This Week in Luxembourg

This week:

-

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.

-

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.

-

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.

-

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.

-

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.

-

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.