Thursday, February 28, 2013

This Week in Luxembourg

In Åklagaren v. Åkerberg Fransson, the Court (Judge Safjan) applied the Charter to a case that was within the scope of EU law but not a necessarily an implementation of EU law in the sense of art. 51(1) Charter. Also fun, the Court discusses the relationship between EU fundamental rights law, ECHR law and national fundamental procedural and fundamental rights law (par. 43-49). Cf. EULaw Student Blog, European Law Blog, Eutopia Law Blog (1, 2), and Verfassungsblog (1, 2)

The execution of an EAW cannot be made conditional on the in absentia judgement in question being open to review, not even if the national court invokes the Charter. Cf. Framework Decision 2009/299. Notice also the national court’s question 3, which invoked art. 53 Charter in order to be able to use national constitutional law to evaluate a rule of EU law. Unsurprisingly, the Court (Judge Safjan) did not like that either. Melloni v. Ministerio Fiscal Cf. Eutopia Law Blog and prof. Joseph Weiler on EJIL: Talk!

Delay compensation for air passengers is not conditional on delayed departure, but only on delayed arrival at the passenger’s final destination. (Judge Malenovský.) Air France v. Folkerts Cf. European Law Blog, Eutopia Law Blog and Recent Developments in European Consumer Law Blog

A number of cases were handed down this week about the 1st Railway Package, all of them courtesy of Judge Borg Barthet and AG Jääskinen. A quick rundown:
  • In Commission v. Germany, the Court followed the AG and dismissed the action.
  • In Commission v. Austria, the Court followed the AG and dismissed the action.
  • In Commission v. Spain, the Court followed the AG and found that Spain had failed to correctly transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (Charges are ultimately set by the minister, there is no performance scheme and the minister has too much discretion in how to deal with capacity scarcities.)
  • In Commission v. Hungary, the Court followed the AG and found that Hungary had failed to transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (The financial equilibrium of the infrastructure manager is not ensured, the charges are not linked to direct costs, and there is no incentive scheme.)

In Kenny et al. v. Commissioner of An Garda Síochána et al., the Court (Judge Silva de Lapuerta) tackled a straight-up indirect gender discrimination case, providing some guidance – though perhaps not as much as the Irish court would have liked – on the burden of proof for the defendant if a pay difference is to be justified.

In Ettwein v. Finanzamt Konstanz for once the Swiss don’t get the short end of the stick. The EU-CH Agreement on the Free Movement of Persons requires equal treatment here, according to the Court (Judge Juhász).

In Arrango Jaramillo et al. v. EIB, the Court reviewed a judgement by the General Court (FR) on appeal from the Staff Tribunal (FR). Even though such a review procedure requires the ECJ to be quite deferential (“if it affects the unity or effectiveness of EU law”), it was not pleased and sent the case back to the General Court.

The Greek State Aid case of Ellinika Nafpigeia v. Commission (FR) took an unexpected turn for the interesting when the appellant – a shipbuilder – invoked art. 346 and 348 TFEU in order to get out of repaying the aid. The Court (Judge Silva de Lapuerta), however, relied heavily on the last clause of art. 346 (1)(b) TFEU to interpret that article even more narrowly than it was already going to do anyway. The General Court judgment is here, also in French.

The Court (Judge Arabadijev), explained to a Portuguese court that a system of compulsory training for chartered accountants does fall under art. 101 TFEU, meaning that, once it is shown that it is problematic from a competition law point of view, it will require an equivalently weighty justification. Ordem dos Técnicos Oficiais de Contas v. Autoridade da Concorrência

AG Kokott goes out on a limb in competition law by arguing that a company that relies in good faith on advice by outside counsel saying that its behaviour is lawful under competition law cannot be punished for infringement if the competition authorities disagree. I suppose she had the Verbotsirrtum of § 17 StGB (translation) in mind, but I doubt that the Court will go for it. Schenker and Co AG et al.

AG Mengozzi proposed that the Commission should win its cartel appeal in Commission v. Aalberts Industries et al.

AG Jääskinen, on the day of his railway victory, did some public procurement law: “Articles 47(2) and 48(3) of Directive 2004/18 (…) preclude national legislation (…) which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria concerning the economic and financial standing and/or technical and/or professional ability of an economic operator.” That seems quite obviously right. Swm Costruzioni 2 and D.I. Mannocchi Luigino v. Provincia di Fermo Cf. Eutopialaw

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