Thursday, November 11, 2010

This Week in Luxembourg

There are a number of Grand Chamber judgements this week:

In Mediaprint, the Court held that adding a prize competition to a newspaper is not an "unfair commerical practice" under Directive 2005/29, meaning that Austria is not allowed to ban it. For fun, consider the general definition of art. 5(2)(b): "A commercial practice shall be unfair if (...) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers." Wow...

[UPDATE: has a post on this case.]
In a more reasonable area of concern for consumer welfare, the Grand Chamber held that an MS court must examine of its own motion whether an exclusive territorial jurisdiction provision in a consumer contract is unfair in the sense of Directive 93/13. Also interesting, the judgement says that it is OK for MS law to require a notification to the Justice Ministry when a court asks a prejudicial question, and it briefly discusses the division of labour between the ECJ and the MS court when it comes to deciding which contract terms are "unfair". (par. 36-44) VB Pénzügyi Lízing Zrt. v. Schneider.

In the joined cases Volker und Markus Schecke and Hartmut Eifert, the Grand Chamber follows AG Sharpston and declares that some of the transparency provisions of the European Agricultural Guarantee Fund go too far and violate recipients' right to privacy. While the Court actually goes a little further in declaring provisions invalid than the AG did, it does see fit to limit the potential fallout by restricting the temporal effect of the judgement, and clarifying the obligations of various EU and MS officials. Cf. EUObserver.

In the difficult Kurkish Separatist sympathisers Asylum case, the Grand Chamber follows AG Mengozzi (NL, DE, FR) on question 1, 2 and 4, saying thatalleged terrorist sympathisers have to be judged on a case by case basis, that continued present danger is not required for exclusion from refugee status and that the MS may offer asylum when Directive 2004/83 does not require it. However, the Court disagrees on the question of proportionality. The MS does not have to examine whether exclusion is proportionate. Germany v. B and D.

In other news, there is:

Commission v. Portugal, where the First Chamber held that Portugal's Golden Share, or rather the rights connected to that share, in Energias de Portugal was in violation of the free movement of capital.

In Dita Danosa v. LKB Lizings SIA, the Second Chamber considered the possibility that a member of the board of directors of a capital company might be a worker in the sens of art. 10 of Directive 92/85, which forbids the dismissal of workers while they are pregnant or on maternity leave. The ultimate answer will have to wait until the Latvian court rules.

The Second Chamber also has a case about biopatents, but I'm not even going to pretend to understand what that is about. Hogan Lovells v. Bayer.

AG Mengozzi has an opinion about the French system for (complementary) health insurance in light of the EU's competition laws, including the law on Services of General Interest. Despite the fact that it involves employers being obligated to buy such insurance, the AG finds the system in conformity with the Treaties. Given precedents such as Albany (1999), that makes sense. AG2R Prévoyance v. Beaudout (DE, FR)

Also this week, the Commission fined various air cargo carriers a total of € 799 million for price fixing. The biggest bite, € 340 million, is for AirFrance/KLM. Cf. Press Release.

P.S. The archive of these emails is here.

No comments: