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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 13 June 2013

These days in Luxembourg - A Bird's Eye View of the EU Court of Justice's case law - weeks 23 and 24

by Martin Holterman (reprint from Martinned)



The British system of special advocates for national security immigration cases survived a challenge under the free movement directive this week. While the Grand Chamber (Judge Von Danwitz) set some limits, those are the same as the limits already set by the ECtHR and the UK Supreme Court: Only when it is strictly necessary, and in any event the “essence” of the case must be disclosed. ZZ v. Secretary of State for the Home Department
  
The big competition case last week was Bundeswettbewerbsbehörde v. Donau Chemie et al., where the Court (Judge Tizzano) held that access to a competition case file cannot be made subject to a right of veto of the parties. Even in cases of leniency submissions, the national court has to assess the balance of interests. Note that the new Commission proposal for a Directive on private damages suits in competition law forbids access to statements made in leniency submissions and settlement negotiations categorically. COM(2013) 404 Cf. Kartellblog

In January 2012, the General Court (Judge Forwood, of course) held that there was no longer any need to adjudicate the asset freeze case of Ayadi v. Commission, because Mr. Ayadi had since been removed from the asset freeze list. The Court (Judge Rosas) affirmed last month’s Grand Chamber judgement in Abdulbasit Abdulrahim v. Council (also by Judge Rosas) to hold that that was wrong. Ayadi v. Commission

In the Sardinian Hotel Aid case of HGA et al. v. Commission, the Court (Judge Arabadijev) signed off on the use by the Commission of a “corrective decision” in order to update a state aid procedure in mid-stream in light of new information provided by the Italian authorities (don’t ask). In so doing, the Court upheld the General Court’s decision in Regione autonoma della Sardegna et al. v. Commission (NL, DE, FR).

If one public authority hires another to clean its offices without any kind of (traditional) collaboration being established between them, that constitutes a public service contract under Directive 2004/18, meaning that it should have been tendered. Piepenbrock Dienstleistungen GmbH & Co. KG v. Kreis Düren

Ryanair lost its appeal in the Alitalia state aid case. The Commission’s decision finding that the loan provided by the state constituted unlawful state aid while the state’s other measures did not now stands. Ryanair v. Commission

As it turns out, just because you didn’t mention jurisdiction when opposing a the European order for payment, doesn’t mean you’ve forfeited the right to do so in the regular procedure under Regulation 44/2001. Goldbet Sportwetten v. Sperindeo

AG Mengozzi is proposing that, for a change, the Swiss should not end up holding the short end of the stick in a dispute about the tax-free amount for German inheritance tax. Welte v. Finanzamt Velbert

AG Kokott delivered an opinion on the rights of the citizen taxpayer when a Member State asks another Member State for information. She concluded that, as far as EU law is concerned, the citizen has no rights in this context. Jiří Sabou v. Finanční ředitelství pro hlavní město Prahu (NL, DE, FR)

The facts in the unfair commercial practices case of CHS Tour Services v. Team4 Travel make for a pretty interesting case, but tragically the ECJ’s portion of it is pretty straightforward. Defendant describes its arrangement as “exclusive” based on its contract with the hotel in question, plaintiff manages to book there anyway, and therefore challenges the use of “exclusive”. Result, according to AG Wahl: “Where a commercial practice falls within the scope of art. 5(4) of Directive 2005/29, it is of no relevance whether the criteria under art. 5(2)(a) and/or art. 5(2)(b) are also fulfilled.” So the plaintiff wins.

According to AG Mengozzi, the requirement that you have to provide your fingerprints for your passport does not violate art. 8 Charter. Schwarz v. Stadt Bochum (DE, FR)

AG Jääskinen made some pointed remarks about the brevity with which the French Cour de Cassation formulated its prejudicial question (par 19), before concluding that the questions posed are irrelevant for the dispute at bar and therefore inadmissible. The case concerns the locus delicti of a case of alleged music piracy under Regulation 44/2001. Pinckney v. KDG Mediatech AG (NL, DE, FR)

The General Court (Judge Martins Ribeiro) handed down an interesting access to documents judgment last week. In Stichting Corporate Europe Observatory v. Commission, it held that the fact that certain documents about the EU-India free trade negotiations had been provided to trade associations – i.e. potentially to large numbers of people – did not mean that the Commission had essentially already made those documents public.

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