Thursday, September 10th:
- In Competition Law, Akzo Nobel had its appeal denied in its entirety, just like the CFI’s judgement dismissed Akzo’s action in its entirety. Akzo is still liable for the actions of its subsidiaries, and it still has to pay a fine of € 20,99 million. (See Commission decision here.) Akzo v Commission.
- The ECJ overturned the CFI’s decision to declare admissible the action by an Italian regional body asking for the annulment of a Commission Decision ending some financial assistance. (The CFI ruled for the Commission on the merits.) According to the ECJ, plaintiffs are not directly concerned, since the decision was addressed to the Italian Republic, and its effect on plaintiffs was not “purely automatic”. Ente per le Ville Vesuviane.
- Under the directive on legal expenses insurance, Directive 87/344, the insurer cannot tell you who your lawyer should be, not even in a “class action”-type situation. Eschig v UNIQA Sachversicherung.
- Tricky bit of insolvency law: German company sells and delivers a good to a Dutch company, reserving title. The Dutch company goes bankrupt. The German company petitions a German court for protective measures, which are granted. Can that decision be recognised in the Netherlands under the Insolvency Regulation (Regulation 1346/2000) or the general Mutual Recognition of Civil Judgements Regulation (Regulation 44/2001)? Given art. 7(1) of the insolvency Regulation, it wins. German Graphics Maschinen GmbH
- The Plantanol case isn’t very interesting, except for the fact that it involves the principles of legal certainty and legitimate expectation. A tax advantage designed to promote biofuel was abolished/replaced sooner than originally announced. The Court ruled that exceptional circumstances are not required in a situation like this one. I’m not sure how much it mattered that this was about a legislative enactment, not administrative law.
- The City of Gotha in Germany cheated a bit in awarding the contract for water supply and sewage contracts. They arranged for an informal tender, looking to keep the existing arrangement in place. (They had an independent company in place that was a joint venture between a number of local authorities.) Unfortunately, the fact that consideration consisted solely in the right to collect payment from citizens meant that this was a “service concession”, not a “service contract”, meaning that a formal tender should have been used. WAZV Gotha v Eurawasser.
- In another public procurement case, the ECJ clarified the meaning of “control similar to that which it exercises over its own departments”, i.e. the situation when no tender is necessary. Sea Srl v Comune di Ponte Nossa.
- AG Kokott delivered an opinion in a Belgian insider trading case: Spector Photo Group. (In Dutch) She proposes that someone does not automatically “use” inside knowledge when they possess it and trade anyway. To be continued...
Tuesday, September 8th:
- The Grand Chamber upheld the Portugese state monopoly in gambling - including online gambling and - against a challenge under art. 49 EC. Fairly straightforward Internal Market case, although it might have been different under Bolkestein's original directive... Liga Portuguesa de Futebol Profissional and Bwin International v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa. Cf. EU Law Blog.
- The Grand Chamber (Timmermans, rapporteur) handed down another ruling in the ongoing saga about Bud/Budweiser beer. This line of litigation is separate from the one that resulted in a ruling for the Czechs earlier this year. Instead, the Austrian court asked for a clarification of the ECJ's ruling in 2003. (Case C-216/01.) This case includes not only the usual problems of trademark and protection of geographical indications (PGI), but also problems with pre-existing treaties among Member States. Budejovicky Budvar.
- The Grand Chamber (Timmermans, rapporteur) ruled on the legality of Regulation 1013/2006 on shipments of waste, which I actually remember from my time in Brussels. (It took our friend Johannes Blokland, MEP three years to negotiate, until it was finally resolved as a second reading agreement in June 2006.) Fortunately for everyone, the Court agrees that this was an environment measure, even though it also covers the trading of waste into and out of the Common Market. The Rotterdam Convention cases (C-94/03 and C-178/03) are distinguished. Commission v. Parliament and Council.
- AG Trstenjak delivered an opinion about the defective products directive. He concludes that a British rule allowing for the substitution of the supplier of the good for the producer in certain circumstances is compatible with the directive.Aventis Pasteur. In addition, there is an opion by AG Mazák on food safety and art. 28. Commission v France. (in French), and an opinion by AG Trstenjak about consumer protection and contracts negotiated away from business premises, in this case participation (and its cancellation) in a real estate fund. Friz. (In German.).
- This is fun: to what extent does a third party complainant in a state aid case have the right to have access to the documents prepared and gathered by the Commission in its original investigation? Originally, the answer would be: very limited. Only parties to the original case would have access. But what if they make a request under the general access to documents Regulation? The Commission refused (“undermine (...) the purpose of inspections, investigations and audits”), the CFI overruled, and AG Kokott now agrees with the CFI. Technische Glaswerke Ilmenau. (In German.)
- Last Friday (Sept. 4) in Luxembourg: The CFI confirmed that an Italian scheme giving income tax relief to companies seeking a listing on a stock exchange was unlawful state aid. (Commission Decision 2006/261.) I'm not sure that I agree. If anything, it's probably the relatively short period (15 months) in which the scheme was available that damns it. I don't see why a permanent tax incentive encouraging companies to seek a listing, even if the incentive is unrelated to the costs involved in seeking a listing, should qualify as state aid. Italy v. Commission.
P.S. Here is EU Law Blog about last week's International Fund for Ireland case. Incidentally, it appears I made a mistake writing about that case. The Court's analysis of art. 308 was not dicta. Rather, it was a necessary step towards the court's conclusion that the appropriate legal basis was the combination of art. 159, third paragraph, and art. 308 EC. Art. 159 alone is not enough, because that only covers "independent action by the Community" (par. 64).
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