This Week in Luxembourg

This week, the Grand Chamber weighed in on the imprisoning illegals debate. What the Court said is that MS may not make illegality a crime per se, and may not detain illegals, except in the circumstances envisaged in art. 8 of Directive 2008/115, i.e. in the run-up to forcible removal. Achughbabian

The First Chamber had another case on Decision 1/80 (cf. p. 155 here), although this time not against the Netherlands. A Turkish immigrant worker does not have the same kind of protection against expulsion as an EU citizen does under Directive 2004/38, meaning that he can be sent back to Turkey if his “numerous criminal convictions” make him a “genuine and sufficiently serious threat affecting the fundamental interests of society”, no matter how long he has been in the host country. (Assuming such expulsion is proportionate, of course.) Ziebell v. Land Baden-Württemberg

In Residex v. City of Rotterdam, the Rotterdam District Court thought it had found a neat and simple way to resolve the problem of unlawful state aid in the form of a guarantee given by the city. It declared that guarantee null and void under art. 3:40 Civil Code, and that was pretty much that. The Court of Appeals agreed. The Advocate-General at the Supreme Court, however, thought this was too simple by half. So did AG Kokott (NL). The First Chamber now signs off on the nullity approach, but with the important proviso that the court always has to make sure the competitive situation is restored.

KME and Chalkor lost the appeals in their copper plumbing cartel case. It doesn’t look like they argued anything interesting, although I may of course be wrong, given that I completely missed the novelty of Pierre Fabre in October. KME v. Commission, KME Germany v. Commission and Chalkor v. Commission

Likewise, France Télécom lost its state aid appeal. That case is obviously going to be interesting for anyone working on regulation and competition law issues, even if the particular circumstances of France’s “special tax regime” are unlikely to appear anywhere else.

For the specialists on patents for medicinal products: In Merck Sharp & Dohme v. Deutsches Patent- und Merkenamt, the Second Chamber discusses the possibility of “grant[ing] a supplementary protection certificate where the period that has elapsed between the date of lodging the basic patent application and the first marketing authorisation in the European Union is less than five years.” Cf. Regulation 1901/2006 on medicinal products for paediatric use.

In Invitel (NL, DE, FR), AG Trstenjak discusses the role of an actio popularis in consumer protection law. (Cf. art. 6 and 7 of Directive 93/13.) The answer to all three questions favours the (Hungarian) consumer.

In a case concerning access to documents in a merger review case, AG Cruz Villalón proposes annulling the General Court’s judgement, which in turn annulled the Commission’s decision. The AG’s main problem with the lower court ruling seems to be one of approach, however, not of result. The AG wants the Commission to provide a “concrete and individual justification” for each document it declines to give access to. Commission v. Agrofert Holding

The Deutsche Post state aid case seems to have a troubled past, having already gone to the General Court and the CJEU once before. Now, however, the General Court holds that the request for information that Deutsche Post is trying to get annulled is a non-decision. Deutsche Post v. Commission

The General Court struck HTTS from the list of people and organisations whose assets were to be frozen in light of the sanctions against Iran, because the Council’s stated reasons were insufficient and/or contradictory. It did, however, give the Council two months to fix this problem, so HTTS will probably not get its assets back anytime soon. HTTS Hanseatic Trade Trust & Shipping GmbH v. Council

Macedonia v. Greece

On EJIL:Talk!, Antonios Tzanakopoulos has a discussion of the ICJ's judgment in Macedonia v. Greece. I have very little to add to what he wrote, but I would like to point out one aspect of the case that he does not mention: Did Greece comply with its obligation not to "object" by abstaining, or was it supposed to vote in favour? Given that NATO requires unanimity for invitations to new members, the answer is quite obviously the latter, but I do love the lawyerly creativity of the Greeks involved here. It is a classic example of lawyers taking an unwinnable case and trying to put a non-frivolous spin on it:

69. The Respondent interprets the obligation “not to object” more narrowly. In its view, an objection requires a specific, negative act, such as casting a vote or exercising a veto against the Applicant’s admission to or membership in an organization or institution. An objection does not, under the Respondent’s interpretation, include abstention or the withholding of support in a consensus process. As a general matter, the Respondent argues that the phrase “not to object” should be interpreted narrowly because it imposes a limitation on a right to object that the Respondent would otherwise possess.

As Tzanakopoulos points out, the ICJ's answer to this point actually contains some interesting considerations regarding the weighing of duties against rights, but the original argument is fascinating in its creativity...

Palanca

I'm sorry, but this is just fun. I've always wondered how Budjak, the little bit of Ukraine that lies between Moldova and the Black Sea, is connected to the rest of the country. Today I decided to look it up. It turns out there is a very tiny road, the T-1604, at the end of the estuary of the Dnjestr, essentially running over a couple of Lido-type islands and peninsulas, but that the E87/M15, the main connection between Odessa and Reni in the South-West on the Danube runs through the South-East corner of Moldova for 7,7 km.

View Larger Map

As far as I can tell, Moldova and Ukraine have a Treaty whereby Ukraine is going to obtain title over that road (but not the land on the South-side of the road), but this Treaty has only partially been carried out. Says the Moldovan Deputy Foreign Minister in 2009:

Similarly, we have a problem in Palanca – there is a needed to complete the demarcation process, but also to deliver on the Republic of Moldova’s commitment to transfer into the property of Ukraine not only the asphalt but also the land area of 7.7 kilometers of road (which is a portion of the 300 km road between Odessa and Reni), and also to clarify the situation with the land, which under the Treaty of 2001, should be transferred into the property of Ukraine. Moreover, attention - even those who are trying today to politicize this issue and making all sorts of speculation have already passed the road surface and land pertain to the road into the property of Ukraine in February 2002. Thus, the surface was transferred, yet without transferring also the land from under the road.

In the words of one article: Ukraine made Moldova a Maritime State by Mistake. How awesome is that???

But no worries, the EU is on the case.

This Week in Luxembourg

In Painer v. Standard Verlag and others, the case about the photograph used to search for Natascha Kampusch, the 3^rd Chamber’s judgment is more favourable to the photographer than AG Trstenjak’s opinion was. Unlike the AG, the Court suggests that the photographer probably will be able to sue all the newspapers at once, and it also holds that the public interest defence is less powerful than the AG had argued.

The law on the importation of counterfeit goods turns out to be more complicated than I thought. If I understand this judgment correctly, whether the intellectual property can prevent counterfeit goods from being brought into the EU depends on whether they’re coming here to stay. Joined cases Philips v. Lucheng Meijing and others and Nokia v. HM Commissioners of Revenue and Customs

The Netherlands, too, is no longer permitted to require that notaries have Dutch citizenship. The war on notaries continues. (Cf. these judgments from May: Commission v. Greece, Commission v. Germany, Commission v. Austria, Commission v. Portugal, Commission v. Luxembourg, Commission v. France, and Commission v. Belgium.) Commission v. Netherlands (NL, DE, FR)

AG Mengozzi proposed that the Grand Chamber should overrule the General Court’s judgment in Tay Za v. Council, where that court upheld the asset freeze imposed on the applicant on account of his connection to the regime in Burma. The AG considered that the General Court and the Council made a mistake on legal basis (art. 60 and 301 EC), that there had been a violation of the rights of defence, that the General Court had been too deferential to the Council, and that the Council had failed to state adequate reasons. So yes, ouch… Tay Za v. Council

In another opinion for the Grand Chamber, AG Bot gives an – in my view appropriately – narrow reading of copyright law & software. Copyright protects the code, not the functionality. Cf. Directive 91/250. Of course, the user manual is a different story. That you can’t copy. SAS Institute Inc. v. Word Programming Ltd.

AG Trstenjak has some thoughts on unfair trade practices and usury. Yes, usury. Pereničová and Perenič v. SOS finance (NL, DE, FR) Perhaps more relevant for the 21^st century, she also has an opinion on the French approach to re-entry visas for 3^rd country nationals who temporarily want to leave France. The AG does not consider the French approach unlawful under the Schengen Borders Code. Association nationale d’assistance aux frontières pour les étrangers v. Ministre de l'intérieur, de l'outre-mer, des collectivités territoriales et de l'immigration (NL, DE, FR)