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)