This Week in Luxembourg

This week’s Grand Chamber news:

The main holding in Realchemie is easy enough: “The concept of ‘civil and commercial matters’ in art. 1 of Regulation 44/2001 [includes] a decision of a court or tribunal [imposing] a fine in order to ensure compliance with a judgment given in a civil and commercial matter.”

Also, the Grand Chamber handed down the first of two cases about the border between legislative and administrative functions. In this case, the problem is the Walloon legislature venturing dangerously close to administrative actions by ratifying administrative decisions regarding certain infrastructure projects. What does that decision mean for the rights of affected persons under the Aarhus Convention and other environmental law? The Court follows AG Sharpston, more or less, and takes a substance over formality approach. Boxus et al. v. Région wallonne

Finally, there is the case of Brüstle v. Greenpeace, regarding the interpretation of art. 6(2)(c) of Directive 98/44. When that provision says that “uses of human embryos for industrial or commercial purposes” cannot be patented, what is and is not a “human embryo”? Does that include various kinds of stem cells? And what about scientific research? To my untrained eye, it seems as if the Court gives a fairly expansive answer to these questions, i.e. bad news for the promotion of medicine and science. Cf. bbc.co.uk, EurActiv, EUObserver

UPDATE: There's a longer analysis of this case on the great new EU Law blog Eutopia law.

In other news:

In environmental law, the 4^th Chamber asked nicely whether Northern Ireland would please create some kind of functional separation between the agency drafting the plan and the agency that is consulted under art. 6 of Directive 2001/42 for the purposes of preparing an environmental impact assessment. Department of the Environment for Northern Ireland v. Seaport (NI) and others

The bankruptcy case of Interedil is mostly interesting for its procedural manoeuvring. Since it arises in the area of JHA pre-Lisbon, the Commission wondered whether a court against whose judgement a national appeal was available could ask a prejudicial question. The Court replied that the current jurisdictional rule applies, meaning that the questions are in. There was also a Rheinmühlen/Elchinov issue, where the Court simply repeated its earlier statement: a national appeals court cannot stop a lower court from asking a prejudicial question.

AG Mazák looked at the Market Economy Investor Principle, specifically as applied to the behaviour of the French state as sole shareholder of Électricité de France. The Commission thought it was unlawful state aid (part 1 and part 2, both dated 16 December 2003). The Court of First Instance annulled parts of that decision (NL, DE, FR). The AG now sides with the Commission on all of its grounds for appeal, and is actually quite critical of the CFI in doing so. For this reason, he proposes renvoi. Let’s see what the Grand Chamber says. Commission v. EDF et al.

AG Cruz-Villalón proposes that the Court should sign off on an Italian law (art. 392 CPP) which aims to protect minor victims of crimes against themselves by not giving them the right to be heard during the pre-trial phase that is accorded to adults under Framework Decision 2001/220, including the fact that such minors cannot appeal the prosecutor’s decision not to let them testify at that stage. The AG argues that the Framework Decision leaves the Member States ample freedom to decide on details such as this. X v. Y (NL, DE, FR, IT)

AG Sharpston has another Dutch Turkish free movement of workers case, and again the Dutch lose. Her conclusion is simple enough to quote: “Article 7 of Decision No 1/80 of the EEC-Turkey Association Council (…) must be interpreted as meaning that the family members of a Turkish worker duly registered as belonging to the labour force of a Member State may continue to invoke that provision notwithstanding that that worker has acquired the nationality of the host Member State while retaining his Turkish nationality.” Joined cases of Kahveci and Inan

Finally, I have a question: Even though the work of ratings agencies is not protected as free speech in Europe like it is in the US, how can this possibly be legal? “The Financial Times Deutschland on Thursday (20 October) disclosed plans by EU single market commissioner Michel Barnier to allow Esma, a new Paris-based EU financial supervisor set up in 2011, to impose "temporary" bans on agencies such as Fitch or Moody's from publishing sovereign debt ratings at critical moments.” Source: EUObserver