This Week in Luxembourg

In DHL Express France v. Chronopost, the Grand Chamber considered how “Community” the Community Trade Mark really is. (Cf. Regulation 40/94) If you have a judgement from a Community trade mark court finding an infringement of your trade mark, to what extent does that help you elsewhere in the EU? According to the Court, the first rule is that such a prohibition “extends, as a rule, to the entire area of the European Union”. After that, when it comes to the subject of enforcement through penalty payments and such like, things get more murky.

The Commission had an infringement/failure to transpose case declared inadmissible because they didn’t give Romania the opportunity to respond to their claim that Romania’s legislation was insufficient to transpose the relevant directive. Commission v. Romania

In Painer v. Standard VerlagsGmbH et al., the tragic case of Natascha Kampusch makes it all the way up to the European Court of Justice. The legal issue concerns the rights of the photographer who took a picture of the girl before she was kidnapped, a picture that was published all over the media when she disappeared, and again when she escaped. AG Trstenjak’s opinion is mostly unfavourable for the photographer: she probably won’t be able to sue all the offenders at once, and her rights under Directive 2001/29 were not violated, except her right to be identified as the author.

AG Bot provides a rule for when Turkish workers can be sent back to Turkey on the grounds that they have committed a crime: The person’s behaviour has to be a “current, real and sufficiently serious threat to a fundamental interest of society” (my translation). Cf. Decision 1/80 and art. 28(3)(a) of the Free Movement Directive 2004/38, which establishes the important cut-off of 10 years residence in the host MS, which the plaintiff here met. Nural Ziebell v. Land Baden Württemberg (NL, DE, FR)

In another Turkish case, AG Kokott explains that “the prohibition of abuse of rights is a general principle of EU law” (par 29). She concludes that that rule cannot be used to render the standstill clause of art. 41(1) Additional Protocol inoperative. Instead, she argues that the national court should examine what the consequences are of Mr. Oguz’s abuse of right for his position under national law, i.e. under the substantive rules that art. 41(1) aims at. Oguz v. Secretary of State for the Home Department

Also by AG Kokott: two enormous slapdowns of DG Comp. She proposes that two cartel fines against Solvay should be annulled on appeal. The Commission (and the CFI) unreasonably denied Solvay access to large parts of the dossier, never mind that they lost part of it, and the whole thing took way too long. (In both cases, the original Commission decision dates from 1990, and was replaced by a new one in 2000 after the first one was annulled.) A case is still pending before the ECtHR dealing with this same matter. Solvay v. Commission and Solvay v. Commission (NL, DE, FR)

Finally, AG Cruz Villalón has an opinion about peer-to-peer file exchange. He argues that the relevant provisions of EU copyright and internet law, as well as the EU Charter of fundamental rights, should be interpreted as denying the Belgian copyright organisation Sabam the right to sue to have such peer-to-peer networks shut down. Scarlet v. Sabam (FR)

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

This Week in Luxembourg

This may well be the first time the Services Directive is doing any real damage. (Or did I forget something?) From the Grand Chamber judgement in Société fiduciaire nationale d'expertise comptable v. Ministre du Budget, des Comptes publics et de la Fonction publique: “Article 24(1) [the Services Directive] must be interpreted as precluding national legislation which totally prohibits the members of a regulated profession, such as the profession of qualified accountant, from engaging in canvassing.”

Despite art. 34 TFEU and art. 3(2)(b) of the Community Customs Code, we are still allowed to discriminate against Monaco, at least in the area of procedural law. Francesco Guarnieri & Cie v. Vandevelde Edd VOF

Like the General Court before him, AG Jääskinen agrees with Gibraltar and the UK in their state aid dispute with the Commission. This case has all sorts of interesting aspects, ranging from whether the GC’s findings as to the constitutional status of Gibraltar (cf. Azores judgement) are factual or legal findings, to the autonomy of the Member States in the area of taxation, to issues of regional and material selectivity in the case of indirect measures. We will see what the Grand Chamber will do with all this. Commission & Spain v. Gibraltar & UK

AG Bot sides with the Commission against Spain (supported by the UK) in their disagreement about how various kinds of commercials should be counted for the purposes of art. 18 of the Television without borders directive. The Directive has a separate rule for infomercials, but not for the kinds of “mini-spots”, telepromotions, and sponsoring that are common in Spain. The AG agrees with the Commission that they should essentially all be counted as commercials, meaning that Spain is allowing a lot more than 20% advertising. Commission v. Spain (DE, FR)

AG Mengozzi argues that a civil law fine under §§ 890 and 891 of the German Zivilprozessordnung is not within the remit of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It cannot even be treated by analogy as a penalty payment under art. 49 of that Regulation. Then there is an issue of costs, where the AG argues that art. 14 of Directive 2004/48 on the enforcement of intellectual property rights does not apply to an “exequatur” procedure such as this one. Realchemie v. Bayer CropScience (NL, DE, FR)

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