This Week in Luxembourg

The last set of rulings and opinions before the Court's summer vacation.

- In the biggest ruling of the day, the Grand Chamber of the Court has upheld the Commission's non-contractual liability for its flawed statement of objections in the merger case against Schneider. The ECJ did find in the Commission's favour, however, on one of the aspects of causation: The fact that Schneider ended up taking a big loss on the shares it had acquired for the purposes of the merger is not "caused" by the Commission's tortious behaviour. As a result, the Commission will end up paying a sum significantly smaller than the approx. € 1 bn it was originally liable for. Schneider.

- In the ongoing litigation about Germany's Grüne Punkt, the Grand Chamber found against the Green Point. Just like the Commission and the CFI had decided before, DSD is abusing its market power as a trademark holder by essentially forcing license holders of its Grüne Punkt logo to pay for services they are not enjoying. Der Grüne Punkt/DSD v Commission.

- In the ongoing war between old media ("dead trees") and new media, the ECJ held for the old media today, ruling that an automated process which returned 11 copyrighted words in response to a search (the search word itself + the 5 words before and the 5 words that appear after the search term) required the consent of the copyright holder. Infopaq v Danske Dagblades Forening.

- AG Sharpston opined that under certain circumstances, it can be compatible with Community Law for a footballer to be required to compensate the club or clubs that trained him as a junior. However, this only works if the sum demanded corresponds roughly to the expense incurred by the club and if the sum is to be paid by the player himself. Olympique Lyonnais v Olivier Bernard and Newcastle United. In a different opinion, she also stood up for the free movement rights of snowboard instructors. Commission v France.

This Week in Luxembourg

This week:

- On July 9, the CFI rejected an attempt by British Melli Bank to attack Regulation 423/2007, which imposes certain sanctions against Iran, and specifically Decision 2008/475 which added the bank to the list of entities whose funds were frozen under art. 7(2) of the Regulation. The decision involved no discretion, so it could not be attacked on its own. The argument that the sanctions regime was in violation of the principle of proportionality was rejected, as were arguments based on the factual underpinnings of the decision and the principle of non-discrimination. Melli Bank v Council. N.B. this case did not cite Kadi, because the sanctions regime here was more or less independent from Security Council Resolution 1803 (2008). Cf. par. 99 of the ruling.

- In a state aid case concerning a Commission's decision not to raise objections, the application by the Danish general trade union 3F is declared admissible. Contrary to what the CFI had decided, 3F is a party "concerned" within the meaning of art. 88(2) EC, because the aid allegedly affects its negotiating position, and because the aid affects the union's members who are employed in the sector. The case is remitted. 3F v Commission.

- On appeal, Archer Daniels gets its citric acid cartel fine reduced by a quarter. The statement of objections sent by the Commission did not state with sufficient detail how ADM ended up being classified as the leader of the cartel, thus violating its rights of defence. (The Commission annexed a report by the FBI, without really discussing it in the body of the statement.) Now that ADM is no longer a leader, the basic amount of the fine is lower, leading to a reduction of the total fine by a quarter. Archer Daniels Midland v Commission.

- On July 7, Greece was ordered to pay a penalty payment of € 16.000 per day and a lump sum fine of € 2 million because it failed to recover illegal state aid given to Olympic Airways. The trickiest part of the dispute was about whether or not Greece had in fact recovered the aid by the time of the Court's hearings. If so, a penalty payment would not have been possible. It turns out that recovery through offset is possible, but that there was insufficient evidence that any recovery had actually occurred here. Commission v Greece.

Last week:

- Bavaria is still allowed to call itself Bavaria, even though it is not from Bavaria. In order to decide that the ECJ first had to decide that "Bavaria did not undoubtedly have standing to bring an action for annulment" (par. 46), in which case the 234 question would have been inadmissible. Question 1 concerns a whole stack of factors that might affect the validity of the PGI regulation in question, all of which fail, but in response to the second question the Court ruled that Bavaria can be saved under art. 13 and 14 of Reg. 2081/92, because it is pre-existing, registered in good faith and there is no risk of confusion.

- It turns out insolvency in the common market can still be a mess, despite the existence of Regulation 1346/2000. The bankruptcy at issue in SCT Industry occurred before the entry into force of the Regulation and the problem was too closely connected to the insolvency to allow the application of the general Brussels Convention Regulation (Reg 44/2001).

- AG Trstenjak tackled a case about parallel imports of medicine and competition law. The case is a stack of appeals by pretty much all parties against a ruling by the CFI *from 2006 that gave each party, including the Commission, partly what it wanted. Originally, the case got started because the Commission refused GlaxoSmithKline's application for a negative clearance of their General Sales Conditions. While the lower court's ruling was not entirely flawless, the AG now recommends that all appeals be denied. GlaxoSmithKline et al. v Commission.

- An opinion by AG Sharpston discusses the difference between "delay" and "cancellation" in air transport. Don't ask...Sturgeon v Condor Flugdienst GmbH. (Actually, she thinks the distinction is arbitrary and violates the principle of equal treatment.) On July 9, the Court decided that, under the Brussels Convention Regulation and this Montreal Convention, both the court of the Member State of departure, and the court of the Member State of arrival have jurisdiction, on the applicant's choice. Rehder v Air Baltic.

- On July 1, the CFI ruled on the bankruptcy of Kliq, the privatised Dutch "reintegration" company. Apparently, the Commission had incorrectly decided that the restructuring, which involved cash flows from the bankrupt and fully state owned KG Holding to its subsidiary Kliq Reïntegratie were "state" aid, also because the Rechter-Commissaris had signed off on it all. Only KG Holding was the recipient of aid, and only from them can recovery be ordered. Unfortunately, this implies only a partial annulment of the Commission's Decision. The Dutch still have to recover the restructuring aid. KG Holding v Commission.

- The CFI ruling in ThyssenKrupp considers the effect of the expiry of the ECSC treaty, the principle of res judicata, and a few smaller points in the context of the competition case against ThyssenKrupp. In the end, ThyssenKrupp lose on all points, and continue to be liable for € 3.168.000 in fines.