Today in Luxembourg

Today, the ECJ issued its last stack of judgements before it starts its Christmas vacation. Unfortunately, they don't fall into groups as neatly as last week's environment and state aid cases, so I'll bold the area of law in each case, while sorting them by importance as
always.

In Intellectual Property Law, the Bayerischer Brauerbund ("Bavarian Union of Breweries") lost its case against Bavaria again. Following last year's Bavaria and Bavaria Italy, the 3rd Chamber now further clarifies the clash between trademark and PGI, where the latter was obtained through a simplified procedure. The prior claim wins, but which date counts? The date of the initial simplified procedure or the date of the Council Regulation affirming? The ECJ disagrees somewhat with the AG, but the Dutch still win. Bavaria v. Bayerische Brauerbund (Cf. fd.nl)

Also in Intellectual Property Law, the 3rd Chamber agrees with AG Bot that Graphical User Interfaces are not protected under Directive 91/250, the software patent directive, but that they are capable of being copyrighted under Directive 2001/29. Bezpeènostní softwarová asociace – Svaz softwarové ochrany v. Ministerstvo kultury

In access to documents law, the 4th Chamber agrees with AG Kokott that the Caisse des dépôts et consignations was justified in rejecting the request by the City of Lyon for information about the sale of emission rights by certain district heating companies until after the five year confidentiality period of art. 10 of Commission Regulation 2216/2004 was over. The lex specialis wins. Ville de Lyon

In the glorious free movement case of Sayn-Wittgenstein, the 2nd Chamber followed AG Sharpston's opinion. Yes, there is a free movement issue, but the Austrian rule banning all displays of noble rank is probably justified. The Court's explanation of this point includes some interesting observations on public policy and general principles of law (here: equal treatment) as a justification for restrictions of fundamental freedoms. Curiously, the Court does not seem to have touched on the issue of surnames and titles that vary depending on the sex of the person, which got all the Slavic countries so excited about this case. Cf. ECJBlog.com (about the AG's opinion)

In fundamental rights law, the 2nd Chamber gave a not-very-helpful judgment concerning the question whether Germany may refuse access to free legal aid to legal persons if there is no "public interest". In a particular case, this may be in violation of art. 47 Charter, but the Court leaves a lot of work still to do for the national court. Cf. Directive 2003/8, which establishes minimum common rules relating to legal aid in cross-border disputes. DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH

UPDATE: AdjudicatingEurope has a post about the DEB case, noting also the remark about separation of powers and the rule of law in par. 58.

In the Bozkurt case, the 1st Chamber follows AG Sharpston to hold that divorce does not cause a Turkish worker to lose his rights, despite the fact that those rights were originally linked to his being married to a lawfully immigrated Turkish worker. The fact that he was subsequently convicted of assaulting and raping her does not make his reliance on Decision 1/80 (p. 155/168 here) an abuse of right.

The Third Chamber slapped down a quite obvious case of government protection for incumbents and - to a lesser extent - potential entrants already established in Austria. That would be a free movement problem. Yellow Cab Verkehrsbetrieb v. Wien

In RTL Belgium, the 6th Chamber declined to answer the prejudicial question posed because it found that the Belgian Licensing and Control Authority of the Broadcasting Authority was not a "court or tribunal" within the meaning of art. 267 TFEU. That makes this case about EU Procedural Law.

In state aid and environment law, there is the appeal against Case T-233/04, an extended composition CFI judgement about the Dutch setup of its NOx emissions trading system. AG Mengozzi proposes overruling the CFI and restoring the Commission's decision declaring the design state aid, albeit lawful aid. The fact that intangible assets were provided for free is sufficient, the AG argues, to make this the transfer if a valuable resource out of state means. Commission v.
Netherlands (NL, DE, FR)

Finally, there are two urgent procedure child custody cases (cf. art. 104b of the Rules of Procedure). The Mercredi case concerns the notion of the child's "habitual residence" under art. 8 and 10 of Regulation 2201/2203. In Aguirre Zarraga (DE, FR), the question is one of enforcement of a ruling from another MS: May the German court decline to enforce the Spanish custody ruling because it judges that the Spanish judgement has violated the rights of the child (cf. art. 24 Charter)? The 1st chamber holds that it may not. Protecting the rights of the child is the responsibility of the Spanish court only.

P.S. The archive of these emails is here.

This Week in Luxembourg

This week, there were a large number of rulings in cases where I had already flagged the opinions in the previous months. As usual, the order is roughly in order of interest and/or importance, not to mention subject matter, with Grand Chamber rulings first, followed by ordinary ECJ rulings and AG opinions.

Easily the most fun of this week's judgements is Josemans v. Maastricht, the coffee shop case.Maastricht sought to restrict the access of non-Dutch citizens to their coffee shops. When this led to the applicant's establishment being closed, he raised an issue of discrimination under art. 12 and 18 EC (now art. 18 and 21 TFEU). AG Bot was quite outraged and defended the mayor's decision (NL, DE, FR). Taking a much calmer tone, the 2nd Chamber now holds that drugs, be they soft or not, are not subject to any of the free movement rules. The national rule at issue is discriminatory insofar as it restricts the freedom of non-Dutch EU citizens to go to Josemans' coffee shop to consume non-alcoholic beverages and food, but that restriction is justified and in any event relatively unimportant. Cf. NOS.nl and NRC Handelsblad.

NB. Earlier Dutch cofffee shop cases include theVAT Cases Case 269/86 Mol, Case 289/86 Vereniging Happy Family Rustenburgerstraat and Case C-158/98 Coffeeshop 'Siberië', all of which agree that you can't levy VAT on an illegal drug.

UPDATE: EU Law Blog has a post about the Josemans case.

In Commission v. France, the 2nd Chamber agrees with AG Mengozzi(NL, FR, DE) that a French rule forbidding biologists from holding shares in more than two companies formed in order to operate jointly one or more biomedical analysis laboratories is in violation of the freedom of establishment. A rule forbidding non-biologists from owning more than 25% of the shares, however, is justified.

In Environmental law,a number of Dutch NGOs asked for access to all the documents regarding the decision to set the Maximum Residu Limit of propamocarb on and in lettuce as it was set. The Trade and Industry Appeals Tribunal (one of the Netherlands' four supreme courts) asked whether this is "environmental information", and, if so, how Directive 2003/4 applies to this situation. In line with AG Kokott's opinion (NL, DE, FR), the 4th Chamber answered "yes" to the first question, while rejecting the possibility of a blanket denial under "commercial secrets". Stichting Natuur en Milieu

Also in Dutch Environmental law, one of the other Supreme Courts, the Council of State, had some questions about Directive 2008/1, concerning integrated pollution prevention and control. The case concerns emission limit values for three new power plants in Eemshaven and Rotterdam. AG Kokott argues that these limit values already carry significant weight during the transposition period. If this argument is followed by the Court, the Dutch government will be very unhappy... Stichting Natuur en Milieu v. Gedeputeerde Staten van Groningen en Zuid-Holland (NL, DE, FR)

In Non-Dutch Environmental law, AG Mengozzi has an opinion suggesting that the ECJ should reject Luxembourg's action for annullment of art. 1(2) of Directive 2009/12, which says that the directive applies to two kinds of airports: airports with more than 5 million passenger movements, and the largest airport in each MS. Luxembourg argues that that discriminates against its national airport Findel, which has fewer than 5 million passenger movements and which competes against German and Belgian airports which are of similar size, but which are not their country's biggest airport.Luxembourg v. Parliament and Council (DE, FR)

Also in Non-Dutch Environmental law, AG Sharpston argues in favour of the right of NGOs to sue to force the government to prepare environmental impact studies. Bund für Umwelt und Naturschutz Deutschland (NRW) v. Arnsberg

Finally, AG Trstenjak suggests that the ECJ should disapprove of a Tiroler rule restricting access of trucks weighing more than 7,5 tonnes to the Inntal autobahn if they carry certain goods, on the grounds that it is a non-justified restriction of the free movement of goods. Austrian concerns about NO2 emissions failed to convince her. Commission v. Austria (NL, DE, FR)

In State Aid law, two appeals were dismissed. In Kahla v. Commission(1st chamber), the appellant raised issues of legal certainty and legitimate expectations, and in AceaElectrabel v. Commission (2nd chamber), there was a bit of a messy situation with regards to the relevant "economic unit" that received the aid in question.

Also in State Aid law, but in the 3rd chamber, the appeal in Athinaïki Techniki v. Commission was upheld. The sequence there was that the Commission declined to investigate further, the CFI said that wasn't a decision, the ECJ said that it was, the Commission re-opened the dossier, the CFI said there was nothing to litigate over anymore, and now the ECJ,agreeing with AG Bot, disagrees. The Commission is not allowed to persist in its illegal failure to act while it investigates.

In Seydaland v. BVVG, the 1st chamber approved of a German Federal law setting rules for the valuation of land for privatisation purposes. An earlier version of this law had run into trouble with the Commission in the 1990s. The new rule is now held to sufficiently approximate the fair market value of the land.

In a final piece of State Aid news, the General Court upheld the Commission's decision that certain aspect of the financing of the Dutch NOS were contrary to Community law. The NOS now has to pay back € 76 million. Netherlands and NOS v. Commission (NL, DE, FR) Cf. NOS.nl

In Competition Law, a private litigant (go Courage v. Creehan!) wants access to a leniency application, but AG Mazák says they can't have it. That sounds quite obviouslyright. Pfleiderer v. Bundeskartellamt.

AG Jääskinen has a Lithuanian case on citizenship and non-discrimination, concerning a Lithuanian rule that first and last names must be in Lithuanian. The AG argues that art. 2(2)(b) of Directive 2000/43 does not apply here, but that art. 12(1) and 18(1) EC do limit the freedom of a MS to dictate the spelling of the names of EU citizens. So it looks like Mrs. Runevič-Vardyn will be allowed to have her name registered in the Polish form as Runiewicz-Wardyn, as she requested. Runevič-Vardyn (DE, FR)

AG Mazák proposes that Greece be ordered to pay a fine of € 2 million for failing to comply in time with Commission v. Greece (2007), a case about compensation to crime victims under Directive 2004/80. Since Greece has complied with the ruling by enacting the relevant statute on 18 December 2009, there is no need for penalty payments. (Cf. the Commission's communication on what is now art. 260 TFEU.) Commission v. Greece (NL, DE, FR)

According to AG Trstenjak, a worker habitually carries out his work in the Member State where he carries out most of his work (cf. art. 6(2) of the Rome Convention of 1980 on theInternational Private Law of contracts). I'm sure that will make things much clearer... Koelzsch v. Luxembourg (DE, FR)

The European Schools continue to cause trouble for the ECJ. In September, the ECJ held that it did not have jurisdiction overa dispute between the Commission and Belgium about the financing of the European Schools. Commission v. Belgium. AG Sharpston now proposes to declare admissible a prejudicial question from the Complaints Board of the European Schools about the remuneration system of the School's staff. Miles and others v. European Schools

On Wednesday, there were two competition cases in the General Court:

In CEAHR v. Commisison, the Confédération européenne des associations d'horlogers-réparateurs achieved an important victory in its ongoing struggle to force the Swiss watch producers to supply spare parts to independent watch repairers. The Court found that the Commission had defined the relevant market too broadly. More fun is how the Court examined the Commisison's decision that the matter simply wasn't important enough ("insufficient Community interest"). (par. 157-177)

In E.On v. Commission (DE, FR), the Commission's decision to impose a fine of € 38 million on E.On for breaking a seal (cf. art. 20(2)(d) and 23(1)(e) of Regulation 1/2003). This may seem a little harsh, but I suppose it makes sense under a theory of optimal deterrence. E.On. argued in eight different versions that they didn't do it, all of which were rejected, as was its ninth objection, concerning the proportionality of the fine.

P.S. The archive of these emails is here.

This Week in Luxembourg

This week, the Grand Chamber ruled in a nice internet/Brussels I case: Which country has jurisdiction over a consumer contract agreed over the internet? It follows from art. 15(1)(c) of the Regulation that the key question is whether the defendant "directed" his activities to the consumer/plaintiff's Member State. If that is the case, the consumer can sue in his home MS. The answer is, obviously, highly fact-specific, but at the very least it is insufficient that the website is accessible in the consumer's MS, or that it is written in the consumer's native language. Joined cases Pammer and Hotel Alpenhof

In Competition Law & Procedure, the Grand Chamber held this week that National Competition Authorities (NCAs) have to be able to participate as defendants in judicial review proceedings against their decisions. Cf. art. 35 of Regulation 1/2003. In Belgium, where things are never that simple, only the Federal Minister for the Economy was entitled to act in that capacity. VEBIC v. Raad voor de Mededinging and Minister van Economie

In the same field, AG Mazák discussed the limits of the power of NCAs to find an infringement - or lack thereof - of the EU Competition rules. The Polish NCA in this case found no infringement of the Polish rules on abuse of dominance, but it was argued that it should have held that there was no infringement of art. 102 TFEU. The AG now agrees with the Polish NCA that this is not possible. Cf. art. 5 of Regulation 1/2003. Prezes Urzędu Ochrony Konkurencji i Konsumentów v. Tele2 Polska sp. zoo, now Netia SA w Warszawie

Following the Google AdWords ruling earlier this year, it is now eBay who are feeling the wrath of the trademark owners. For them, the issues are somewhat more complex, but AG Jääskinen's opinion seems to let them off the hook most of the time, in some cases because their use of the trademark in question is not "in relation to" the infringing goods, cf. art. 9(1)(a) of Regulation 40/94, and at other times because their use of the trademark in relation to the infringing goods does not have an adverse effect on the functions of the trade mark. L'Oréal et al. v. eBay.

The Dutch concept of a "kort geding"/expedited trial survived a challenge under Directive 89/665, the public works contracts directive. The idea was that a kort geding combined with a later full procedure did not conform with the directive's requirement that there should be an effective system of judicial review for awards of public contracts. This argument was now rejected by the Second Chamber. (In case the later procedure finds an infringement, the disadvantaged party has to be compensated somehow, of course, but that's not a fundamental problem for the entire system.) Combinatie Spijker Infrabouw (NL, DE, FR)

In a decision that is sure to please the PVV, the Second Chamber also held that - under the famous standstill rule of art. 13 of Decision 1/80 of the EU-Turkey Association Council (p. 155/168 here) - the Netherlands may not tighten a rule that they had earlier relaxed, even when the net result is a rule that is still more relaxed than it was in 1980. Staatssecretaris van Justitie v. Toprak and Oguz

An Austrian rule forbidding the importation of blood products that have been paid for, even if the payment was only for costs incurred, was found to be in violation of the free movement of goods. Humanplasma

Apparently, the EU has a directive on zoos. (Not on the trading of zoo animals, but on the actual running and licensing of zoos.) Spain now received a slap on the wrist because some of its autonomous regions did not obey the rules of said directive. I'm sure the zoo animals in Aragon, Asturias, the Baleares, the Canary Islands, Cantabria, Castilia y Léon, Extremadura and Galicia feel much better now that the European Commission is looking after their welfare. Commission v. Spain (FR)

AG Trstenjak has a fun case in motor vehicle accident litigation. In Portugal, someone's trying to get around the automatic apportionment of risk provided for in the Portuguese Civil Code by pointing at the EU Directives on compulsory insurance, Directives 72/166, 84/5 and 90/232. Since there is no evidence of either driver being at fault, Portuguese law apportions the risk - and the ensuing liability - evenly, and the AG offers the injured driver no help. Carvalho Ferreira Santos v. Companhia Europeia de Seguros (NL, DE, FR)

From the terrorism front, the latest news is that the General Court upheld the inclusion of Sofiane Fahas in the EU's own sanctions list. Quick bit of fun: one of the applicant's forms of order sought was that he asked the court to "order the Council not to refer to him in any of its future [sanctions] decisions (...) for so long as it is not established by a judicial decision (...) that he is a member of 'Al-Takfir' and of 'Al-Hijra' or that he otherwise supports terrorism". (par. 25) Much as all terrorism applicants would like such a remedy, the Court quickly shot it down (par. 28-30) Sofiane Fahas v. Council.

On Friday, Ryanair lost all eight of its attempts to get access to the Commission's state aid dossiers relating to eight different airports. As far as I know, this is one of the first times the General Court has applied Technische Glaswerke Ilmenau. As such, the applicant is asked to rebut the "general presumption" that disclosure would hurt the interests of effective investigation (par. 70-84), which they failed to do. Ryanair v. Commission


Last Week:

Italy is allowed to deny qualified lawyers the right to practice if they are also part-time public employees. Edyta Jakubowska v. Alessandro Maneggia. On the other hand, Hungary is not allowed to limit the sale of contact lenses to specialised medical supply shops, to the detriment of the plaintiff internet site. Ker-Optika v. ÀNTSZ Dél-dunántúli Regionális Intézete.

There are also to state aid appeals. In Holland Malt, an agricultural case where the aid was found to be incompatible, that holding was upheld on appeal. In Belgium v. Deutsche Post et al. (NL, DE, FR), a "serious difficulties" case, AG Jääskinen argued that the CFI should have held the case to be inadmissible, or, in the alternative, that the case should have been denied as being without merit. Subject here was the financial relationship between the state of Belgium and the Belgian Mail.

P.S. The archive of these emails is here.

Google & Competition Law III

In the end, it is probably better to avoid limiting Competition Law to markets, and to define it by reference to competition instead. I was referred today to the definition of competition given by Stigler (1957), 65 JPE 1, who said that competition exists when two or more parties strive for something that they cannot all obtain. Following this definition, we could say that Competition Law deals with promoting competition in certain terms, i.e. with protecting competition where it exists, and promoting it where it does not.

Based on such an approach, it is obvious that Google competes, that its actions are legitimately within the ambit of the Competition Authorities, that it has a dominant position relative to its competitors, and that manipulating its search results to promote its own subsidiaries would constitute an abuse of dominance, being a form of monopoly leveraging.

The only question is whether this approach does not take us too far away from the text of the Treaty, and its orientation on markets involving bargaining between producers and consumers...

Google & Competition Law II

It occurs to me that there is a very good non-Internet analogy in the free newspapers that are given away at train and bus stations all over Europe every day. (Like Metro.) There, too, we have a product that is given away for free, financed by advertising paid for by someone else. The only difference is that these free newspapers compete with ordinary goods, i.e. with paid-for newspapers. As a result, it is not entirely clear that free newspapers form a distinct product market, as opposed to being part of the overall market for daily newspapers. Looking at the Commission's definition, as taken from the relevant secondary law

"A relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products' characteristics, their prices and their intended use. (Notice on market definition, par. 7.)"

we would conclude that daily newspapers are a single product market, which makes it a less than perfect analogy for search engines, which do not compete with a paid alternative. Nevertheless, it would be interesting to know if there is any case law regarding this "market", possible from a national competition authority.

Google & Competition Law

Last week, the Commission announced that it was investigating Google for abusive practices relating to its main search engine. (Cf. Commission Press Release and EUObserver) Here's a question: Can they do that? Specifically, my curiosity is piqued by the idea that Google might be acting anti-competitively in the manner in which it gives its services away for free.

The Commission will investigate whether Google has abused a dominant market position in online search by allegedly lowering the ranking of unpaid search results of competing services which are specialised in providing users with specific online content such as price comparisons (so-called vertical search services) and by according preferential placement to the results of its own vertical search services in order to shut out competing services.

As a matter of general principle it is certainly possible to run afoul of the competition laws by giving things away for free. The most famous case is the Microsoft case, which included charges of unlawful tying by including Windows Media Player and Microsoft Internet Explorer for free with every copy of Windows OS. But that case can be distinguished because, unlike Microsoft, Google doesn't give and sell to the same persons. No tying here...

Similarly, there is no possibility of arguing that Google is engaging in predatory pricing, since no one expects it to start charging for its search engine at some future date. While EU competition law does not require a threat of future recoupement for predatory pricing, it is difficult to see how such a case could be made against a company that plans to keep giving away its service for free indefinitely. (Cf. Brooke Group in the US and Tetra Pak II, par. 44 in the EU, for authority on the issue of recoupement.)

Finally, there's the Google AdWords case from March this year, which offers no direct guidance because it dealt with trademark infringement instead of competition law. (It did deal briefly with the non-AdWords part of the Google Website, but only to remark that Google wasn't "using" the trademarks in question there.)

So which "market" is it exactly that Google is supposed to have a dominant position in? It cannot be the AdWords market, since this case has nothing to do with paid advertising. (Well, there is a simultaneous claim that "Google lowered the 'Quality Score' for sponsored links of competing vertical search services", where "the Quality Score is one of the factors that determine the price paid to Google by advertisers", but that is not the part that I'm interested in now.) So it has to be the market for search engines, meaning that we have to consider whether a market for free services is a market in the meaning of art. 102 TFEU.

Looking at the article itself, it is clear that only services provided for consideration were contemplated when it was written, given that it refers to "trade between Member States", and that three of the four examples given contemplate consideration as well. (Example (a) does so literally, (c) speaks of "transactions" and "trading parties", and (d) speaks of "contracts" and "supplementary obligations".) Of course, the fact that only services for consideration were contemplated does not mean that the article only applies to that category of services...

The Commission's notice on market definition also doesn't explicitly rule out applying competition law in a not-for-consideration context, but again that does seem to be the underlying assumption.

Looking at the case-law, we find quite a bit of language on the distinction between an "undertaking" and a body that carries out a government duty. (Cf. Albany, par. 77-79, for example.) The fact that the ECJ defines that concept by reference to the concept of "economic activity" does not seem to be very helpful, given that it is unquestionably true that Google is an undertaking within the meaning of art. 102 TFEU. Regardless of whether its activities on the "market" for search enginges is "economic", Google's reasons for engaging in those activities certainly is "economic", in that the search engine allows it to make money on the market for advertising. In any event, in Case C-244/94 Fédération Française des Sociétés d'Assurance and Others v. Ministère de l'Agriculture et de la Pêche, the ECJ wrote:

21 Finally, the mere fact that the CCMSA is a non-profit-making body does not deprive the activity which it carries on of its economic character, since, having regard to the features referred to in paragraph 17, that activity may give rise to conduct which the competition rules are intended to penalize.

This is probably the key factor: the "conduct which the competition rules are intended to penalize." If Google really does manipulate its search results to promote its own subsidiaries, the mere fact that the only market on which dominance might exist is a market where the service is given away for free will probably not deter the European Commission or the ECJ. After all, such behaviour would be cheating, and you can't let big companies get away with cheating...

This Week in Luxembourg

This week's Grand Chamber judgement concerns the rights of Union citizens with a right of permanent residence in another MS under art. 16 of Directive 2004/38. Specifically, Germany wants to send Mr. Tsakouridis back to Greece as soon as his sentence for organised drug smuggling is over, but the German court is uncertain whether that qualifies as an "imperative ground of national security" under art. 28(3). The ECJ, following AG Bot, says that it does. Note also the remarks on how to assess whether he qualifies for hightened protection in the first place. Land Baden-Württemberg v. Tsakouridis.

[UPDATE: AdjudicatingEurope has a post on this case, as does the website of the Dutch NRC newspaper, who emphasise the connection between this case and the recent French Roma uproar.]

The most politically sensitive case of the week is Case C-40/10, Commission v. Council (FR), where the 3rd Chamber (with Lenaerts as President and Von Danwitz as Rapporteur) essentially sided with the Commission in the ongoing dispute over the remuneration of the Eurocrats. The Court annulled all but art. 1 and 3 of Regulation 1296/2009, on the grounds that it violated art. 65 and Annex XI of the Staff Regulations (cf. p. 59-64 here), because it failed to correctly apply the cost of living adjustments prescribed. Let the screaming begin...

In his second case before the Court of Justice, Mr. Fuß the annoying fire fighter from Halle again wins his case. Having already established that the Working Time Directive applies to fire fighters as well, and that the city was not allowed to compulsorily transfer him to a desk job for insisting on his "rights" (Case C-243/09), he now mostly wins as to remedies. The gentleman's right to reparations may not be conditional on "a concept of fault going beyond a sufficiently serious breach of EU law", and it may not be conditional on his having made a prior application to the employer for less work. Fuß II.

AG Kokott has a nice case on dual citizenship. Here's the conclusion: "Where a Union citizen is a national of two Member States of the European Union but has always lived in only one of those two States, she cannot claim a right of residence under Directive 2004/38 in that State." In this case, the applicant had dual Irish/UK citizenship (of course), and was looking to secure a right of residence for her Jamaican husband. R. (ex parte McCarthy) v. Secretary of State for the Home Department

AG Trstenjak considered the scope of the ban on advertising for prescription-only medicinal products (cf. art. 88(1)(a) of Directive 2001/83). The question is whether a website that gives information about a medicinal product qualifies as advertising under this provision. The AG says that it does not, as long as the website gives only the information that was also provided to the MS regulator, and as long as the information is only accessible to someone who deliberately looks for it. (Instead of having it pop-up unsolicited.) MSD Sharp & Dohme v. Merckle (NL, DE, FR)

Finally, AG Jääskinen has an opinion on procedure & state aid in the appeal against case T-388/02. The question is to what extent other interested parties have a right to protect their procedural rights when the Commission declines to open the formal investigation procedure. The AG suggests that the existing case law on admissibility should be affirmed (cf. Cook and Matra), but that the General Court got its application wrong. The applicant should have been more explicit in explaining why there were "serious difficulties" Commission v. Kronoply and Kronotex (NL, DE, FR)

P.S. The archive of these emails is here.

This Week in Luxembourg

The Grand Chamber judgement of this week, Mantello, deals with ne bis in idem and the European Arrest Warrant. The Court affirms that the notion of "same acts" (cf. art. 3(2) of the Framework Decision) is an "autonomous concept of EU law". The Court also finds that there was no double jeopardy here, relying on the issuing court's reply to the information request under art. 15(2) of the Framework Decision, something the AG had avoided. Unlike AG Bot, the Court did not make an explicit link with art. 54 of the Schengen Agreement, which also deals with ne bis in idem. Gaetano Mantello.

The Fourth Chamber discussed the issue of comparative advertising (cf. Directive 84/450, as amended by Directive 97/55). While the detailed factual issues remain to be worked out by the national court, of course, on the whole the judgement is favourable to the right of market participants to compare themselves to their competitors. Lidl SNC v. Vierzon Distribution (it was Lidl who were trying to stop the advertising in question)

In Commission v. Portugal, the Court rejected a Portugese authorisation scheme for construction companies as violating art. 49 EC, because the scheme failed to take into account the requirements already imposed on a non-Portuguese company by its home authorities.

In Pensionsversicherungsanstalt v. Kleist, the Second Chamber held that a Member State may not establish different retirment ages for men and women. In a Bulgarian retirement case, Georgiev v. Tehnicheski universitet - Sofia, filial Plovdiv, the same chamber upheld the arrangements at issue against a complaint of age discrimination.

In the state aid case of NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v. Commission, the General Court had held that the case was inadmissible because there was no decision to appeal against. This decision is now overturned on appeal by the Third Chamber. Incidentally, the case concerns a complaint by a competitor, which was rejected by the Commission.

In environmental law, AG Mengozzi argued that a permit for the exploitation of an airport that does not involve any actual changes in the manner in which the airport operates does not fall within the ambit of Directive 85/337, meaning that the Region of Flanders will not have to do an environmental impact study before giving Brussels Airport a new permit. Bruxelles Region Capitale et al. v. Flanders (NL, DE, FR)

P.S. The archive of these emails is here.

Supply Responses to Digital Distribution: Recorded Music and Live Performances

This one goes in the category: That took them long enough. Someone finally took a look at the effects of P2P and other modern music trading on the market for live music. Here's the abstract:

Changes in technologies for reproducing and redistributing digital goods (e.g., music, movies, software, books) have dramatically affected profitability of these goods, and raised concerns for future development of socially valuable digital products. However, broader illegitimate distribution of digital goods may have offsetting demand implications for legitimate sales of complementary non-digital products. We examine the negative impact of file-sharing on recorded music sales and offsetting implications for live concert performances. We find that file-sharing reduces album sales but increases live performance revenues for small artists, perhaps through increased awareness. The impact on live performance revenues for large, well-known artists is negligible.

The article is Mortimer, Nosko, and Sorensen, Supply Responses to Digital Distribution: Recorded Music and Live Performances (October 2010). NBER Working Paper Series, No. w16507.

I would have expected a positive effect for bigger bands as well, but I guess you can't win 'em all.

This Week in Luxembourg

There are a number of Grand Chamber judgements this week:

In Mediaprint, the Court held that adding a prize competition to a newspaper is not an "unfair commerical practice" under Directive 2005/29, meaning that Austria is not allowed to ban it. For fun, consider the general definition of art. 5(2)(b): "A commercial practice shall be unfair if (...) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers." Wow...

[UPDATE: ECJBlog.com has a post on this case.]

In a more reasonable area of concern for consumer welfare, the Grand Chamber held that an MS court must examine of its own motion whether an exclusive territorial jurisdiction provision in a consumer contract is unfair in the sense of Directive 93/13. Also interesting, the judgement says that it is OK for MS law to require a notification to the Justice Ministry when a court asks a prejudicial question, and it briefly discusses the division of labour between the ECJ and the MS court when it comes to deciding which contract terms are "unfair". (par. 36-44) VB Pénzügyi Lízing Zrt. v. Schneider.

In the joined cases Volker und Markus Schecke and Hartmut Eifert, the Grand Chamber follows AG Sharpston and declares that some of the transparency provisions of the European Agricultural Guarantee Fund go too far and violate recipients' right to privacy. While the Court actually goes a little further in declaring provisions invalid than the AG did, it does see fit to limit the potential fallout by restricting the temporal effect of the judgement, and clarifying the obligations of various EU and MS officials. Cf. EUObserver.

In the difficult Kurkish Separatist sympathisers Asylum case, the Grand Chamber follows AG Mengozzi (NL, DE, FR) on question 1, 2 and 4, saying thatalleged terrorist sympathisers have to be judged on a case by case basis, that continued present danger is not required for exclusion from refugee status and that the MS may offer asylum when Directive 2004/83 does not require it. However, the Court disagrees on the question of proportionality. The MS does not have to examine whether exclusion is proportionate. Germany v. B and D.


In other news, there is:

Commission v. Portugal, where the First Chamber held that Portugal's Golden Share, or rather the rights connected to that share, in Energias de Portugal was in violation of the free movement of capital.

In Dita Danosa v. LKB Lizings SIA, the Second Chamber considered the possibility that a member of the board of directors of a capital company might be a worker in the sens of art. 10 of Directive 92/85, which forbids the dismissal of workers while they are pregnant or on maternity leave. The ultimate answer will have to wait until the Latvian court rules.

The Second Chamber also has a case about biopatents, but I'm not even going to pretend to understand what that is about. Hogan Lovells v. Bayer.

AG Mengozzi has an opinion about the French system for (complementary) health insurance in light of the EU's competition laws, including the law on Services of General Interest. Despite the fact that it involves employers being obligated to buy such insurance, the AG finds the system in conformity with the Treaties. Given precedents such as Albany (1999), that makes sense. AG2R Prévoyance v. Beaudout (DE, FR)

Also this week, the Commission fined various air cargo carriers a total of € 799 million for price fixing. The biggest bite, € 340 million, is for AirFrance/KLM. Cf. Press Release.

P.S. The archive of these emails is here.

Khodorkovsky

I already read Mikhail Khodorkovsky's speech in court last week in Dutch translation, but now it's finally become available in English translation as well, courtesy of The New Republic:

I can recall October 2003. My last day as a free man. Several weeks after my arrest, I was informed that President Putin had decided: I was going to have to "slurp gruel" for eight years.

It was had to believe that back then.

Judging by the prosecutors’ presentation: “give them 14 years” and “spit on previous court decisions”, over these years they have begun to fear me more, and to respect the law even less.

The first time around, they at least went through the effort of first repealing the judicial acts that stood in their way. Now they’ll just leave them be; especially since they would need to repeal not two, but more than 60 decisions.

I do not want to return to the legal side of the case at this time. Everybody who wanted to understand something has long since understood everything. Nobody is seriously waiting for an admission of guilt from me. It is hardly likely that somebody today would believe me if I were to say that I really did steal all the oil produced by my company.

But neither does anybody believe that an acquittal in the YUKOS case is possible in a Moscow court.

Notwithstanding, I want to talk to you about hope. Hope–the main thing in life.

I remember the end of the ’80s of the last century. I was 25 then. Our country was living on hope of freedom, hope that we would be able to achieve happiness for ourselves and for our children.

We lived on this hope. In some ways, it did materialize, in others it did not. The responsibility for why this hope was not realized all the way, and not for everybody, probably lies on our entire generation, myself included.

I remember too the end of the last decade and the beginning of the present, current one. By then I was 35. We were building the best oil company in Russia. We were putting up sports complexes and cultural centers, laying roads, and resurveying and developing dozens of new fields; we started development of the East Siberian reserves and were introducing new technologies. In short, we were doing all those things that Rosneft, which has taken possession of Yukos, is so proud of today.

Thanks to a significant increase in oil production, including as the result of our successes, the country was able to take advantage of a favorable oil situation. We felt hope that the period of convulsions and unrest was behind us at last, and that, in the conditions of stability that had been achieved with great effort and sacrifice, we would be able to peacefully build ourselves a new life, a great country.

Alas, this hope too has yet to be justified. Stability has come to look like stagnation. Society has stopped in its tracks. Although hope still lives. It lives on even here, in the Khamovnichesky courtroom, when I am already just this side of 50 years old.

With the coming of a new President (and more than two years have already passed since that time), hope appeared once again for many of my fellow citizens too. Hope that Russia would yet become a modern country with a developed civil society. Free from the arbitrary behavior of officials, free from corruption, free from unfairness and lawlessness.

It is clear that this can not happen all by itself, or in one day. But to pretend that we are developing, while in actuality, we are merely standing in one place or sliding backwards, even if it is behind the cloak of noble conservatism, is no longer possible.

Impossible and simply dangerous for the country.

It is not possible to reconcile oneself with the notion that people who call themselves patriots so tenaciously resist any change that impacts their feeding trough or ability to get away with anything. It is enough to recall art. 108 of the Code of Criminal Procedure of the Russian Federation arresting businessmen for filing of tax returns by bureaucrats.

And yet it is precisely the sabotage of reforms that is depriving our country of prospects.

This is not patriotism, but rather hypocrisy.

I am ashamed to see how certain persons in the past, respected by me are attempting to justify unchecked bureaucratic behavior and lawlessness. They exchange their reputation for a life of ease, privileges and sops.

Luckily, not all are like that, and there are ever more of the other kind.

It makes me proud to know that even after 7 years of persecutions, not a single one of the thousands of YUKOS employees has agreed to become a false witness, to sell their soul and conscience.

Dozens of people have personally experienced threats, have been cut off from family, and have been thrown in jail. Some have been tortured. But, even after losing their health and years of their lives, people have still kept the thing they deemed to be most important, human dignity.

Those who started this shameful case, Biryukov, Karimov and others, have contemptuously called us “entrepreneurs”, regarding us as low-lifes, capable of anything just to protect our prosperity and avoid prison.

The years have passed. So who are the low-lifes now? Who is it that have lied, tortured, and taken hostages, all for the sake of money and out of cowardice before their bosses.

And this they called “the sovereign’s business”!

Shameful. I am ashamed for my country.

I think all of us understand perfectly well the significance of our trial extends far beyond the scope of my fate and Platon’s, and even the fates of all those who have guiltlessly suffered in the course of the sweeping massacre of YUKOS, those I found myself unable to protect, but about whom I remember every day.

Let us ask ourselves: what must be going through the head of the entrepreneur, the high-level organizer of production, or simply any ordinary educated, creative person, looking today at our trial and knowing that its result is absolutely predictable?

The obvious conclusion a thinking person can make is chilling in its stark simplicity: the siloviki bureaucracy can do anything. There is no right of private property ownership. A person who collides with “the system” has no rights whatsoever.

Even though they are enshrined in the law, rights are not protected by the courts. Because the courts are either also afraid, or are themselves a part of “the system”. Should it come as a surprise to anyone then that thinking people do not aspire to self-realization here, in Russia?

Who is going to modernize the economy? Prosecutors? Policemen? Chekists? We already tried such a modernization it did not work. We were able to build a hydrogen bomb, and even a missile, but we still can not build our own good, modern television, our own inexpensive, competitive, modern automobile, our own modern mobile phone and a whole pile of other modern goods as well.

But then we have learned how to beautifully display others’ obsolete models produced in our country and an occasional creation of Russian inventors, which, if they ever do find a use, it will certainly be in some other country.

Whatever happened with last year’s presidential initiatives in the realm of industrial policy?

Have they been buried? They offer the real chance to kick the oil addiction.

Why? Because what the country needs is not one Korolev, and not one Sakharov under the protective wing of the all-powerful Beria and his million-strong armed host, but hundreds of thousands of “korolevs” and “sakharovs”, under the protection of fair and comprehensible laws and independent courts, which will give these laws life, and not just a place on a dusty shelf, as they did in their day with the Constitution of 1937.

Where are these “korolevs” and “sakharovs” today? Have they left the country? Are they preparing to leave? Have they once again gone off into internal emigration? Or taken cover amongst the grey bureaucrats in order not to fall under the steamroller of “the system”?

We can and must change this.

How is Moscow going to become the financial center of Eurasia if our prosecutors, “just like” 20 and 50 years ago, are directly and unambiguously calling in a public trial for the desire to increase the production and market capitalization of a private company to be ruled a criminally mercenary objective, for which a person ought to be locked up for 14 years? Under one sentence a company that paid more tax than anyone else, except Gazprom, but still underpaid taxes; and with the second sentence it’s obvious that there’s nothing to tax since the taxable item was stolen.

A country that tolerates a situation where the siloviki bureaucracy holds tens and even hundreds of thousands of talented entrepreneurs, managers, and ordinary people in jail in its own interests, instead of and together with criminals, this is a sick country.

A state that destroys its best companies, which are ready to become global champions; a country that holds its own citizens in contempt, trusting only the bureaucracy and the special services is a sick state.

Hope–the main engine of big reforms and transformations, the guarantor of their success. If hope fades, if it comes to be supplanted by profound disillusionment, who and what will be able to lead our Russia out of the new stagnation?

I will not be exaggerating if I say that millions of eyes throughout all of Russia and throughout the whole world are watching for the outcome of this trial.

They are watching with the hope that Russia will after all become a country of freedom and of the law, where the law will be above the bureaucratic official.

Where supporting opposition parties will cease being a cause for reprisals.

Where the special services will protect the people and the law, and not the bureaucracy from the people and the law.

Where human rights will no longer depend on the mood of the tsar. Good or evil. 4

Where, on the contrary, the power will truly be dependent on the citizens, and the court only on law and God. Call this conscience if you prefer.

I believe, this is how it will be.

I am not at all an ideal person, but I am a person with an idea. For me, as for anybody, it is hard to live in jail, and I do not want to die there.

But if I have to I will not hesitate. The things I believe in are worth dying for. I think I have proven this.

And you opponents? What do you believe in? That the bosses are always right? Do you believe in money? In the impunity of “the system”?

Your Honor!

There is much more than just the fates of two people in your hands. Right here and right now, the fate of every citizen of our country is being decided. Those who, on the streets of Moscow and Chita, Peter and Tomsk, and other cities and settlements, are not counting on becoming victims of police lawlessness, who have set up a business, built a house, achieved success and want to pass it on to their children, not to raiders in uniform, and finally, those who want to honorably carry out their duty for a fair wage, not expecting that they can be fired at any moment by corrupt bosses under just about any pretext.

This is not about me and Platon at any rate, not only about us. It is about hope for many citizens of Russia. About hope that tomorrow, the court will be able to protect their rights, if yet some other bureaucrats-officials get it into their head to brazenly and demonstratively violate these rights.

I know, there are people, I have named them in the trial, who want to keep us in jail. To keep us there forever! Indeed, they do not even conceal this, publicly reminding everyone about the existence of a “bottomless” case file.

They want to show: They are above the law, they will always accomplish whatever they might “think up." So far they have achieved the opposite: out of ordinary people they have created a symbol of the struggle with arbitrariness. But for them, a conviction is essential, so they would not become “scapegoats”.

I want to hope that the court will stand up to their psychological pressure. We all know through whom it will come.

I want an independent judiciary to become a reality and the norm in my country, I want the phrase from the Soviet times about “the most just court in the world” to stop sounding just as ironic today as they did back then. I want us not to leave the dangerous symbols of a totalitarian system as an inheritance for our children and grandchildren.

Everybody understands that your verdict in this case–whatever it will be–is going to become part of the history of Russia. Furthermore, it is going to form it for the future generation. All the names those of the prosecutors, and of the judges will remain in history, just like they have remained in history after the infamous Soviet trials.

Your Honor, I can imagine perfectly well that this must not be very easy at all for you perhaps even frightening and I wish you courage!

The Search for grounds for recusal

Quite unexpectedly, the Wilders case has reached the Supreme Court for the first time before the Court of First Instance has even ruled. Diederik Aben, one of the Advocates-General before the Supreme Court, made the supreme error of writing a note - not in his official capacity of course - about the correctness of the recusal decision taken by the recusal chamber on 22 October 2010. As one might expect, he does not think the decision was correct. In his 3-page note, he identifies a number of alleged errors, most importantly the fact that the Court of Appeals decision mandating prosecution is not open to review, least of all by the Court of First Instance. It follows, Aben argues, that the witness testimony that caused all that ruckus, prof. Jansen's testimony about his conversations with Appellate Judge Schalken, was irrelevant to the case at bar. It is difficult to see, Aben continues, how the decision not to hear Jansen would cause the defense to have "reasonable doubts" about the impartiality of the court. (Which, in any event, may not be the correct criterion.)

More interesting than the AG's opinion about this recusal decision, which is no more reviewable than the earlier CoA decision, is the fact that he apparently had the illusion that his note on the matter would not circulate beyond the limited group of acquaintances for which it was intended. How naive can you get?

CAP Reform - Poland Style

Here's an interesting news story: Poland is calling for "an overhaul of EU agricultural funding". I think we can all agree that that is an interesting move for a country that - off the top of my head - has more farmers than the entire rest of the EU put together.

[According to the CIA World Factbook, in Poland 17,4% of the labour force works in agriculture, for a total of 3 million people. For the EU as a whole, they have 5,6% and a total of 12,6 million. In other words, Poland represents about a quarter of the EU's farming population.]

Now basically there are two scenario's here: On the one hand, it is possible that the Peasant Party minister responsible spoke without fully appreciating what he was doing. After all, it is one thing for countries like the Netherlands and the UK to call for CAP reform, but for Poland to join them is an entirely different matter. Of course, joining them is hardly what he did, but it will be percieved that way all the same. (What he in fact did is demand that all the differences between the EU-15 and the new accession countries be abolished in this area.)

On the other hand, it is also possible that Poland decided it is worth the risk. They may have estimated that the votes for any serious budget cuts on CAP in the 2014-2020 period (which is what we're talking about here) are simply not there, and that there is some kind of deal to be made that benefits the farmers of Poland at the expense of their French counterparts. Part of this calculation may have been the French-German discussion paper on CAP reform published in September, which has a distinct market-oriented flavour. Needless to say, market oriented is not what you want to hear if you're Marek Sawicki. Even if the overall size of the CAP budget is not going to be changed, and if there is to be no national co-payments, Poland would still want to keep competitiveness out of agriculture. Quoth Wikipedia:

Agriculture employs 16.1% of the work force but contributes 3.8% to the gross domestic product (GDP), reflecting relatively low productivity. Unlike the industrial sector, Poland's agricultural sector remained largely in private hands during the decades of communist rule. Most of the former state farms are now leased to farmer tenants. Lack of credit is hampering efforts to sell former state farmland. Currently, Poland's 2 million private farms occupy 90% of all farmland and account for roughly the same percentage of total agricultural production. Farms are small—8 hectares on average—and often fragmented. Farms with an area exceeding 15 ha accounted for 9% of the total number of farms but cover 45% of total agricultural area. Over half of all farm households in Poland produce only for their own needs with little, if any, commercial sales.

Unsurprisingly, what Poland seem to want is as much as possible of a straight per-hectare payment.

Door gevaarlijke gekken omringd

Hardly a day goes by that I'm not reminded of the title of W.F. Hermans' Door Gevaarlijke Gekken Omringd, or - somewhat less poetically - in English: Surrounded by Dangerous Lunatics. Today, the most insane story I heard was the ruling of the Court of Appeals in The Hague, holding that it is still unlawful to remove squatters from their "homes" without a court order. Unlike the court of first instance, the appellate court found that the relevant provision of the Act on Squatting, which just entered into force, violated the ECHR's protection of the home. Unfortunately, the full judgement is not yet available, but the press release is.

First of all, how is this not a classic case of abuse of right? (Cf. art. 17 ECHR) These people simply hide behind the protection of the home to get away with stealing someone else's property. (Cf. art. 1 of Protocol 1)

Secondly, why not put them in jail? Art. 138a Sr, the new provision on squatting, is expressly included in the list of art. 67(1)(b) Sv of crimes that warrant detention pending trial despite the fact that the don't carry a penalty of at least 4 years. (Squatting carries a maximum sentence of a year in prison, though it will often be increased by a third under art. 138a(3) Sr when the crime is committed by two or more individuals working in concert. Adding in the aggravating factor of use of threats under art. 138a(2) Sr, the maximum penalty is 2 years + 1/3 * 2 years = 2 years and 8 months.) Just for clarity, Sr denotes the Penal Code and Sv refers to the Code of Criminal Procedure.

Of course, even when detention is theoretically authorised, it is not always possible. Under art. 67(3) Sv, it is only allowed when there are "serious concerns" about the defendant. But I would think - though the Dutch judiciary undoubtedly does not - that the fact that the defendant will undoubtedly re-offend once he walks out of the police station would qualify. Squatter gets arrested --> Squatter gets released pending trial --> Squatter goes back to his squat. How is that not a serious concern?

In the alternative, how hard can it be to find a few that qualify for the aggravating factor of art. 138a(2), the threat of violence or other manners to induce fear. It must be possible to round up a few particularly serious offenders, who would qualify for detention pending trial, and who could serve "pour encourager les autres".

Sigh...

Europe’s plot to take over the world

And, speaking of Gideon Rachman (see below), my favourite Gideon Rachman column is still "Europe's Plot to Take over the World", on the occasion of the G20 Summit in Pittsburg last year. Hopefull the FT won't mind if I quote somewhat liberally:

The realisation that the G20 is Europe’s Trojan horse struck me at the G20’s last summit in Pittsburgh a couple of weeks ago. The surroundings and atmosphere were strangely familiar. And then I understood; I was back in Brussels, and this was just a global version of a European Union summit.

It was the same drill and format. The leaders’ dinner the night before the summit; a day spent negotiating an impenetrable, jargon-stuffed communiqué; the setting-up of obscure working groups; the national briefing rooms for the post-summit press conferences.

All of these procedures are deeply familiar to European leaders – but rather new to the Asian and American leaders whom the Europeans are carefully entangling in this new structure. Watching an Indonesian delegate wandering, apparently carefree, through the conference centre in Pittsburgh, I felt a stab of pity. “You don’t know what you are getting into,” I thought. “You are going to waste the rest of your life talking about fish quotas.” (Or, this being the G20, carbon-emission quotas.)
(...)
As a result, the Europeans seemed much more tuned into what was going on than some of the other delegations. Puzzling over the new powers given to the IMF to monitor national economic policies in the Pittsburgh conclusions, I was interrupted by an old friend from the European Commission, who recognised the language immediately. “Ah yes,” she said, “the open method of co-ordination.”
(...)
Once the EU gets its teeth into an issue, it never really lets go. Processes started at EU summits – which often seem minor bits of bureaucratic paper-shuffling – often turn out to have important political implications, years later. The same could well be true of some of the decisions made in Pittsburgh – such as the language on tax havens and bankers’ bonuses.

From the very start, the EU advanced through small, apparently technical, steps focusing on economic issues – the so-called “Monnet method”. Monnet himself believed that Europe would be built through “the common management of common problems”. Is this so very different from President Barack Obama’s recent appeal for “global solutions to global problems”?

Of course, there is still a huge gap between the capabilities of the modern EU and those of the G20. There is no army of G20 civil servants to match the bureaucrats of Brussels. There is no body of G20 law and no G20 court to enforce the group’s decisions. Nor is there much immediate prospect that the US or China – both countries that zealously guard their sovereignty – will cede any serious powers to a G20 law-making body.

Yet the kernel of something new has been created. To understand its potential, it is worth going back to the Schuman Declaration of 1950, which started the process of European integration. “Europe,” it said, “will not be made all at once, or according to a single plan. It will be built through concrete achievements, which first create a de facto solidarity.”

The G20 now has some achievements and a burgeoning sense of solidarity between the members of this new, most exclusive, club. Who knows what comes next?

Of course, part of why I like this column is because it is such a happy message. And what about the G20 not having its own civil servants? Here's a blog post from Foreign Policy's blog discussing exactly that: Does the G20 need bureaucrats?