Thursday, September 24, 2009

This Week in Luxembourg

On Thursday, the ECJ rejected the appeal against case T-259/02 c.a., a cartel case regarding the Austrian banking industry. (Commission Decision.) Altogether, the ruling is a nice summary of the law on cartels, for example on the meaning of "may affect trade between MS" and how this is to be proved, the relative severity of infractions, the attribution of infractions to subsidiaries and previously independent companies, etc.

Erste Bank der Österreichische Sparkassen. (German)

Also on Thursday, AG Mazák discussed the distinction between sale of goods and delivery of services for the purposes of Regulation 44/2001, as well as their respective locations. He argues that the distinction is not (necessarily) the same as for the purposes of Internal Market law. (par. 18) He proposes that the Court should avoid defining the distinction in general terms, and instead should tackle the problem one case at a time. (par. 20) As for place of delivery, he recommends that the Court base this on the location of the transfer of physical control, not the delivery terms of the contract. Car Trim.

Spain failed to transpose Directive 2006/70. The intriguing thing about that is the title of the Directive: "[A Directive] laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of "politically exposed person" and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis". It's about money laundering and terrorism. Commission v Spain (French).

On Wednesday, the CFI ruled in two Carbon Trading cases: Poland v Commission and Estonia v Commission. Both of these cases concern the distribution of power between the Commission and the Member States under art. 9 of Directive 2003/87, concerning the National Allocation Plan. While the Commission may review and reject this plan, what they may not do is decide at what level the allowance should be set if not that proposed by the Member State. (EUObserver.)

On Tuesday, there was the eagerly anticipated opinion of AG Maduro in the IP case against Google. He recommends that Google should be allowed to continue to offer its AdWords service even for keywords that are registered trademarks, meaning that you type "Louis Vuitton" and the ad on the side of the screen might refer you to a site that sells counterfeit LV products, because that site paid Google for that privilige. (Cf. Directive 89/104.) Google France and Google (Cf. BBC)

This one is particularly interesting from a Public Administration point of view: Apparently, in French public procurement law (Code des Marchés publics) there is such a thing as a marché de définition, where the public authority awards a contract for the design of the terms of a marché d'exécution, i.e. a normal public procurement contract. Since the former aren't mentioned in the relevant directive, the French have been running them as they saw fit, i.e. intransparently and uncompetitively. To make matters worse, the winners of such a procedure can later be grandfathered into a protected position for the normal procurement. (art. 74-IV CMP) Like the Commission, AG Mazák now thinks all of this is not OK. Commission v France.

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