This Week in Luxembourg

This week:

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In answer to a prejudicial question from the Dutch Raad van State about mandatory BSE testing, the ECJ ruled that the Dutch government was allowed to charge for such tests. (Interesting preliminary question, already resolved by the RvS in an earlier ruling: Is an invoice for such testing a decision over which administrative courts have jurisdiction? The lower court said no, the RvS said yes.) Exportslachterij J. Gossalk & Zoon.

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In a Spanish 234 case, regarding judicial cooperation in civil and commercial matters, there is conveniently some dispute in Spanish law about whether or not the national court’s ruling can be appealed. Also, there is enough of a dispute before the national court to allow a prejudicial question. In answer to the question itself, the Court ruled that extrajudicial documents can fall within the scope of art. 16 of Regulation 1348/2000 even in the absence of an actual dispute before the court. Roda Golf & Beach Resort.

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According to AG Mazák, the ECJ does not have jurisdiction over cases arising under the Warsaw Convention, which deals with liability for air accidents. This is a tricky question. On the one hand, the Convention predates the Community by several decades, on the other hand, the Convention is referred to on several occasions inRegulation 2027/97, the EC’s own statute on this matter. (Which the plaintiff could not use in the matter at bar.) According to the AG, this is not enough to be able to say that the Convention has become part of the Community legal order. Bogiatzi.

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AG Ruiz-Jarabo Colomer discusses an Austrian environmental case. He argues that the Umweltsenat is a judicial body in the sense of art. 234, taking his time to carefully recommend a stricter application of the Court’s ruling in Vaassen-Goebbels, which governs the access to art. 234 by quasi-judicial bodies. In answer to the actual question, he proposes that an Environmental Impact Assessment should be carried out if the total size of the project passes the threshold, even if the project extends through several MS. (The case was about a power line.) Alpe Adria.

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Finally, AG Sharpston proposed that the Court strike down a Walloon law reserving a certain percentage of places in various medical studies for Belgians. Apparently, French students are coming there the same way the Dutch study in Flanders and the Germans study in Austria. Not even an appeal to art. 149(1) EC and art. 13(2)(c) of the International Covenant on Economic, Social and Cultural Rights could help the government.Bressol and others. (Note the final remarks in par. 151-154, where the AG calls on the Community legislature to help the Belgians out.)

Last week:

-	In L'Oreal, the ECJ approved a trademark claim even in the absence of any risk of confusion. Rather than try to pass of their fakes as real, the defendants admitted they were fake, and advertised emphasising how much cheaper the fake was than the real L'Oreal products. That is not allowed.

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The Finnish tax authorities were confused by the Luxembourg phenomenon of a SICAV, a société d'investissement à capital variable, i.e. an open-ended investment company. The Court now ruled that they may not discriminate when it comes to withholding taxes, even though the SICAV does not appear in the annex to the relevant directive. Aberdeen Property Fininvest Alpha Oy.

-	There's another case in the area of regulation of medicine. Generics (UK).

-	The CFI dismissed the complaint filed by Qualcomm against the Commission's decision to allow the takeover of the German Autobahn toll people by Daimler. The case turns mostly on the (fact-intensive) question of the sufficiency of the commitments made by Daimler. Qualcomm v Commission.

This Week in Luxembourg

- In the ongoing dispute about whether Competition fines should be tax deductible under Dutch law, the ECJ ruled that the Commission has the competence to submit written observations to the national court on its own initiative, under art. 15(3)(1), third sentence of Regulation 1/2003. (" Where the coherent application of Article 81 or Article 82 of the Treaty so requires, the Commission, acting on its own initiative, may submit written observations to courts of the Member States.") Inspecteur van de Belastingdienst v X BV.

- On June 9, the Court applied some common sense to the case about the (absence of a) tender for waste collection in the area around Hamburg. Four municipalities made a contract with the Stadtreinigung Hamburg without conducting a formal tender. AG Mazak concluded that this violated the Court's case law on when tender procedures have to be conducted, since these municipalities did not grant the contract to an organisation that they themselves controlled. The Court now disagrees.

- Today, in a German case about tender procedure run by a Krankenkasse, the Court ruled that the mere fact that such bodies are included in the annex to Directive 2004/18 is not enough to prove that they are governed by public law. The Courts have an independent duty to verify this given the facts of the case. (A Krankenkasse is, indeed, governed by public law.) The rest of the case concerns the question whether a mixed contract should be treated as a contract for goods or a contract for services. Hans & Christophorus Oymanns.

- Dutch tax authorities are allowed to enact a longer recovery period for wealth hidden abroad rather than in the Netherlands. X v Staatssecretaris van Financiën. They may not, however, discriminate against Iceland and Norway in their treatment of dividends paid to foreign companies. Commission v. Netherlands.

- The CFI applied the Kadi precedent to the case of Omar Mohammed Othman, currently being detained awaiting deportation in the UK. He'll have to wait for the ECHR to rule on his deportation, but at least he can have his bank accounts back.

- The CFI also applied Plaumann and Sardegna Lines in a series of Italian sectoral state aid cases, all of which were either inadmissible or unfounded. ASM Brescia v Commission, ACEA v Commission, Italy v Commission, Acegas-APS v Commission, etc, etc, etc.

- On June 9, the CFI ruled that a competitor cannot force the Commission to investigate existing state aid. A letter from the Commission notifying the complainant that it would not investigate further is not a decision in the sense of art. 230 EC, since no Commission decision could be said to exist. The case law on significant difficulties only applies to new aid. NDSHT v Commission.

This Week in Luxembourg

- The rules protecting consumers against unfair terms (i.c. art. 6 of Directive 93/13) have to be applied by the court of its own motion when the consumer does not invoke them himself. Pannon GSM.

- Replying to a prejudicial question from the Dutch CBB in a competition case concerning the mobile telecom industry, the ECJ emphasises the "or" in "anti-competitive object or effect", without saying anything intelligible about either. What it does say, is that exchange of information is bad, that anti-competitive does not mean that an effect on prices is necessary, and that the national court is required to apply the presumption of causal connection between concerted practice and market behaviour in all circumstances. T-Mobile et al. v NMA.

- In Vatsouras, the ECJ says that not giving workers any social benefits when they first arrive, as allowed by art. 24(2) of Directive 2004/38, is compatible with the Treaty, even if this results in a situation where EU citizens are worse off than illegal immigrants.

- Directive 85/374 harmonises the law on defective products, making it easier for non-professional users to seek redress for damage caused by a defect. France extended that regime to professional users, and the defendant in a case before the Cour de Cassation tried some form of a contrario argument to argue that that was not allowed. The ECJ ruled that it was. Société Moteurs Leroy Somer.

- Greece has to pay a lump sum fine of € 1 million for not obeying a Court ruling requring it to liberalise its market for opticians, and a daily penalty payment of € 31.536 in another case concerning computer games in public places. Greece did get a partial win, though, in a case about irregularities in a tender for an electric power plant.

- On June 2, AG Ruiz-Jarabo Colomer considered a very creative approach to public-private partnerships, coming from Sicily. The idea was to use a competitive tendering procedure to select the private party who would be allowed to take a minority shareholding in a water company, as well as undertake certain responsibilities with regards to its operations. After giving a useful discussion of this area of the law, the AG argues that the system is OK, as long as certain requirements are met. Acoset.

- On May 19, Italy was allowed to keep its restrictive rules regulating who is allowed to own and operate a pharmacy ina 230 procedure brought by the Commission, while a similar scheme in Saarland was upheld in a 234 case:Apothekerkammer des Saarlandes and others.

- Also on May 19, AG Bot delivered his opinion on a tricky piece of international law, concerning the application of the Rome Convention on the law applicable to contractual obligations to a contract in the transport sector. Not only does he prefer a flexible closest connection test over "fixed and rigid connecting factors", he also spends quite a bit of time on the possibility of having different law apply to different parts of the contract, i.e. "severability" under art. 4(1)(2) of the Rome Convention. The case is a 234 case from the Hoge Raad der Nederlanden, ICF v Balkenende Oosthuizen BV and MIC Operations BV.

- On May 14 in Luxembourg, there was some interesting common law/civil law mess about when a fake prize scam counts as a contract in the sense of Regulation 44/2001. If it is a contract, the victim/consumer can sue in her own court to claim her prize, since that would be the forum where the contract is to be performed. Otherwise, she'd have sue in Germany. At common law, the conclusion would be that there is probably no consideration (there is some factual uncertainty about this), so no contract. Here, the court chooses the middle ground, with some carbolic smokeballthrown in. Not very helpful... Ilsinger.