This Week in Luxembourg

AG Sharpston has a quite spectacular case on the intersection of reverse discrimination in free movement law and fundamental rights protection in EU Law post-Lisbon. The case concerns the rights of residence of an infant Union citizen and its third country national parents. The result is not unequivocally to the benefit of said child (no "fundamental" right to family life at the material time), but is interesting because it seems to divorce the right of residence from the underlying free movement right. (par. 67-122) Note also how she brings in the fundamental rights (par. 151-177). Ambitious... let's see what the Grand Chamber does.

In the conflict between the European Commission and Belgium about the financing of the European Schools, the ECJ now held that it does not have jurisdiction, since the Community is not a party to the 1957 Statute of the European School and the 1962 Protocol, which Belgium stood accused of having violated. In other words, the Commission will have to bring this case in Belgian court. Commission v. Belgium. (AG Mengozzi had argued that the ECJ only had jurisdiction after 2002.)

AG Kokott thinks that it is not fair to make women pay lower life assurance premiums, just because it so happens that they live longer. As a result, she concludes that art. 5(2) of Directive 2004/113, which makes an exception to the general equal treatment rules to make this possible, is invalid. Association Belge des Consommateurs Test-Achats and Others

AG Cruz Villalón considered an Austrian regulation which quite obviously violated Community law by requiring that the licensee already be established in Austria and that a new license be denied if it threatened the profitability of other licensees. The case concerned tourist busing services in Vienna. Yellow Cab Verkehrsbetriebs (DE, FR)

In the Polish VAT case of Oasis East, tax havens everywhere achieved a useful victory. Poland is not allowed to exclude them from the usual rules about international VAT.

Finally, there were two more terrorism cases before the General Court this week. In Al-Faqih et al. v. Council, the applicants, who are on the UN list as well as on the EU list, won on the grounds that their right to be heard and their right to effective judicial review had been violated. They are officially no longer terrorists. Also, Yassin Abdullah Kadi is back in Luxembourg. As before, the Court ordered him to be taken off the list. Even though the Commission provided a statement of reasons this time, they still infringed the rights of defence and the principle of effective judicial protection. Kadi v. Commission.

[UPDATE: ECJBlog.com has a post about this case, as does EJIL:Talk!.]

The archive of these emails is here.

King Abdullah on Jon Stewart

"Jordan: Between Iraq and a hard place"

I admit, it's a sad story of war & peace in the Middle East. Money quote, from the first part of the interview: "If there's no solution on the settlements issue before September 30 [when the current settlement freeze runs out], there'll be another war before the end of the year."

Also fun: Jon Stewart on the O'Reilly show

This Week in Luxembourg

There are only three judgements and two opinions this week, and the following seemed interesting to me:

This week's Grand Chamber judgement concerned an interesting access to documents problem. A public interest group, supported (of course) by Sweden, want access to the Commission's pleadings in a series of cases, including some that were still pending. (Technische Glaswerke Ilmenau was about the dossier, not the pleadings.) At what stage does the exception for court proceedings (art. 4(2)) no longer apply? The CFI said it applied until after the hearings, after which a specific examination of each document would have to be made. The ECJ now draws the line at the conclusion of the litigation. Sweden and API v. Commission

AG Jääskinen has an opinion in Alcoa Trasformazioni v. Commission, a state aid case where the applicant is complaining not (yet) about the decision finding certain aid incompatible, but rather the Commission's decision to initiate the formal investigation procedure (art. 108(2) TFEU). There is a question whether the (possibly) offending aid is new aid or an extension of existing aid, and whether that matters. In the end the AG agrees with the CFI that the aid in question is sufficiently "new" for the Commission to have acted correctly. The Italians lose.

Finally, there is an opinion about my old "baby", the Aarhus Convention. In the Netherlands, a number of 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) is now wondering whether this is "environmental information", and, if so, how Directive 2003/4 applies to this situation. AG Kokott answers "yes" to the first question, while rejecting the possibility of a blanket denial under "commercial secrets". Stichting Natuur en Milieu (NL, DE, FR)

The archive of these emails is here.

Why Judge Posner is Awesome

After his horse-meat ruling, yet another reason why Judge Posner is awesome. On the website of The New Republic (!) today he has a careful argument for stimulus that is essentially a toned down version of the familiar Krugman story (most recently this one), only this time coming from an avowed Republican.

This ability to actually think for himself explains, of course, why Judge Posner is arguably the second most famous American appelate judge never to make it to the Supreme Court. (Second only to Learned Hand. That other famous interbellum judge, Benjamin Cardozo, did ultimately spend six years on the Court.)

Wilders

In other news, today the Hoge Raad upheld the acquittal of Jonas Staal, who had been accused of threatening Geert Wilders by creating fake memorials for him, little places by the side of the road with flowers, candles and cuddly toys and pictures of the "deceased". Mr. Wilders, ever the champion of free speech, pressed charges, but the accused was acquitted by the court of first instance, the court of appeals and the Hoge Raad.

The key issue seems to be whether these communications could reasonably be interpreted as an actual threat, instead of "little works of art, intended to provoke discussion" as the defendant had claimed. To be precise, the legal analysis focuses on the intention to create fear in Mr. Wilders. It seems to have been uncontested that the defendant did not subjectively intend to creat such fear, but the prosecution argued that he "willingly and knowingly" accepted a significant risk that his work would be interpreted as a threat. (Which is the legal definition for constructive dolus, i.e. the place where culpa is so severe that it rises to the level of intent.) Given that the alleged threat was not communicated directly to the victim, but rather to the general public, and its relatively oblique nature, containing no specifics as to how and when the alleged threat was to be carried out, all three courts acquitted.

Court Press Statement (in Dutch), GeenStijl (in Dutch) and NRC on-line (also in Dutch).

Beware of Greeks Bearing Bonds

This has to be one of the coolest article titles ever. The actual article is pretty good as well. In many ways, it's a bit of a sequel to last year's Vanity Fair article about Iceland. (Only part of the Iceland article is still available for free online.)

Today in Le Monde

CERI's Christian Lequesne has an analysis of the uniquely intergovernmental perspective that president Sarkozy has towards the European Union, something that has only come to the forefront now that the French government and the European elite disagree in a manner that they haven't done since the stability and growth pact was widely ignored for the first time in 2005.

The key paragraph:

Pour Nicolas Sarkozy, l'Union européenne est une simple organisation
intergouvernementale menée par des grands Etats qui n'ont aucune leçon à
recevoir de la part d'institutions européennes composées de technocrates
irresponsables. Si les historiens ont souvent du mal à trouver une quelconque
trace d'héritage gaulliste chez l'actuel président français, l'agressivité
flamboyante à l'égard de la construction européenne en est peut-être la seule.
Ce constat ne signifie pas que Nicolas Sarkozy ait sur la scène européenne et
mondiale la même crédibilité que le général de Gaulle en son temps ; il faut
toujours comparer ce qui est comparable.

Let's hope that former Prime Minister De Villepin wil manage to launch a viable challenge to Sarkozy from the right, since the political climate is clearly not ripe for a socialist win in 2012.

(Social-Democrats have lost everywhere since the economic crisis began, and in France as in the Netherlands, Sweden and many other places, right-wing xenophobic identity politics seems to be getting traction.)

This Week in Luxembourg

Even though at its face it is yet another failed attempt to get out of a competition fine, this week's Akzo Nobel v. Commission contains some important remarks regarding legal professional privilige. The Grand Chamber repeats its earlier conclusion - from par. 24 of AM & S Europe v. Commission - that this privilige does not extend to in-house lawyers. Cf. Kartellblog.de

Lego again failed to get its design registered as a Community Trade Mark, given that the Grand Chamber rejected its appeal against the CFI's ruling in case T-270/06. The design of a Lego brick is not eligible for protection as a Trade Mark because "the sign consists exclusively of (...) the shape of goods which is necessary to obtain a technical result". (art. 7(1)(e)(ii) of Regulation 94/40) Lego Juris v. OHIM

Opinions:

The Commission finally took on its most feared opponents: the notaries. It looks as if those champions of the lobby have finally met their match in AG Cruz Villalón, who argues that the rule that exists in a number of MS which reserves the job of notary for citizens of that MS is not justified by the official authority exception of art.51 TFEU, because the restriction is not proportionate to, euh, something. He does make an exception for Portugal, and he also sides with the notaries on Directive 2005/36, which - of course - contains an exception for notaries, albeit in the recitals. Commission v. Belgium.

In General Química v. Commission, AG Mazák proposed upholding the appeal only on the point of who exactly is liable for the cartel fine in question. Only the subsidiary should be liable, he argues, relying on an earlier incarnation of Akzo Nobel v. Commission.

In Francesco Guarnieri & Cie v. Vandevelde Eddy VOF, AG Sharpston considers the cautio judicatum solvi, the obligation in certain circumstances to give security for costs. She seems less than enthusiastic, but comes out generally in support of the Belgian rule, given that the case in question concerns a non-EU plaintiff. (He is a Monegasque.) In a purely EU setting this obligation would certainly fall foul of art. 12 EC, but she AG argues that its effect on trade is too uncertain for it to be a measure having equivalent effect.

Surprisingly, AG Cruz Villalón sides with Anheuser-Busch in yet another BUD case. As far as I know, the Community Courts have always sided with the Czechs, but now the AG argues that there are serious problems with the CFI's findings of fact regarding the quantity and quality of use of the brand prior to registration. Anheuser-Busch v. Budejovicky Budvar.

In other beer news, there is also another installment in the Bavaria saga. Following last year's Bavaria and Bavaria Italy, AG Mazák now further clarifies the clash between trademark and PGI, given that 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 AG argues for the latter, to the obvious benefit of the Dutch. Cf. art. 14 ofRegulation 510/2006. Bayerische Brauerbund.

AG Jääskinen has an opinion on Belgian anti-tampering measures for two- or three-wheel vehicles, specifically those vehicles intended for use in competitions. Apparently, while EU law is generally symathetic to efforts aimed at stopping people from tuning up their mopeds, when a MS goes beyond the basic scope of Directive 2002/24, it starts to run into potential free movement trouble. Lahousse and Lavichy.

General Court:

In TF1 v. Commission, the applicant's action for annullment of the Commission's decision not to raise objections was declared inadmissible. The notable thing is that the General Court's argument was that the applicant had not shown that "its competitive position was substantially affected", which is in all likelihood true, but also a conclusion that comes very close to a decision on the merits. The case concerned an aid scheme for cinematographic and audivisual production.

In one of those cases that highlight an area of the law we don't normally realise exists, the Sixth Chamber annulled a decision by the Board of Appeals of the Community Plant Variety Office, which refused a plant variety right for the Gala Schnitzer apple variety. (The CPVO's initial decision had favoured the applicants.) Cf. Regulation 2100/94. The case isSchniga GmbH v. CPVO.

And finally, from Strasbourg and by popular demand: Sanoma Uitgevers v. The Netherlands. The Grand Chamber held that the manner in which the Prosecutor's office could demand the footage from an illegal street race without any need for a court order was a violation of the freedom of the press under art. 10 ECHR. The decision was unanimous, with the Dutch Judge Myjer writing separately only to explain why he changed his mind since the chamber judgement.

Kreun...

This Week in Luxembourg

On Wednesday, the Grand Chamber (Judge Schiemann) ruled in three German gambling cases, all concerning the German system of national monopolies for gambling under the 2004 Staatsvertrag zum Glücksspielwesen in Deutschland, a "treaty" between the Länder governing this area of the law. (Cf. this BBC story.)

·

In Winner Wetten, the court in Köln had already made all the findings of fact that would make the NRW-law in question unlawful under Gambelli, but was asking merely whether an exception to the principle of primacy might be made during the transition period created by a 2006 Constitutional Court ruling (English), which required the 2004 Staatsvertrag to be replaced with a new one. Unsurprisingly, the ECJ - like AG Bot - declined to create an exception to the principle of primacy.

·

In Markus Stoß, too, the referring courts (in Gießen and Stuttgart) expressed doubts about whether the legal limitations in question were "consistent and systematic". The Court gives guidance on this point, while reiterating that there is no duty of mutual recognition in this area. Note also the answer to part (i) of question 1: A MS does not need a justification that predates the offending law: as long as they have the evidence to back up their claims now, that is enough. (par. 70-72)

·	In Carmen Media, a case from Schleswig-Holstein, the referring court was more neutral in its questions, and focused only on art. 49 EC. The resulting guidance is - obviously - similar to that in Markus Stoß.

·	Finally, the Fourth Chamber, again with Judge Schiemann as rapporteur, ruled in the Austrian case ofEngelmann that an MS may not restrict concessions for gambling establishments to domestic operators, and must award them in a transparent and competitive procedure.

AG Cruz Villalón has an opinion that seems simple enough, but that has some interesting aspects all the same. The Slovak Republic had failed to recover certain unlawful state aid because it ran into trouble before its own courts. The Slovak courts refused to issue an order reinstating a tax debt that had previously been written off, because that settlement was part of a settlement decree with various creditors and thus had the force of res judicata. After careful consideration, the AG concludes that Slovak law ought to allow for recovery in this situation anyway, the principle of legal certainty notwithstanding. Commission v. Slovakia.

AG Yves Bot has an opinion about the concept of "same acts" for the purposes of double jeopardy & European Arrest Warrants. (Cf. art. 3(2) of the Framework Decision) He claims for the European judiciary the right to decide what is or isn't a "same act" - i.e. he argues that it is an autonomous notion of Union law - and he argues that in the case at bar double jeopardy has not attached. Gaetano Mantello (NL, DE, FR)

AG Mengozzi, in applying Directive 84/450, as modified by Directive 97/55, defends a supermarket's right to say that its products are cheaper than those of its competitors, assuming of course "a sufficient level of interchangeability" between the products in question. In other words, the products do not have to be identical for them to be compared. Lidl v. Vierzon (NL, DE, FR)

AG Mazák explains that a contract is a concession agreement under Directive 2004/18 whenever the payment for services rendered is not made directly by the government or any organisation connected to it. The case concerned emergency medical services in Bavaria. (Cf. last year's Eurawasser for a similar problem.) Privater Rettungsdienst und Krankentransport Stadler (NL, DE, FR)

In the General Court the Council lost a Dutch terrorism-asset freezing case brought by the Al-Aqsa foundation, because the national basis for the European decision had been repealed years ago. Basically it's a procedural mess. (par. 148-184) Al-Aqsa v. Council.

Also, there are some competition cases, such as Tomra Systems, whose fine of € 24 million for abuse of dominance (exclusivity agreements, quantity commitments and loyalty rebates) was upheld against mostly fact-based challenges and Deltafina v. Commission, whose cartel fine of € 11.800.000 was reduced to € 6.120.000 because the Court determined that there was insufficient proof for the Commission's claim that Deltafina had acted as the leader of the cartel.

In other news from the General Court, the Commission was ordered to raise objections against a British decision to change the exemption for Northern Ireland from an environmental tax. The Fifth Chamber agreed with the applicants that the Commission's investigation was insufficient to establish that this tax discrimination would not lead to state aid issues. British Aggregates Association v. Commission.

Switzerland lost a claim against the Commission (standing in for Germany and the Landkreis Waldshut, who appeared as intervenors) under the Agreement on Air Transport of 1999. The Commission had authorised Germany underRegulation 2408/92, which applied to Switzerland under art. 18(2) of the Agreement, to restrict to some extent the approaches to Zurich Airport for noise reasons. The most important objection was that Germany's actions were discriminatory in that they treated Zurich differently from comparable German airports. Switzerland v. Commission (NL,DE, FR)

Then there are two cases about so-called "orphan medical products", i.e. medicine for rare diseases. (Cf. art. 3(1) ofRegulation 141/2000). In both cases, the decision declining to designate the product in question an orphan medical product was upheld by the General Court. CSL Behring v. Commission and EMA and Now Pharm v. Commission (DE,FR)

This Week in Luxembourg

Among the first new judgements after the summer vacation are the following:

In Commission v. Scott, the First Chamber sided with the Commission and overruled the General Court's ruling. The case concerned a French state aid problem, where the City of Orléans had sold a piece of land below cost as a location for a factory. The Commission found this aid unlawful, but the CFI disagreed with the method used to calculate the true value of the land. The ECJ now disagrees and - more importantly - it holds that the CFI exceeded its jurisdiction by substituting its assessment of the facts for the Commission's to the extent that it did. The case is referred back to the General Court.

In a second appeal, the Commission did not get its way. In its decision 2002/753, the Commission found that the compensation given to Deutsche Post for its universal service obligation was too high. Thge CFI, applying Altmark, found that the Commission had failed to take into account the costs associated with DP's USO, and annulled. The ECJ now finds that the CFI correctly applied the Court's case law; in this case the CFI did not exceed its jurisdiction.Commission v. Deutsche Post.

After having delivered his opinion in the Deutsche Telekom appeal in April, AG Mazák now published his opinion in a similar case coming from Sweden. In this case, it is TeliaSonera who are being accused of applying a margin squeeze. The AG's answers to the 10 (!) questions posed by the Swedish court are in line with his earlier assessment, as they would be given that the ECJ is yet to rule in Deutsche Telekom. In other words, he proposes that TeliaSonera should lose. I have a draft paper on SSRN with some further background on this issue. Konkurrensverket v. TeliaSonera AB.

Is Germany entitled to give free legal aid to legal persons only if there is a "public interest"? AG Mengozzi concludes that, while there is no general principle making this unlawful, it might be depending on the circumstances, etc.. This is an EU law matter because of Directive 2003/8, which establishes minimum common rules relating to legal aid in cross-border disputes. It is left as an exercise for the reader to see whether the dispute at issue here is actually cross-border, and whether anyone has considered that question. DEB Deutsche Energiehandels- und Beratungsgesellschaft (NL, DE,FR)

AG Bot, finally, considers an appeal against an order by the CFI finding the action moot, since the Commission had withdrawn the contested decision, replacing it with this one. (Full history: CFI order 1, ECJ ruling, CFI order.) The AG concludes that a decision declining to act may not be revoked following a ruling condemning the Commission for failure to act, since such a revocation would allow the Commission to persist in its inaction. The case concerns alleged state aid in the Greek casino privatisation mess. Athinaïki Techniki v. Commission.