Monday, June 08, 2009

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.

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