Thursday, February 17, 2011

This Week in Luxembourg

In a short but sweet follow up to last year's Deutsche Telekom margin squeeze judgement, the First Chamber ruled in Konkurrensverket v. TeliaSonera Sverige this week. In its conclusions, the Court lists a number of factors that are or are not relevant to the abusive nature of the putative margin squeeze. As a matter of policy, I'm still not convinced that the current approach is correct, though...

The conlusion in Werynski is simple enough that quoting it will suffice: Art. 14 and 18 of Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters must be interpreted as meaning that a requesting court is not obliged to pay an advance to the requested court for the expenses of a witness or to reimburse the expenses paid to the witness examined.

In telecom law, there were some issues regarding phone books. In The Number Ltd and Conduit Enterprises Ltd v. OFCOM, the 3rd Chamber held that art. 5 of Directive 2002/22 (the Universal Service Directive) does not allow OFCOM to make BT provide its full OSIS database of all landlines - its own and those of other telecom companies - to all comers. In Deutsche Telekom v. Germany (NL, DE, FR), AG Trstenjak signs off on the German system for directory assistance, with the proviso that the assignment of obligations must not be used to fix an abuse of dominance problem, since that would be détournement de pouvoir.

In her opinion in Dias, AG Trstenjak shows how to do the sums of the Citizenship Directive, Directive 2004/38, in order to calculate whether someone has acquired a right of permanent residence.

AG Mengozzi has two opinions in the appeals in the monochloroacetic acid cartel case. In both cases, he argues that the appeal should be rejected. I could have overlooked something, but I didn't notice any particularly novel arguments. Arkema v. Commission (NL, DE, FR) and Elf Aquitaine v. Commission (DE, FR)

AG Cruz Villalón takes a look at some air traffic noise issues, and concludes that Belgium was entitled to do what it did. The Belgian Decree under attack was not an "operating restriction" in the sense of Directive 2002/30, since it made operation more difficult for the plaintiff, but not impossible. According to the AG, the fact that the Decree required the aircraft's noise to be measured from the ground was also not a problem, art. 4(4) of the Directive notwithstanding. European Air Transport v. Collège d'Environnement de la Région Bruxelles-Capitale

In the world of football, the General Court decided in favour of the UK and Belgium in their dispute with UEFA and FIFA over which matches qualifiy as being "of major importance" under art. 3a of Directive 89/552, as inserted by Directive 97/36. As a result, MS are entitled to block all European and World Cup matches from being sold to subscription channels. I'm not sure why these cases weren't joined, but they were adjudicated by the same panel, with the same judge-rapporteur. (Judge Forwood in the 7th Chamber.) UEFA v. Commission, FIFA v. Commission and FIFA v. Commission. Cf.

Last week, the court rejected an appeal in the Nintendo cartel/abuse of dominance case, and AG Sharpston had some fun working out the implications of ECHR fair trial jurisprudence for the General Court's review of the Commission's cartel decisions (par. 60-83), before concluding that it
doesn't really count as a separate ground of appeal and that none of the appellant's real arguments should succeed. KME Germany and others v. Commission.

Also last week, the ECJ decided that the Netherlands is allowed to require work permits for the hiring out of workers from the new Member States during the transition period. Vicoplus and other v. Minister of SZW.

AG Bot had an opinion on GMOs, specifically the "unintended and accidental presence in [honey] of pollen from genetically modified plants which are no longer capable of reproducing". He argues that such pollen are not themselves "organisms" within the meaning of Regulation 1829/2003, but that their presence in honey does trigger all sorts of other unpleasantness under that directive. Bablock and Others (NL, DE, FR)

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

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