a no go. Cf. art. 4(1)(14) of Directive 2004/39. It also held that it is possible to be a regulated market without being on the list of regulated markets that the MS have to prepare under art. 47 of that Directive. Prosecutor v. Rareş Doralin Nilaş et al.

AG Bot concluded that the eruption of the Eyjafjallajökull and the resulting closing of much of Europe’s air space constituted an extraordinary circumstance in the sense of art. 5(3) of Regulation 261/2004. While this means that Ryanair no longer has to pay the compensation of art. 7, they still have to take care of their passengers as required by art. 9. Just for fun, you should see which arguments Ryanair pulled out of its backside next (par. 48-71). But not even art. 16 and 17 of the Charter can save them. McDonagh v. Ryanair

AG Sharpston proposed that the Court should strike down a Spanish fee for the right to install facilities on municipal public property because it is in conflict with art. 13 of Directive 2002/20. The problem was that the fee wasn’t so much for the right to install facilities as the right to use them. Moreover, the fees were not linked to the extent to which a scarce public resource was used, but rather to the company’s revenue and market share. Vodafone España

Interesting, albeit admittedly not for everyone, is AG Mengozzi’s opinion in Geltl v. Daimler AG, a rare case about Directive 2003/6 and Directive 2003/124, the market abuse directives. The case concerns a lawsuit by investors in Daimler who argue that the company should have disclosed the fact that Mr. Jürgen Schrempp, the CEO, was thinking of stepping down, even though no formal decision had been made yet. The AG argues that the fact that the board was discussing what to do and how was sufficiently precise information that it should have been disclosed.

AG Mengozzi also has a case where the French prosecutor does not think the 2009 judgement in Wolzenburg is clear enough when it comes to the rule against extraditing your own citizens vs. the European Arrest Warrant vs. the ban on discrimination on the basis of nationality. In this case, the sought person is not French, but married to a French person. Lopes Da Silva Jorge

AG Mengozzi’s third opinion this week concerns the closure of a US military base in the UK. The case is about employers’ obligation to inform and consult the workers’ representatives about mass redundancies because the more interesting question of state immunity seems to have been forfeited at an earlier stage. Pity… United States of America v. Nolan

On renvoi, the General Court again annulled a Commission decision finding that certain tax exemptions for mineral oil in Ireland, France and Italy constituted unlawful state aid. On first attempt, the General Court found an infringement of the obligation to state reasons, which the CJEU overruled, and now they’re going with legal certainty because of the conflict between the Commission’s 2005 decision and the Council’s Decision 2001/224 which authorized these exemptions. Ireland v. Commission

In the area of asset freezes, the General Court has resumed it regularly scheduled programming, and annulled the sanctions against a company called Fulmen and its owner Fereydoun Mahmoudian because the Council failed to adduce any actual evidence that they had anything to do with helping Iran develop nuclear weapons. I’m not entirely sure, though, what is going on with the remedies (par. 107). Fulmen and Mahmoudian v. Council

I am intrigued by the cases of Marine Harvest Norway et al. v. Commission and Fiskeri og Havbruksnaeringens et al. v. Commission only because I was not even aware that it was possible to impose anti-dumping duties with in the EEA. But apparently such duties have been in place since 2006. Cf. the basic regulation, Regulation 384/96, as well as Regulation 85/2006, which imposed such duties on Norwegian farmed salmon. Both cases resulted in a partial win for the applicants, by the way.

In competition law, the General Court sided with the Commission against Slovak Telekom in an action for annulment of a Commission decision requiring Slovak Telekom to produce information. Slovak Telekom v. Commission

Finally, apparently the Pillar Wars continue. The Commission is suing because the Council and the Parliament enacted Directive 2011/82 on the cross-border exchange of information on road safety related traffic offences under art. 87(2) TFEU (JHA) instead of art. 91 TFEU (Common Transport Policy). Both work with the Ordinary Legislative Procedure, but the Commission seems to be worried about the principle of it, as well as about some countries’ opt-outs and opt-ins in the area of JHA. (cf. section 3.2.2 here) (HT: Ronny Patz.)

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