Friday, May 01, 2009

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.

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