Thursday, September 16, 2010

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.

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


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.

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