This Week in Luxembourg

The Grand Chamber ruled in the first polluter pays case under Directive 2004/35, the ERG cases. The rulings largely track the answers proposed by AG Kokott in October, while occasionally adding some nuance, for example that the national court might find applicability ratione temporis of the directive, which the AG had ruled out, or that a somewhat stronger showing of causation is necessary. (Case C-378/08 and joined cases 379/08 and 380/08.)

The Grand Chamber also found against Germany in infringement proceedings based on art. 28(1) of the data protectiondirective 95/46. Contrary to the requirement of the directive, the state (= Land) supervisory agencies were not completely independent from the state. Commission v. Germany.

The Third Chamber found a (relatively) new Italian rule setting a minimum distance between petrol stations an infringement of the freedom of establishment (art. 49 TFEU). From a procedure point of view, note the potential mootness problem caused by the fact that the relevant law is no longer in force (par. 26-31). Attanasio Group Srl v Comune di Carbognano.

In Wood Floor Solutions, the Third Chamber gave guidance regarding art. 5(1) of the Brussels I Regulation. The Court found no difference between its existing case law regarding contracts to be performed in a number of different places within a single MS, and the case at bar where performance was in a number of different MS. The result is not very helpful, given the objective of predictability, since it means the defendant can be sued at "the place of the main provision of services", wherever that is. (cf. par. 40 and 41).

The Third Chamber also ruled in a telecommunications case, where the Polish authorities wanted to go after Telekomunikacja Polska for allegdly illegal bundling. The ECJ ruled that the Polish approach was consistent with the relevant telecom directive, Directive 2002/20, but that it fell foul of a directive that the referring judge had not mentioned,Directive 2005/29 on unfair b2c commercial practices. Under the latter directive, Poland is not allowed to impose a blanket ban on combined offers. Telekomunikacja Polska v. Prezes Urzędu Komunikacji Elektronicznej.

The Fourth Chamber considered the problem of a national court asked to order the recovery of state aid when the Commission Decision that declared the aid to be compatible with the Common Market (even though it had not been notified), had been annulled by the Community Courts, but the Commission had not yet taken a new Decision. In those circumstances, the ECJ ruled, the national court has to proceed with the recovery, instead of waiting for the Commission (and the Community Courts) to make up their minds. CELF v. SIDE

AG Mengozzi wrote a rare opinion about the protection of biotech patents under Directive 98/44. Monsanto tried to use its European patent to block the importation of soy meal from Argentina, where its invention was not defended by any intellectual property right. The AG proposes that the patent only extends to the time when the gene sequence "functions" as described in the patent, meaning that Monsanto should lose. He also argues that the directive aims at full harmonisation. Monsanto v. Cefetra (Dutch, German, French)

AG Jääskinen wrote about Italian pharmacy regulation, arguing that Italy is free under EU law to restrict their opening hours. Sbarigia v. Azienda USL RM/A. (Dutch, German, French)