This Week in Luxembourg

In Zeturf, the ECJ sided with the Member State, as it has done in most gambling/free movement of services cases. However, it did tell the French court to carefully examine the facts on the ground, and to make a number of specified factual findings.

In intellectual property law, the ECJ has a problem with the Belgian system for remuneration under art. 5 of Directive 92/100, which governs the remuneration authors receive when their works are lent out by a library. The objection is that the remuneration depends on the number of lenders registered with a given library, but not on the number of works available for lending. Vereniging van Educatieve en Wetenschappelijke Auteurs v. Belgium (for more copyrights fun see below)


AG Mengozzi considers two appeals by Bank Mellin and its subsidiary Melli Bank against General Court rulings upholding their asset freezes, and concludes that both should be rejected. Bank Melli v. Council (DE, FR) and Melli Bank v. Council

AG Sharpston has another opinion about the line between public bodies acting in a legislative capacity and their other duties. Following her opinion of 19 May about the Walloon parliament ratifying a decision, she now considers the German Environment Ministry as it is involved in the preparation of legislation. She concludes that Germany was entitled to exclude ministries when they are acting in this capacity. Cf. Directive 2003/4, art. 2(2). Flachglas Torgau v. Germany

She also has a Air Passenger Rights case under Regulation 261/2004. Yes, if a plane takes off but is forced to return for technical reasons, it is still cancelled within the meaning of the Convention. (par. 27-56) She also explains that "without prejudice to further compensation" means exactly what you think it means (cf. art. 12) and that there's no requirement for passengers to claim their rights immediately in order to preserve their right to reimbursement. Sousa Rodriguez and others v. Air France

AG Bot considers a bit of procedural law in a state aid case. The case itself is quite interesting, dealing with below cost pricing by Deutsche Post in the parcel services market. This specific dispute, however, concerns the Commission's power to demand information. Deutsche Post tried to have the Commission's decision annulled, but this request was declared inadmissible. AG Bot now concludes that a formal decision demanding information under art. 10(3) of Regulation 1999/659 is an act in the sense of art. 230 EC. Deutsche Post v. Commission (NL, DE, FR)

AG Trstenjak has two cases on equitable remuneration in copyrights cases under art. 8(2) of Directive 2006/115. A dentist has to pay for putting a radio in his waiting room: SCF Consorzio fonografici (DE, FR, IT), and so does the owner or operator of a hotel who provides TVs or - and I'm not making this up - "players for phonograms": Phonographic Performance (Ireland). Note that in the latter case the copyrights body took the Irish state to court for incorrect transposition.


In the Netherlands, it looks like the Hoge Raad will take on its usual role of tempering the enthusiasm of the Courts of Appeals (cf. the Hofstadgroep case, and pretty much every appeal against a ruling by the Ondernemingskamer ever). In the cases about the reorganisation of the electricity and gas sectors, where the CoA in The Hague had ruled that the mandatory unbundling violated art. 63 TFEU (free movement of capital), AG mr. Keus now argues that this is wrong given art. 345 TFEU. Note his explanation of why the Court should not ask a prejudicial question in par. 5.8-5.9.

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

Wilders trial

I haven't discussed the Wilders trial here, because the case really isn't that interesting. (Legally, it's a matter of ridiculous distinctions, and morally the whole things is quite obviously a farce.) I have, however, discussed the case a little on the Volokh Conspiracy, explaining the legal niceties of it all to my American friends, and translating a few things here and there. As of today, the english translation of the entire verdict is also available. (In Word format.)

Wikipedia's freedom

Here's something I've been noticing in recent months: In all language versions of Wikipedia that I've come accross, they translate "the free encyclopedia" with the liberty meaning of free. But I've always understood the phrase as referring first and foremost to the fact that Wikipedia doesn't cost any money. After all, I don't see how the wiki-method necessarily implies greater liberty for anyone, but it certainly does imply that no one has to pay. Let's consider all the languages:

• Dutch: De vrije encyclopedie


• German: Die freie Enzyklopädie


• French: L'encyclopédie libre


• Spanish: La enciclopedia libre


• Italian: L'enciclopedia libera


• Portuguese: A enciclopédia livre


• Danish: Den frie encyklopaedi


• Swedish: Den fria encyklopedin

I could go on and on. I wonder if this was a deliberate decision by the Wikipedia Foundation when they first authorised other language versions, or whether it is the result of some sort of path dependence. On the other hand, here is a pre-wiki paper by Richard Stallman, a wiki-visionary, outlining the idea for a free encyclopedia. He talks about it very much in terms of freedom, whithout necessarily defining the term.

And, of course, the english Wikipedia page itself says that it is "the free encyclopedia that anyone can edit."

The Right to Remain Silent

Here's another brain teaser: Does the (Dutch) right to remain silent enjoyed by the employees of companies under competition law investigation extend to former employees as well? Here are the steps of the problem:

Under art. 53 of the Dutch competition law, the right to remain silent of art. 6 ECHR extends to companies under competition law investigation as well.

Since companies obviously cannot speak for themselves, this right would be meaningless unless it includes a right to remain silent for "those who speak on behalf of the company", even if they themselves are not under investigation. Let's leave to one side for the moment the question of whether they would have a fiduciary duty under company law to exercise that right.

The next question concerns the circle of people who are covered by this right. At the very least, it has to include those who are the legal representatives of the company under the relevant provisions of company law, i.e. the company board. However, in the 2003 case of Texaco v. NMa, the Rotterdam court extended the right to remain silent to all employees, on the grounds that they all operate "on the side of the company". (Apologies for the translation, but in this case a literal translation is probably preferable. The Dutch is "aan de zijde van de onderneming".)

Based on that precedent, the plaintiff in the new case of X v. NMa argued that the normal rule for a derived right to remain silent should apply: even after the relationship which gave rise to said right has ended, the right still applies for matters the person learned while the relationship existed, as a result of the relationship, etc. Doctors, lawyers and spouses cannot violate (or cannot be obligated to violate) the privacy of their former client or spouse even after the relationship is over. The Court, however, says "no dice". That would be one step too far. Former employees cannot be said to be speaking on behalf of the company by any stretch of the imagination.

There is no question that it would have been preposterous if the judgement had gone the other way. However, that does not mean that the line has now been drawn in the correct place, either as a matter of statutory interpretation or as a matter of policy. Starting with the latter, it is interesting to note that the European Court of Justice, in Orkem v. Commission (1989), declined to read a full right to remain silent into the procedural rules of European Competition Law:

29 In general, the laws of the Member States grant the right not to give evidence against oneself only to a natural person charged with an offence in criminal proceedings . A comparative analysis of national law does not therefore indicate the existence of such a principle, common to the laws of the Member States, which may be relied upon by legal persons in relation to infringements in the economic sphere, in particular infringements of competition law.
(...)
35 [However], the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.

For this reason, there is no right to remain silent codified in Regulation 1/2003 or Commission Regulation 773/2004. Instead, the Orkem rule governs.

This seems reasonable. It is difficult to see the moral case for an absolute right of silence when the person who is asked to speak is not the one who is at risk of being punished. To be sure, we shouldn't make life too easy for the Competition Authority, but the Orkem rule seems to strike the balance about right. For the specific problem of this post, the Orkem rule seems to mean that there is no right to remain silent for ordinary employees or ex-employees, since they are hardly in a position to admit "the existence of an infringement". (I couldn't find any ECJ case law on point, though.)

For the Dutch case law, this means that the jurisprudence went off the rails at the earlier stage of the Texaco ruling. In that case, the court should have preferred the narrower reading of the statute, rather than the broader one. The Texaco court said with so many words that the narrow reading was not compelled by either the text or the history of art. 53 Competition Act, which suggests that it felt that the broad reading was not compelled either. Instead of avoiding the issue, which it could have done given that the Texaco case concerned a franchisor who was asked to testify against its franchisees, the Texaco court applied the reading it preferred without properly considering the consequences.

This Week in Luxembourg

The Grand Chamber struggled this week with the clash between private damages actions and leniency programmes in competition law. Should a private party looking to sue for damages be given access to the documents that a company voluntarily provided as part of its leniency application? The Grand Chamber ruled that there is nothing in EU law that categorically rules this out, but passed the buck to the MS courts for a case by case "weighing [of] the interests protected by European Union law". Pfleiderer v. BKA

In Paul Miles and Others v. European Schools, the Grand Chamber held that it had no jurisdiction to rule on a reference for a preliminary ruling from the Complaints Board of the European Schools, because the Complaints Board is not a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. The Court distinguished the Benelux Court of Justice precedent of Parfums Christian Dior.

A victory of the Dutch system of copying levies this week. In Stichting de Thuiskopie v. Opus, the Court held that the Dutch system is compatible with art. 5 of Directive 2001/29, and that the Dutch courts are entitled to put the bill with the defendant, a German company who are marketing CD-ROMs for the Dutch market in order to avoid the levy.

Again a Turkish worker wins in Luxembourg: Pehlivan v. Staatssecretaris van Justitie. This time, the plaintiff went back to Turkey and got married, thus allegedly (according to the Dutch authorities) severing the family ties to her father that were the basis of her right of residence. The Court concludes, however, that this argument has no basis in Decision 1/80.

The defendant-appellant in Prism Investments v. Arilco (NL, DE, FR) tried to avoid a declaration of enforceability of a Belgian judgement requiring it to pay over € 1 million by inviting the Dutch court to rule that the debt had already been paid. The Dutch court (rechtbank), and now AG Kokott, argued that this does not work. Art. 45 of Regulation 44/2001 does not allow it, because it is a problem that belongs at the stage of enforcement. It is not an argument as to enforceability.

The General Court dealt with three big competition law dossiers this week. The highlights:
· In L'Air liquide (NL, DE, FR) and Edison (NL, DE, FR), the Commission's decision was annulled because it failed to explain properly why the infringement should be attributed to the appellant.
· Also in the Hydrogen Peroxide dossier, in Solvay, the decision was annulled for the period before May 1995.
· In the Dutch beer cartel dossier, the Commission's decision was annulled to the extent that it covered "the occasional coordination of other trading conditions than the price in the restaurant/café segment". Bavaria v. Commission (NL, DE, FR) and Heineken v. Commission (NL, DE, FR).
· In the International Removals Cartel dossier, Stichting Administratiekantoor Portielje is completely off the hook (it didn't control Gosselin to a sufficient extent), while the Gosselin group's decision is annulled for the period of 1993-1996, on the grounds that no infringement existed during that period. (NL, DE, FR)
· In Verhuizingen Coppens, finally, the Commission's decision was annulled for lack of evidence.

P.S. the archive of these emails is here. If you would like to be on the mailing list, drop me an email at martinned@hotmail.com.

Aldo Patriciello

I just highlighted it briefly in this week's This Week in Luxembourg, but apparently Aldo Patriciello has two preliminary ruling procedures pending before the ECJ at the same time, which, I think (and hope) stem from the same criminal case, i.e. the prosecution against him for saying - repeatedly - that a police officer entered the wrong times on parking tickets, which is arguably both a slander and a criminal insult.

On the one hand there is a question by the Justice of the Peace in Venafro, from 15 October 2010:

Do the facts construed in abstracto as a criminal offence committed by Aldo Patriciello (a Member of the European Parliament, described in the indictment and in favour of whom the European Parliament adopted a decision on 5 May 2009 to defend immunity), categorised as insulting behaviour under Article 594 of the Penal Code, correspond to the expression of an opinion in the performance of parliamentary duties for the purposes of Article 9 of the Protocol?

But at the same time, there is also a question pending by the Court in Isernia, i.e. the court which is meant to supervise the Justice of the Peace in Venafro, who asked on April 2, 2010:

Do the facts construed in abstracto as a criminal offence committed by Aldo Patriciello — a Member of the European Parliament, described in the indictment and in favour of whom the European Parliament adopted a decision on 5 May 2009 to support a defence of immunity — which is categorised as slander under Article 368 of the Penal Code correspond to the expression of an opinion in the performance of parliamentary duties for the purposes of Article 9 of the Protocol of 8 April 1965 on the privileges and immunities of the European Communities?

This is the question that was answered by AG Jääskinen today, without reference to the later Venafro question. (DE, FR)

How messy is a criminal justice system if these two almost identical questions - slander vs. insult - coming from the same incident, come to the ECJ from two different levels of the court system at the same time?

This Week In Luxembourg

In the war against excessive advertising, the Court dealt another blow. In Eleftheri tileorasi and Giannikos it held that " the provision of payment or of consideration of another kind is not a necessary condition for establishing the element of intent in surreptitious advertising" under Directive 89/552 as amended by Directive 97/36. The alleged surreptitious advertising consisted of a daytime television show talking about teeth whitening.

In Electrosteel v. Edil Centro, the parties can't agree on which court has jurisdiction to decide on the place of delivery. In other words, they can't agree on which court has jurisdiction to decide which court has jurisdiction under Regulation 44/2001. The Court sums up the usual factors, and concludes that if you really don't know, you're permitted to simply look at the place where the physical power over the goods in question was transferred.

In Ambrósio Lavrador and Olival Ferreira Bonifácio, the Court emphasises an important fact about the automobile insurance directives (Directives 72/166, 84/5 and 90/232.): they require that insurance coverage be available, but they do not govern the extent of the liability. That is a matter for MS law. Cf. also the recent case, also from Portugal, of Carvalho Ferreira Santos.

The Seventh Chamber gave some guidance on Directive 98/34 "laying down a procedure for the provision of information in the field of technical standards and regulations". The Belgian Decree on safety requirements does not qualify as a "technical regulation" under the directive. Intercommunale Intermosane and Fédération de l'industrie et du gaz v. Belgium

The Parliament lost an important Access to Documents case this week. In Toland v. Parliament, the General Court sided with the applicant against the Parliament's reliance on the exceptions of undermining audits and inspections and undermining the internal decision making process. The courts have been tougher on that latter exception for some time now, requiring evidence of specific problems. As for the former, the court found that the Parliament had failed to offer sufficient evidence to support its claim. Cf. EUObserver

The Council, in turn, again lost a freezing of funds case. Apparently, Mrs Nadiany Bamba, the editor of a pro-Gbagbo newspaper in Ivory Coast, was not given sufficient information about the Council's motivation for including her in the list of targets to allow her to adequately contest her inclusion. (Cf. Annex I, no. 6, of Regulation 25/2011.) Fortunately, the Council is given the opportunity to fix the problem, although they may not want to, given recent developments. Bamba v. Council (FR)

AG Jääskinen considered the Parliamentary immunity of Aldo Patriciello, who apparently lost his marbles in a hospital parking lot, and as a result stands accused of slandering a police officer. The Parliament decided to maintain his immunity, but that only matters if he has immunity in the first place. Which is why the ECJ now has to decide whether his rants to the police have a close enough nexus to his parliamentary work, this being the criterion for immunity in Italy. The AG thinks it does not. (DE, FR) There might still be a free speech issue, though. (But probably not.)

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

A Rights Revolution

By way of update concerning my post about the ECJ's ruling in Association Belge des Consommateurs Test-Achats, it is interesting to consider some professional analysis of the case. The first such analysis - to my knowledge - has now been done by University of London political scientist Deborah Mabbett. She specifically discusses the question that I also signalled at the end of my post, whether this judgement is the beginning of - in Mabbett's words - a European Rights Revolution. Her conclusion is that we need not worry overmuch; the judgement is less about judicial activism than it is about empowering the EU level against the lobbying efforts of the insurance companies, who had managed to obtain an exception that the really should not have gotten given the philosophy of the directive.

(By the way, look at the recent ECJ judgements against notaries in various MS: Commission v. Greece, Commission v. Germany, Commission v. Austria, Commission v. Portugal, Commission v. Luxembourg, Commission v. France, and Commission v. Belgium. )

Abstract:

In a recent decision, the European Court of Justice has ruled that insurers cannot discriminate on grounds of sex in setting premiums or determining benefits. This paper discusses the background to this decision. It asks whether we are seeing a US-style ‘rights revolution’, fuelled by judicial activism, as suggested by Dobbin et al’s hypothesis of ‘the strength of weak states’ or Kagan and Kelemen’s account of ‘adversarial legalism’. It is shown that neither of these theories captures the distinctive nature of the ECJ’s intervention. An industry-friendly policy was pursued in regulatory venues, but this was overridden by the ECJ’s interpretation of the fundamental right of equal treatment. However, it is also shown that the judicial defence of fundamental rights is a weak basis for social policy, and does not foreshadow a revolution in the development of social rights in Europe.

Let's hope that she is right...