Thursday, June 03, 2010

This Week in Luxembourg

The Grand Chamber ruled in the Spanish pharmacies case, holding that the Spanish system of requiring them to be at least 250 m. away from each other and requiring them to service at least 2800 inhabitants each is generally acceptable, as long as adequate pharmaceutical services are guaranteed. The professional qualifications aspect of the licensing system, however, is not OK, since it discriminates against pharmacists who have not previously worked in Asturias.Blanco Pérez. (Cf. the opinion of AG Maduro, who was much more critical, and last years cases regarding Germanyand Italy.)

ECJ judgements:

The 2nd chamber ruled in the gloriously creative REIFEN case: Knowing how trademarks are turned into domain names under Council Regulation 733/2002, establishing the .eu top level domain, and under art. 11 of Commission Regulation 874/2004, the claimant got the Swedish authorities to accept &R&E&I&F&E&N& as a trademark, which he then used as a "prior right" in order to register The ECJ now fixes the problem in a way that the AG had not considered, by extending the reasons for finding bad faith beyond the grounds listed in art. 21(3) of Regulation 874/2004. Internetportal und Marketing.

In yet another installment of the betting industry's efforts to gain access to new markets via the ECJ, the second chamber has now upheld the Dutch regulatory system. Ladbrokes and Sporting Exchange. Particularly in Ladbrokes, both the questions (from the Hoge Raad) and the answers are highly informative. Cf. the opinion of AG Bot. In an earlier case, the ECJ already upheld the regulatory system for gambling in Portugal (GC), while being farily critical about Italyin a 2003 judgement. Swedish, German and Austrian cases are still pending.

In consumer protection law, specifically Directive 93/13 on unfair terms in consumer contracts, the first chamber ruled that the flexibility clause of art. 8 of the Directive, which states that the MS may adopt a higher level of consumer protection, also extends to art. 4(2) which rules out applying the directive to "the definition of the main subject matter of the contract [or] to the adequacy of the price and remuneration", "in so far as these terms are in plain intelligible language". So the Spanish law that allows even such provisions to be found unfair is compatible with the Directive. Caja de Ahorros y Monte de Piedad de Madrid.


AG Mengozzi had a case concerning refugees who had past ties to Kurdish separatist movements listed on the terrorism lists. How should art. 12(2) of Directive 2004/83 be applied in these circumstances? Do acts of terrorism qualify as "serious non-political crimes" or "acts contrary to the purposes and principles of the United Nations"? The AG argues that generally they do, that it is not necessary that the applicant continues to be dangerous, that the measure of excluding refugee status has to be proportionate and that Germany is entitled to offer them refugee status anyway. Germany v. B and D. (NL, DE, FR)

AG Trstenjak discusses a Greek law that imposes certain fines in the radio and television sectors jointly and severally on the company holding the license and on its shareholders (or at least those who control more than 2,5% of the shares). She finds that such a system is compatible with the relevant company law directive, Directive 68/151, but not with the freedom of establishment and the free movement of capital. While the latter makes sense, I won't claim to understand her argument as to the former. In any event, I think the Greek law is highly problematic from a free speech point of view. Idrima Tipou A.E.

In Commission v. France (NL, FR, DE), AG Mengozzi considers certain French rules regarding the ownership of biomechical laboratories, most importantly the rule that non-biologists may own no more than 25% of the shares in aSELARL active in this area. Drawing on case law regarding pharmacies (see above), he argues that this rule is justified under the law on the freedom of establishment. The rule that forbids an individual from owning shares in more than two such companies is not compatible with the Treaty, however.


On May 21, the enlarged third chamber of the General Court ruled in the France Télécom state aid case. In its decision 2006/621, the Commission had decided that "the shareholder loan granted by France to France Télécom in December 2002 in the form of a EUR 9 billion credit line constitutes state aid incompatible with the common market", though the aid did not have to be paid back. Both France, France Télécom and FT's competitors appealed, and the General Court now ruled that this loan was not a "transfer of resources". France v. Commission (FR)

Also of possible interest is this lengthy blog post on AdjudicatingEurope about the recent General Court standardisation/competition law case EMC Development.

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