Thursday, March 10, 2011

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.

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