This Week in Luxembourg

- In a Dutch 234 case, someone tried to get the city to tell him to whom his GBA data had been disclosed over the previous two years. (GBA = Gemeentelijke Basis Administratie = the City's record of its inhabitants with some information about each of them, which they use for example to make a voters' list.) Apparently the GBA Act only required the city to give him this information for the previous one year, hence the dispute. The Raad van State asked the ECJ, because there was an EC data retention directive in play, and the ECJ's answer is that he should be able to access this information, but that the MS are free to set a time limit. It is up to the national court to decide whether in this case "fair balance" has been struck, although the ECJ gives some indication that this is not the case. Rijkeboer.

- In a Portugese 234 case, there is a bit of a mess in the Portuguese bus market (?). Apparently, the bus companies of Lisbon and Oporto, who receive a government subsidy because they have a public service obligation, also run buses to the rest of Portugal, in direct competition with the plaintiffs and without any PSO. Since it is impossible to calculate the amount of compensation to which the defendants are entitled, the ECJ rules that it would be unlawful to give them any. This result is reached under a transport law regulation, without recourse to state aids law. Antrop and Others.

- AG Sharpston delivered an opinion in an Italian 234 case that crosses over between Fèta-type appellation of origin law and trademark law. Two producers' associations in Emilia-Romagna are trying to get "Salame Felino" (=a type of salami) protected the same way Fèta is. In the mean time, they registered it as a collective trademark. Plaintiff has been using this description for many years in good faith, but now he got in trouble. Much hilarity ensues. Severi.

- The CFI handed down four rulings in competition cases. (Three regarding a cartel in the industrial tubes sector, and a merger control case in the Dutch pig market.) In all four, the court left the Commission's decision intact. In a clear case of "everything but the kitchen sink", Wieland-Werke started by arguing that art. 15(2) of Regulation 17, which governs the fines the Commission can set, was in violation of the lex certa principle. (NB, Reg. 17 is so called because it is so old that it predates the current numbering system.) That case and the KME ruling do have an interesting discussion of the application of the leniency notice, though. Both applicants felt they deserved a higher discount than the one they got. (Not to mention higher than the one the other got.) In the Dutch pig case, some farmers' unions objected to a Commission decision allowing Hendrix Meat Group to be taken over. (NVV et al. v Commission)

This Week in Luxembourg

- Yes, a fixed price for (imported) books is a measure having equivalent effect under art. 28 EC, and no, it cannot be justified under art. 30 EC. Fachverband der Buch- und Medienwirtschaft v LIBRO. This case may not entirely condemn the Dutch system, since I think the Court placed quite a bit of weight on the system chosen by the Austrians. Their law said that the fixed price set by the importer must not be lower than the price in the country of original publication. It is only this aspect of the Austrian system that was attacked in this case. So this ruling might not apply directly to the Dutch system.

- In BIOS Naturprodukte, the ECJ clarified the definition of "medicinal products" under directive 2001/83. As it turns out, incense extracts are not medicine. Or, as the Court put it: "apart from the case of substances or combinations of substances intended for the purpose of making a medical diagnosis, a product cannot be regarded as being a medicinal product by function where, having regard to content and if used as intended, it is incapable of appreciably restoring, correcting or modifying physiological functions in human beings. (...) This conclusion is not invalidated by the fact that the product in question, under normal conditions of use, may involve a risk to health." (par. 23, 24)

- In a State Aid case, Italy won on appeal after having already won in the CFI. The Commission had not proven that the subsidised loans given by the Italian government in order to help certain companies conquer foreign (non-EU) markets had a significant effect on the Common Market.

- And in a continuing string of success for the Italian republic, the ECJ ruled yesterday that the Parliament acted ultra vires when it purported to use its power under the rules of procedure to verify the credentials of newly elected MEPs to overrule a ruling by the Italian Council of State in a conflict between two people claiming the right to take the same seat. The Parliament has to accept the official statement by the MS as to who is elected. Italy v. Parliament.

- Finally, the CFI ruled in three competition cases. CD-Contact Data got its fine cut by 50% as a result of its "exclusively passive role" in the infringement. Nintendo got its basic fine increased by 75% for being the leader in an infringement and for continuation, and then decreased by 40% (instead of the original 25%) for cooperation. After subtracting the compensation already paid to third parties, they still have to pay € 119.242.500. In that same dossier,Itochu Corp's complaint was denied in full, so their fine of € 4,5 million stands.