This Week in Luxembourg

This week's Grand Chamber ruling concerns Council Decision 2008/633 "concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences". Is this a Schengen measure, meaning that the UK does not get to play, or a JHA measure? Applying fairly straightforward structural logic, the ECJ holds that the Decision was correctly taken under the Schengen acquis. UK v. Council.

The First Chamber agreed with AG Sharpston and the Commission that Lithuania should have revoked its pre-accession authorisation of a product called Grasalva under - inter alia - Directive 2001/83 on the Community Code relating to medicinal products for human use. Commission v. Lithuania

The First Chamber also had a case about art. 18(a) of Directive 86/653 on self-employed commercial agents. The question was whether they still had to pay a goodwill indemnity (cf. art. 17(2) of the Directive) if the contract is terminated with notice, followed by a default during that notice period that would have entitled the principal to terminate immediately under art. 18(a) of the Directive. The ECJ now ruled that the indemnity still has to be paid. Volvo Car Germany

In the competition cases of ThyssenKrupp (NL, FR) and ArcelorMittal (FR), AG Bot discusses some interesting nulla poena issues relating to the expiration of the ECSC Treaty in 2002. In the end he concludes that the CFI was right to let the Commission's Decisions stand. However, in both cases there are problems with the attribution of the infringement to one company or another within the group at different moments in time, and with the relevant limitations periods. (Cf. art. 25 and 26 of Regulation 1/2003.) For this reason, the AG suggests partial annullment.

In the General Court, there was some more fun with attributability/single economic entity, this time regarding a cartel in the Spanish raw tobacco market. In the end, the court concluded that the Commission got it wrong as to one of the applicants. While they had the opportunity to direct the business of the company they owned a large majority share in, there was no evidence that they actually did. Alliance One.

Also in the General Court, Germany and the Commission had a disagreement about the application of art. 32 of Regulation 1290/2005, which deals with "irregularities" in the Common Agricultural Policy. The fun of this provision is in section (5), which makes the MS liable for 50% of the sums wrongly paid if they haven't recovered them yet after four years. After some haggling over cutoff dates and a "unilateral Commission undertaking annexed to the minutes of a Coreper meeting" (!), the General Court (Second Chamber) finds for the Commission. Germany v. Commission.

P.S. The archive of these emails is here.