Friday, December 10, 2010

This Week in Luxembourg

This week, the Grand Chamber ruled in a nice internet/Brussels I case: Which country has jurisdiction over a consumer contract agreed over the internet? It follows from art. 15(1)(c) of the Regulation that the key question is whether the defendant "directed" his activities to the consumer/plaintiff's Member State. If that is the case, the consumer can sue in his home MS. The answer is, obviously, highly fact-specific, but at the very least it is insufficient that the website is accessible in the consumer's MS, or that it is written in the consumer's native language. Joined cases Pammer and Hotel Alpenhof

In Competition Law & Procedure, the Grand Chamber held this week that National Competition Authorities (NCAs) have to be able to participate as defendants in judicial review proceedings against their decisions. Cf. art. 35 of Regulation 1/2003. In Belgium, where things are never that simple, only the Federal Minister for the Economy was entitled to act in that capacity. VEBIC v. Raad voor de Mededinging and Minister van Economie

In the same field, AG Mazák discussed the limits of the power of NCAs to find an infringement - or lack thereof - of the EU Competition rules. The Polish NCA in this case found no infringement of the Polish rules on abuse of dominance, but it was argued that it should have held that there was no infringement of art. 102 TFEU. The AG now agrees with the Polish NCA that this is not possible. Cf. art. 5 of Regulation 1/2003. Prezes Urzędu Ochrony Konkurencji i Konsumentów v. Tele2 Polska sp. zoo, now Netia SA w Warszawie

Following the Google AdWords ruling earlier this year, it is now eBay who are feeling the wrath of the trademark owners. For them, the issues are somewhat more complex, but AG Jääskinen's opinion seems to let them off the hook most of the time, in some cases because their use of the trademark in question is not "in relation to" the infringing goods, cf. art. 9(1)(a) of Regulation 40/94, and at other times because their use of the trademark in relation to the infringing goods does not have an adverse effect on the functions of the trade mark. L'Oréal et al. v. eBay.

The Dutch concept of a "kort geding"/expedited trial survived a challenge under Directive 89/665, the public works contracts directive. The idea was that a kort geding combined with a later full procedure did not conform with the directive's requirement that there should be an effective system of judicial review for awards of public contracts. This argument was now rejected by the Second Chamber. (In case the later procedure finds an infringement, the disadvantaged party has to be compensated somehow, of course, but that's not a fundamental problem for the entire system.) Combinatie Spijker Infrabouw (NL, DE, FR)

In a decision that is sure to please the PVV, the Second Chamber also held that - under the famous standstill rule of art. 13 of Decision 1/80 of the EU-Turkey Association Council (p. 155/168 here) - the Netherlands may not tighten a rule that they had earlier relaxed, even when the net result is a rule that is still more relaxed than it was in 1980. Staatssecretaris van Justitie v. Toprak and Oguz

An Austrian rule forbidding the importation of blood products that have been paid for, even if the payment was only for costs incurred, was found to be in violation of the free movement of goods. Humanplasma

Apparently, the EU has a directive on zoos. (Not on the trading of zoo animals, but on the actual running and licensing of zoos.) Spain now received a slap on the wrist because some of its autonomous regions did not obey the rules of said directive. I'm sure the zoo animals in Aragon, Asturias, the Baleares, the Canary Islands, Cantabria, Castilia y Léon, Extremadura and Galicia feel much better now that the European Commission is looking after their welfare. Commission v. Spain (FR)

AG Trstenjak has a fun case in motor vehicle accident litigation. In Portugal, someone's trying to get around the automatic apportionment of risk provided for in the Portuguese Civil Code by pointing at the EU Directives on compulsory insurance, Directives 72/166, 84/5 and 90/232. Since there is no evidence of either driver being at fault, Portuguese law apportions the risk - and the ensuing liability - evenly, and the AG offers the injured driver no help. Carvalho Ferreira Santos v. Companhia Europeia de Seguros (NL, DE, FR)

From the terrorism front, the latest news is that the General Court upheld the inclusion of Sofiane Fahas in the EU's own sanctions list. Quick bit of fun: one of the applicant's forms of order sought was that he asked the court to "order the Council not to refer to him in any of its future [sanctions] decisions (...) for so long as it is not established by a judicial decision (...) that he is a member of 'Al-Takfir' and of 'Al-Hijra' or that he otherwise supports terrorism". (par. 25) Much as all terrorism applicants would like such a remedy, the Court quickly shot it down (par. 28-30) Sofiane Fahas v. Council.

On Friday, Ryanair lost all eight of its attempts to get access to the Commission's state aid dossiers relating to eight different airports. As far as I know, this is one of the first times the General Court has applied Technische Glaswerke Ilmenau. As such, the applicant is asked to rebut the "general presumption" that disclosure would hurt the interests of effective investigation (par. 70-84), which they failed to do. Ryanair v. Commission

Last Week:

Italy is allowed to deny qualified lawyers the right to practice if they are also part-time public employees. Edyta Jakubowska v. Alessandro Maneggia. On the other hand, Hungary is not allowed to limit the sale of contact lenses to specialised medical supply shops, to the detriment of the plaintiff internet site. Ker-Optika v. ÀNTSZ Dél-dunántúli Regionális Intézete.

There are also to state aid appeals. In Holland Malt, an agricultural case where the aid was found to be incompatible, that holding was upheld on appeal. In Belgium v. Deutsche Post et al. (NL, DE, FR), a "serious difficulties" case, AG Jääskinen argued that the CFI should have held the case to be inadmissible, or, in the alternative, that the case should have been denied as being without merit. Subject here was the financial relationship between the state of Belgium and the Belgian Mail.

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

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