This Week in Luxembourg

This week, the Grand Chamber brings us yet another BUD/Budweiser judgement. Just like the AG, they side with the Americans this time, concluding that the General Court erred in the manner in which it looked at the extent of prior use. (Cf. par. 169 for a summary.) Anheuser-Busch v. Budejovicky Budvar. Some other Bud: this opinion from 2009, this CFI judgement from 2009, this ECJ judgement from last July, and this opinion from last month.

The Grand Chamber also dismissed two appeals in steel cartel cases. I’m not entirely sure why this came before the Grand Chamber, though I suspect it may have something to do with the difficulty of imposing a fine in 2006 that was based at least in part on a Treaty that hasn’t been in force since 2002. (Then again, that issue was only brought up in one of the cases.) ArcelorMittal v. Commission and ThyssenKrupp v. Commission

Greece was ordered to pay a lump sum fine of € 3 million for failure to comply with the Court’s ruling in case C-26/07. Given that Greece finally complied with the judgement on 18 December 2009, there was no need for a penalty payment. Commission v. Greece. By the way, here’s a fun question: What if there’s a dispute about the Commission’s decision to claim such a penalty payment? Or about whether any payment is forfeit at all? Where do you take such a dispute? As it turns out, the General Court has jurisdiction to hear such a case. In Portugal v. Commission, it sided with the MS against the Commission.

For the second time in as many months, the General Court annulled a vacancy notice because it wasn’t published in Italian. In this case, the culprit is the Economic and Social Committee. Italy v. EESC

AG Jääskinen argues that Community trademark law does not allow a MS to take into account the hour and minute of registration in addition to the date of registration when deciding who has the prior claim. GENESIS (NL, DE, FR)

AG Cruz Vilalón has an opinion about online torts under Regulation 44/2001. As so often, the result is a multiplicity of possible fora. Also, the AG argues, art. 3 of the e-commerce Directive 2000/31does not apply to clash of laws issues. In other words, if you have been wronged on the internet, you can sue just about anywhere, and it’s anybody’s guess which country’s laws will be applied to your case. Joined Cases C-509/09 and C161/10, eDate v. X and Martinez v. Société MGN Limited (DE, FR)

AG Mengozzi has two opinions on supplementary protection certificates for medicinal products. I beg the reader’s forgiveness if I leave the analysis of his argument as an exercise for the reader. Synthon v. Merz Pharma and Generics (UK) v. Synaptech

AG Bot explained that under Directive 91/439 a Member State is allowed to refuse to recognize a driving license issued to someone who was not resident in the issuing state at the time when the license was issued. (In this case, Ms. Grasser lived in Germany and got her license in the Czech Republic.) Grasser v. Freistaat Bayern

AG Bot also went over a whole list of characteristics of the Austrian regulatory scheme for gambling, finding some of them defective but not others. Dickinger and Ömer (DE, FR)

Also in gambling: last week, the Dutch Council of State ruled in Betfair v. Minister of Justice (NL). The question was whether Betfair should have been given a license, and whether it needed a license in the first place. Given the ECJ’s answer to the prejudicial questions asked in this case, it was clear that Betfair did need a license. Applying the ECJ’s equal treatment and transparency guidance, the Council now concluded that Betfair should have been given the opportunity to compete for the (or a) license.

The archive of these emails is here.

Today in Luxembourg

Cataluña went a little too far with its supermarket licensing scheme. Apparently, you’re not allowed to be quite so restrictive in order to protect your corner shops against the Wallmarts of this world. Commission v. Spain Cf. bbc.co.uk

AG Jääskinen has another Google Adwords case, Interflora. His answers do not appear to be particularly earth-shattering, although this one might be worth pondering: “(3) The fact that the internet search engine operator does not permit trade mark proprietors in the relevant geographical area to block the selection of signs identical to their trade marks as keywords by other parties is as such immaterial in so far as the liability of the advertiser using of the keywords is concerned.” If the operator did allow such blocks, surely that would be relevant?

In the General Court, the most fun today was the case of Dover v. Parliament, where a crooked UK Tory former MEP was ordered to repay £ 345.289 in "unjustified" claims. Then again, it would have been even more fun if the original order of £ 538.000 had been upheld. Cf. bbc.co.uk

Then there was a whole stack of cases regarding the cartel in the market for copper and copper alloy fittings. (Cf. summary of Commission decision C(2006) 4180.) Almost all appeals were rejected, as usual. However, Aalberts was acquitted on the facts, Kaimer had its fine reduced on similar grounds, whereas in the Tomkins and Pegler cases there seem to have been some issues of attributabilty.

Also in the General Court, there was a state aid case regarding the airport of Leipzig/Halle. The case of the Länder of Saxony and Saxony-Anhalt was declared inadmissible for lack of an injury in fact. In the parallel case brought by the airport itself, the Commission’s decision was upheld, except to the amount of the aid in question. Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v. Commission (Cf. last year’s Freistaat Sachsen and Land Sachsen-Anhalt v Commission.)

For those who wanted to know: no you can’t register AK-47 as a brand. It doesn’t have sufficient distinctive power. Cybergun v. OHMI part 1 and part 2.

UPDATE: It appears I overlooked a few General Court rulings that were handed down on Tuesday:

In Access Info Europe v. Council, it was discovered that I need not have anonymised the legislative documents I used in my International Negotiations course. There, I did exactly what the Council also did: I left the positions in place but took out the names of the countries. (Unlike the Council, I replaced them with roman numerals.) The General Court now decided that the Council’s interest in protecting the freedom of manoeuvre of its members is insufficient to justify reliance on the internal decision making exception of Regulation 1049/2001. Ironically, the document in question was about the new version of that Regulation. By the way, here are all Council documents on that dossier.

Also in the General Court, the Commission lost a carbon trading case. (If memory serves, not for the first time.) The Court ruled that the Commission’s objections to Latvia’s National Allocation Plan were out of time. The problem wasn’t that the Commission can’t keep track of a 3 month limitation period, but rather that they had different ideas about when that period started. Note also par. 61 of the judgement, which explains why the conclusion is that the Commission’s decision should be annulled, rather than declared non-existent. Latvia v. Commission

Finally, in Altstoff Recycling Austria v. Commission (NL, DE, FR), the General Court decided not to mess with the conditions that the Commission had imposed as part of its approval of the Austrian system for the recycling of various containers. The applicants would have liked to have a negative clearance under art. 81(1) EC instead of an exemption under 81(3) EC, and if it had to be an exemption, then at least one without (these) restrictions, but no such luck.

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

This Week in Luxembourg

This week’s Grand Chamber case – Koelzsch v. Luxembourg – involves some fun litigation following an allegedly unlawful dismissal. The plaintiff already lost in German and Luxembourg courts, on jurisdictional and merits grounds, respectively, and now he’s suing the state of Luxembourg for maladministration of justice. In the end, the only question before the ECJ is where this lorry driver “habitually carried out his work” under art. 6(2)(a) of the Rome Convention, the answer being that it is where he “performs the greater part of his obligations towards his employer.”

Despite directive 72/166 and subsequent directives on civil liability & car accidents, Portugal is allowed to split the damage 50/50 if it is unclear to what extent each driver is at fault. Carvalho Ferreira Santos

Unusually, AG Jääskinen disagreed with the Commission in an infringement case. The latter had alleged that Slovakia had failed to fulfil its obligations under directive 2003/54 on the internal market for electricity by keeping in place a private law contract between its state electricity company and a Swiss company that predated accession, giving the Swiss preferential access to part of the network. The AG felt, “not without some hesitation”, that this contract is protected under the old art. 307(1) EC, and that Slovakia is allowed to keep the contract in place until it expires. Commission v. Slovakia

Also by AG Jääskinen, a win for copyright holders. The AG interprets Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission as allowing the rule identified by the (lower) Belgian court, which held that new authorisation was necessary for retransmission of digital television signals via an independent satellite. Airfield & Canal Digitaal (NL, DE, FR)

In news about Bulgarian lawyers, Gentcho Pavlov would like to be a trainee-attorney in Austria, but they won’t/wouldn’t let him. Even though Bulgaria is now part of the EU, he still needs an answer for the period of 2004-2006. So the question is whether art.38(1) of the Bulgarian association agreement had direct effect. AG Mengozzi argues that it did, but that this does not help mr. Pavlov. Pavlov and Famira (NL, DE, FR)

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

Carbon Trading

Well, it's good to know that the European Union's Carbon Trading scheme is at least working a little bit. Much as people may have legitimate grievances of over-allocation and other forms of excessive cuddling of carbon emitters, in the wake of the Japanese earthquake, carbon prices are behaving exactly as they should. From EUObserver:

European carbon prices hit a two-year high on Monday (14 March), as the region reassesses the future of its nuclear energy industry following events in Japan.

German Chancellor Angela Merkel said plans to extend the operating life of the country's nuclear plants would be suspended for at least three months, pending an inquiry into their safety, while Switzerland halted plans to build new reactors.

Carbon permits under the EU's emissions trading scheme, which Switzerland is set to join, rose 5.5 percent to close at €16.60 a tonne on the ICE Futures Europe exchange in London.

(...)

A German government decision to cancel nuclear extensions would result in an additional demand for 700 million tonnes of carbon through 2020, Heiko Siemann, an analyst for UniCredit said.

Wifi

From the country that already gave us legal downloading of copyrighted materials, we now have the legal borrowing of someone else's Wifi. Even if your neighbour's network has a password, it's still not illegal to hack into it in order to obtain free internet. After all, you're only hacking into the router, not into your neighbour's actual computer, and hacking into a router is not illegal under art. 138a of the Dutch Penal Code. And therefore, concludes the Court of Appeals in The Hague, while such "borrowing" may be socially undesirable, it is not currently made punishable by any provision in the Penal Code. (Though it may be an unlawful act under art. 6:162 Civil Code.)

And, just for the record, just like "borrowing" someone's bandwidth isn't punishable as hacking, it is also not punishable as theft. In a 2008 ruling, the Court of First Instance in Amsterdam already reached the fairly obvious conclusion that bandwidth is not a good - just like electricity isn't - and can therefore not be stolen.

UPDATE 2013: On 26 March 2013, the Dutch Supreme Court overturned the Court of Appeals' decision and held that a router can indeed be hacked even under the old version of the statute that was at issue here.

This Week in Luxembourg

The biggest case coming out of Luxembourg this week is the Opinion on the European and Community Patents Court. As it turns out, the Court has a serious problem with the agreement as it is currently proposed, the objection being that the new Patents Court would unlawfully usurp the power of the national courts in the EU legal order. For some reason that I don’t fully understand – undoubtedly because I haven’t studied the problem carefully enough – the precedent of the Benelux Court of Justice (cf. Case C-337/95 Parfums Christian Dior) doesn’t count. Cf. EUObserver

As so often, it is the Aarhus Convention gifting us with more multi-level governance fun this week. Art. 9 of the Convention extends the range of parties who can have standing to sue in certain environmental cases, with art. 9(3) acting as somewhat of a catch-all. The Grand Chamber was now asked whether that provision has direct effect. (It doesn’t.) However, before it could get there, the Court first had to explain why art. 9(3) is part of EU law in the first place, given that this treaty was concluded on the basis of joint competence. Lesoochranárske zoskupenie VLK

Also in the Grand Chamber, there’s this citizenship problem: Diego and Jessica are Belgian children of Columbian parents, living in Brussels with their father, Gerardo Ruiz Zambrano. Diego and Jessica have never lived anywhere else than in Belgium (i.e. never in any other MS.) Does Mr. Ruiz Zambrano have a right of residence in Belgium and a right to a work permit under EU law? The Grand Chamber says that he does, because otherwise Diego and Jessica would be precluded from genuinely enjoying the rights which art. 20 TFEU confers upon them. Gerardo Ruiz Zambrano

Here’s some innovation fun: Art. 11 of Directive 97/13 deals with fees for individual telecoms licenses. Under subsection 2, those fees have to “take into particular account the need to foster the development of innovative services (…)”. Does that mean that Spain may spend that money on whatever they like? And are they permitted to jack up the fee for a modern digital system while leaving the fee for the old, analogue system the same? Wouldn’t such decisions hurt innovation? Unfortunately for the plaintiff, the Third Chamber ruled that Spain was allowed to do as it did. Telefónica Móviles v. Administración del Estado

In tendering law, the Third Chamber gave some further guidance on the distinction between a “public service contract” and a “service concession” under Directive 2004/18. The fact that the ambulance service in Passau (Bavaria) is not paid for by the city of Passau, that there was some operating risk due to the uncertainty of having to negotiate about fees in the future, and the fact that full coverage of the costs was not assured was enough to make the contract for those services a service concession, not a public service contract. Privater Rettungsdienst und Krankentransport Stadler

In a second piece of Aarhus news, AG Kokott has an opinion on the first pillar of the Convention (the above Grand Chamber case, dealing with standing, concerns the third pillar). The AG explains how the various interests for and against transparency must be weighed in a given case. She argues that “individual adversely affected interests which, when taken individually would not be sufficient to outweigh the public interest served by disclosure [should] be cumulated and possibly together justify the confidential treatment of information.” So you can count different kinds of exceptions together. Ofcom v. The Information Commissioner

Apparently Greenpeace stands up for human beings as well as animals and plants. In Brüstle v. Greenpeace (NL, DE, FR), AG Bot gives some guidance about the various kinds of stem cells and embryos, and their respective patentability.

In Stichting de Thuiskopie v. Van der Lee, AG Jääskinen considered the problem of “fair compensation” of copyright holders for private copying. (Cf. Art. 5(2)(b) of Directive 2001/29 and the recent ECJ decision of Padawan.) Given that different MS have different systems in place, which system should be applied to online sales of writable media? The AG suggests that the MS need not create a single system, and that compensation has to be paid in the MS of the customer, unless it has already been paid “in the MS where the transaction takes place”, by which he presumably means the seller’s MS.

AG Kokott, finally, also has an opinion on bankruptcy law. She explains that the notion of the “centre of a debtor’s main interest” is an autonomous concept of Community law, and that art. 3(1) of Regulation 1346/2000 establishes a strong presumption that the centre is the MS of the company’s registered office. In the process, she also takes a shot at the Italian court for ignoring the Rheinmühlen/Elchinov rule (par. 24-33). Interedil (DE, FR)

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

This Week in Luxembourg

In conclusive evidence that the world has gone mad, the Grand Chamber only needed 7 pages to agree with AG Kokott that charging men and women different insurance premiums is unlawful gender discrimination under Directive 2004/113. In their defense, art. 5(1) of the Directive does actually suggest that (as does recital 18), but there would seem to be an opt-out possibility in art. 5(2). The Court now holds that an indefinite exemption would be cheating (par. 32-33), so it decided that until the end of next year is long enough (par. 34). Association belge des Consommateurs Test-Achats

The First Chamber ruled on 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 from what may well be considered a private company, it finds the system in conformity with the Treaties. Given precedents such as Albany (1999), that makes sense. AG2R Prévoyance v. Beaudout

The Third Chamber shared the concerns of the Commission about the vagueness of Belgium's transposition of art. 31 of Directive 2002/22, the Universal Service Directive, which deals with "must carry" obligations for cable companies. Commission v. Belgium

Here's one in the category "fun with access to documents law". The Commission lost a merger control case in the MyTravel/Airtours merger, case T-342/99. Afterwards, the Commission put together a working group to sort out the implications of that ruling. MyTravel asked for access to the documents of that WG, was denied, and won in part before the General Court, case T-403/05. Now Sweden (who else) appeals, because they want MyTravel to have access to the rest as well. In light of subsequent case law (API, Technische Glaswerke Ilmenau), AG Kokott says they should win. Sweden v. Commission

In the General Court, Siemens saw a € 396m cartel fine upheld in its entirety: Siemens v. Commission (DE, FR). However, in the other cases stemming from that same cartel (in the market for gas insulated switchgear projects), a number of other applicants did see their fines reduced: Siemens AG Austria et al. v. Commission (par. 65-72) and Areva and Alstom v. Commission

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

Door gevaarlijke gekken omringd Ia

Just to return briefly to the topic of the original Door Gevaarlijke Gekken Omringd, squatting, I am sad to report that the Court of Appeals in Amsterdam has followed much of the approach of the Court in The Hague that I criticesed earlier, and has similarly forbidden an eviction of squatters. Apparently, squatters have to be given sufficient advance notice of their eviction, so that they have time to challenge their eviction in court (remember, eviction is only possible if the owner of the building is going to do something useful with the building), and so that they have time to take care of their belongings. After all, God forbid the police should violate the squatters' art. 1P1 ECHR property rights...

The ruling - in Dutch of course - is here.

Door gevaarlijke gekken omringd II

Yet again, there is a court judgement that confirms that we're all doomed. This time, frankly, it is only half the court's fault, with the other half of the blame going to the European legislator.

What happened is that for some reason that nobody really understands, in November 2003 the Commission decided that it was unfair to charge different insurance premiums to men and women, even if it is because, say, women happen to live longer. They included an opt-out, but it was limited to six years after the transposition deadline. The European Parliament then conditioned the opt-out on difficulties with implementation, and limited it to four years, as they would. Fortunately, the Directive was proposed under the old art. 13(1) EC, meaning that the EP did not get a vote. That is why art. 5 of the Directive (art. 4 of the proposal) ended up looking as follows:

Article 5
Actuarial factors
1. Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals' premiums and benefits.
2. Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals' premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16, and shall forward the results of this review to the Commission.
3. In any event, costs related to pregnancy and maternity shall not result in differences in individuals' premiums and benefits.
Member States may defer implementation of the measures necessary to comply with this paragraph until two years after 21 December 2007 at the latest. In that case the Member States concerned shall immediately inform the Commission.

The problem with today's judgement in Association Belge des Consommateurs Test-Achats e.a. v. Conseil des ministres is not paragraph 3, the part where I have to subsidise women's pregnancy and maternity insurance. That is dumb enough in itself, but at least vaguely sensible from the point of view that we do not want to punish women unnecessarily for getting pregnant. Also, paragraph 3 at least has the merit of being categorically and clearly formulated. Paragraph 2, on the other hand, quite notably left the possibility of completely undoing paragraph 1, because the original 6 year deadline was omitted. Hence the question before the court: Is a Member State really allowed to rely on the exception of par. 2 indefinitely?

One might think that the answer to that question is quite simple. As a matter of statutory interpretation, it is clear that the Member States, as Masters of the Treaties as well as sole EU legislator in this area, deliberately deleted the deadline, and allowed themselves the possibility of an indefinite opt-out. On the other hand, it is also clear that the current paragraph 2 is formulated much more hesitantly than the original proposal, which stated simply that "Member States may defer implementation of the measures necessary to comply with paragraph 1 until [six years after date referred to in paragraph 1] at the latest", albeit with the usual reporting requirements.

In its infinite wisdom, though, the ECJ decided today that none of this kind of thinking matters. After all, the Treaty of Lisbon brought us the binding nature (cf. art. 6 TEU) of the EU Charter of Fundamental Rights, which includes among its many provisions the general right of non-discrimination (art. 21) and the right of equality between men and women (art. 23). And on that basis, the Grand Chamber of the European Court of Justice decided to restore, on its own authority, the deadline originally envisaged by the Commission. After the end of next year, the exemption of art. 5(2) of Directive 2004/113 will no longer be available:

30 It is not disputed that the purpose of Directive 2004/113 in the insurance services sector is, as is reflected in Article 5(1) of that directive, the application of unisex rules on premiums and benefits. Recital 18 to Directive 2004/113 expressly states that, in order to guarantee equal treatment between men and women, the use of sex as an actuarial factor must not result in differences in premiums and benefits for insured individuals. Recital 19 to that directive describes the option granted to Member States not to apply the rule of unisex premiums and benefits as an option to permit ‘exemptions’. Accordingly, Directive 2004/113 is based on the premiss that, for the purposes of applying the principle of equal treatment for men and women, enshrined in Articles 21 and 23 of the Charter, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable.

31 Accordingly, there is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for in Article 5(2) of Directive 2004/113, to persist indefinitely.

32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.

33 That provision must therefore be considered to be invalid upon the expiry of an appropriate transitional period.

34 In the light of the above, the answer to the first question is that Article 5(2) of Directive 2004/113 is invalid with effect from 21 December 2012.

Apparently, it is for the ECJ to decide what the appropriate balance of equities is here, just like it is for the ECJ to decide what constitutes "an appropriate transitional period". Never mind that this will involve a massive subsidy from women to men in the life assurance sector, and generally a distortion of the efficiency of the insurance industry. Never mind that it seems singularly unconscionable to force insurance companies to deliberately disregard relevant actuarial information. Never mind that the Council, the EU's only lawmaker in this area, already weighed all these factors and decided to strike a different balance. (By the way, note that under art. 19 TFEU this Directive would now have to be enacted under the consent procedure.) The Grand Chamber hath spoken, and so it will be.

It is important to realise that this case sets a dangerous precedent well beyond the insurance industry. It creates a very real risk of legislation by constitutional interpretation, as in the United States, a risk that is also posed by a number of recent ECtHR judgements. Cases like this take a normal matter of legislative discretion, where the lawmaker weighs the pros and cons of different alternatives in order to strike a balance that is fair given the circumstances at the time, and turn it into a question of human rights law, a question that by nature must have an answer that is absolute and valid for all ages. In Europe, we have been able to avoid having questions like abortion and same-sex marriage "resolved" by judicial command, and we should count ourselved fortunate for it. (Cf. last year's Strasbourg cases of A, B, and C v. Ireland on abortion and Schalk and Kopf v. Austria on SSM.) Fortunate, not only because the parliamentary route allows a much more legitimate public debate, but also fortunate because this way the answer is not forever cast in stone. Only recently there was somewhat of a debate again in the Netherlands about the number of weeks during which abortion should be available on demand, and it is only proper that such a question should be periodically revisited. The more we reach the technocratic details of sectoral regulation, as in today's insurance case, the less appropriate it is to make such reconsideration effectively impossible.

UPDATE: Here's an op-ed in EUObserver by the European Women's Lobby defending the judgement.