This Week in Luxembourg

Among its last judgements before the summer vacation are the following:

The Fourth Chamber held against Anheuser-Busch in the latest installment of the Budweiser litigation. This time, the judgement was on appeal against a 2009 judgement of the CFI in Case T-191/07 Anheuser-Busch v. OHIM, which upheld OHIM's decision favouring the Czech brewery Budějovický Budvar. As it turns out, and despite Anheuser-Busch's best efforts to argue and prove the contrary, the Czechs really do have a valid prior claim, at least in the EU. Anheuser-Busch v. OHIM.

The Third Chamber reaffirmed that under no circumstances can a claim for non-contractual liability of the EU be heard before a national court. In this case, the insolvency administrator of Agenor SA, a Belgian company, wanted to sue the EU in Belgian court under a special section of the Belgian Code des sociétés, alleging that the Community de facto ran the company and was guilty of serious misconduct. However, this provious obviously does not transform the case into a contractual matter, so the ECJ continues to have sole jurisdiction. Hanssens-Ensch v. European Community.

In Commissioners for HM Revenue and Customs v. Isaac, the defendant got himself in a bit of trouble regarding the importation of bycicle parts from China, and particularly the payment (or rather: non-payment) of anti-dumping duties on these parts. The Third Chamber declines to help him out, either on the grounds that the parts in question are immediately sent to Germany, nor on the grounds that qualified for an exemption under art. 212a of the Customs Code.

Finally, there is Commission v. Italy, where Italy is found to have neglected to enact adequate legislation to implementRegulation 273/2004 and Regulation 111/2005 on drug precursors and the monitoring of their trade, respectively. This begs a simple question, of course: Since when do Regulations have to be transposed? Commission v. Italy (FR)

This Week in Luxembourg

The big Grand Chamber ruling this week is Monsanto Technology v. Cefetra, the case where Monsanto tried to get around the lack of any biopatents in Argentina by seeking an injunction in Dutch court against the importation of Argentinian soy meal with its patented gene in it. Following AG Mengozzi, the Court rules against Monsanto, holding that patent protection is not available "where [the gene] does not perform the function for which it was patented" (par. 50) Notice that the Argentinian government appeared as an intervenor, presumably to protect its legislative freedom.

ECJ judgements:

The First Chamber ruled that Portugal had overdone it in maintaining for itself certain "golden share" rights in Portugal Telecom. The Court particularly flagged the states continued veto power over changes in the articles of association (par. 59) and the possible negative effect of state vetoes over board decisions on the share price (par. 61).Portugal's reference to art. 295 EC (par. 63-64) and the justifications of safeguarding real comopetition (par. 70-71) and public security (par. 72-74) were, as was to be expected, of no avail. Commission v. Portugal.

In Sjöberg the Fourth Chamber again upheld the Member States' right to enact reasonable regulations on (internet) gambling. This time the case was from Sweden. As it happens, though, the Swedish system may be discriminatory towards foreign companies offering gambling services in Sweden.

The First Chamber had another Google AdWords case, Portakabin v. Primakabin. In this case, particular emphasis was placed on the position of the reseller specialising in certain trademarked goods, who "will have difficulty communicating such information to his potential customers without using that mark" (par. 90) Otherwise, the case followed the Grand Chamber's ruling from March.

General Court:

The Third Chamber ruled in the Ryanair/Aer Lingus merger cases, finding for the Commission both times. In Aer Lingus v. Commission, the General Court declined to order the divestment of the shares Ryanair alread owns in Aer Lingus. InRyanair v. Commission, the Court went over all the facts, finding no reason to overrule the Commission.

In Agrofert Holding v. Commission, the General Court (1st Chamber) annulled a Commission decision refusing access to the case file of a merger investigation.

In Freistaat Sachsen and Land Sachsen-Anhalt v. Commission, the 8th chamber considered a sum of state aid provided by those two Bundesländer in order to persuade DHL to build a brand new logistical hub in the area Leipzig/Halle. Strangely, at least to me, is that the Court (and the parties) seems to look at this almost entirely through the perspective of art. 87(3)(c), the general exception for poorer regions, instead of art. 87(2)(c), the special East-Germany provision.

Opinions:

The new AG Cruz Villalón again has an interesting opinion, this time about the European Arrest Warrant. He avoids the question of whether a warrant following an in absentia trial is a warrant for executing a sentence or not, and argues that in general the executing MS may demand that the accused should be allowed to serve any prison term in his home state. Presumably the Belgian courts were not thrilled about the idea of sending someone to Romanian prison, even if he was a Romanian citizen himself. I.B. v. Belgium (DE, FR, IT)

AG Trstenjak considered a Hungarian consumer protection law case, arguing that Directive 93/13 does not require a sua sponte investigation of the possible unfairness of the terms of a consumer contract. Based on last year's Pannonruling, the national court has to decide on the unfairness of the terms "where it has available to it the legal and factual elements necessary for that task" (par. 35). This does not mean, according to the AG, that national procedural law should allow the judge to order the production of evidence, etc. to settle the matter. VB Pénzügyi Lízing Zrt. (NL, DE,FR)

AG Sharpston has two opinions on the rights of Turkish workers. In both cases, she proposes an argument that favours the applicant. In Bozkurt, she says that a spouse can stay even after divorce, and in Pahlivan she argued that the applicant - who was entitled to live in the Netherlands with her parents - was able to acquire the rights stipulated by art. 7 of Decision 1/80, notwithstanding the fact that she got married to a Turkish national in Turkey in the meantime. (She continued to live with her parents in the Netherlands while married.)

In an awkward moment, AG Jääskinen proposed declaring all the prejudicial questions asked by the Corte suprema di cassazione in Italy inadmissible. Problems included - but were not limited to - the fact that there were insufficient facts provided to make an assessment, and tthat he connection between the case at bar and EU law was insufficiently clear. (par. 24-33) He then proceeded to discuss the first question anyway, just in case the Court should decide to declare it admissible. It deals with a law granting tax advantages to agricultural and production and workers’ cooperative societies. Paint Graphos (DE, FR, IT)

This Week in Luxembourg

In the area of Access to Documents law, the Grand Chamber disagreed this week with both AG Kokott and the Court of First Instance. In Technische Glaswerke Ilmenau it held that there is "a general presumption that disclosure of documents in the administrative file (...) undermines protection of the objectives of investigation activities" because it would undermine the ability and willingness of various parties involved to "express themselves freely". The applicant at first instance was a recipient of unlawful state aid.

Also in Access to Documents, the Grand Chamber overruled the CFI's decision to give the applicant, Bavarian Lager, access to the unredacted minutes of a Commission meeting, where the Commission was only prepared to provide the document with the names of certain individuals removed. (Again disagreeing with the AG.) The main problem here is the resolution of a clash between the Access to Documents Regulation and the Data Protection Reglation 45/2001. The ECJ notes that art. 4(1)(b) of the former explicitly refers to the latter, and deduces that privacy must win here.

Continuing the Commission's winning streak to an unprecedented 3/3, it also upheld the Commission's appeal inCommission v. Alrosa (CFI ruling here, AG Kokott's opinion favouring the appellant here), a merger case from the diamonds market, restoring the Commission's original decision. The CFI erred by applying the proportionality analysis of the Commission's refusal to accept Alrosa's commitments (art. 9 of Regulation 1/2003) with the wrong standard: the Commission's decision must be upheld unless it is manifestly erroneous. (par. 63-69).

In E and F, finally, the Grand Chamber considers yet another terrorism case, concluding that the organisation DHKP-C's inclusion on the terrorism list was unlawful prior to 29 June 2007, for failure to give reasons, meaning that such inclusion "can form no part of the basis for a criminal conviction linked to an alleged infringement of Regulation 2580/2001" (par. 62). The ECJ also considers whether certain financial transactions by and for the organisation fall within the ambit of the Regulation, finding that they do.

ECJ judgements:

In Sbarigia, the First Chamber declared the prejudicial question inadmissible on the grounds that the articles of the Treaty the Italian court was asking about were manifestly inapplicable to the case before it. AG Jääskinen had observed (par. 29) that the Court had used four types of solutions when it was presented with a purely internal matter. He preferred the kinder approach of simply replying that EU law did not forbid the national regulation (door no. 2, par. 31). The other two solutions are to leave it to the national court to decide whether the case is purely internal (par. 30) and to ignore the problem (par. 33).

Following the opinion of AG Mazák, the Second Chamber ruled that the General Court erred in law when it decided that the onus was on the applicant/appellant, Knauf Gips, to make clear to the Commission that it was not responsible for/answerable for the entire Knauf Group, or be estopped from making this argument before the Community Courts. (par. 87-92). In the words of Judge Arabadjiev, "such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence" (par. 91). Knauf Gips v. Commission.

The Fourth Chamber ruled in the Polish number portability case, holding that the telecoms regulator has to take into account the actual costs incurred by the operator when setting the charge for portability. Cf. art. 30(2) of Directive 2002/22. However, the regulator is allowed to set the charge for number portability below costs "when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility".Polska Telefonia Cyfrowa.

General Court:

The Sixth Chamber (extended) of the General Court tackled a difficult competition case in the area of pharmaceuticals and patents. The Commission had a problem with the way AstraZeneca handled the possibility of competition from generic products and parallel imports in Scandinavia. (Cf. Commission Decision.) Most of the Commission's Decision has now been upheld, but not all of it. The fines have been reduced from € 46 million to € € 40,25 million and from € 14 million to € 12,25 million. AstraZeneca v. Commission.

Italy lost an Altmark (= compensation for universal service obligations, etc.) case before the General Court. The preferential electricity rates it gave to steel manufacturer Terni were not justified by the nationalisation, in 1962, of Terni's hydoelectric plant. Compensation for such a "one-off" expropriation of assets has to be similarly "one-off". Italy v. Commission and ThyssenKrupp v. Commission.

In what I think is the first ruling on the bank bailouts, the Fifth Chamber upheld the Commission's finding that an Italian system of special "tax incentives" for restructured banks constituted unlawful state aid. (Cf. Commission Decision 2008/711.) BNP Paribas and BNL v. Commission.

The Fifth Chamber also upheld the Commission's Decision that there were no serious difficulties with the French Government's Decision to add € 150 million to the capital of France Télévisions. Joined Cases M6 v. Commission and TF1 v. Commission.

Opinions:

AG Kokott concluded that Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings covered only victims who were natural persons, i.e. not corporations. Eredics (DE, FR)

Also of possible interest is the WTO DSB's finding in the Airbus state aid case, which is here. They found that the aid given to Airbus was mostly against WTO rules.

Also, the European Commission has handed down a second massive cartel fine in as many weeks, following last weeks bathroom equipment manufacturers cartel. This week, the culprits are 17 steel manufacturers, who are fined for € 518 million. (Press Release) More than half of that sum is for ArcelorMittal, because this was their third offense, while the German company DWK Saarstahl gets away with no fine at all because it was the one that snitched. The total for Almunia now stands at about € 1,5 billion.