Last Week in Luxembourg

Last week’s first Grand Chamber judgment dealt with the retroactive effect of the EU competition laws: Can a company also be fined for being part of a cartel in a Member State before its accession? The Grand Chamber replies that it cannot be. Instead, the national competition authority has to apply its national law for that period. Toshiba et al. v. Úřad pro ochranu hospodářské soutěže

The other Grand Chamber case was Flachglas Thorgau v. Germany, about my beloved Aarhus Convention. It is the companion case to last year’s Boxus v. Région wallonne and this week’s Solvay v. Région wallonne. While those two cases dealt with a parliament doing the work of the administration, this German case deals with ministries working as part of the legislative process. The holding is that ministries can be exempt from the Aarhus Convention if and when they are part of an ongoing legislative procedure. Flachglas Thorgau v. Germany

SABAM loses again on internet filtering. Following last year’s Scarlet Extended (also 3^rd chamber, also with judge Malenovský as rapporteur), there is now SABAM v. Netlog. The Belgian courts may not issue an injunction ordering ISPs to install certain filtering software.

In the joined cases of Costa and Costa, it turns out that Italy has made quite a mess out of its attempts to remedy its infringements of EU law in the area of gambling. The “remedy” is insufficient, it still favours the old license holders, it infringes against the principle of equal treatment, and finally it infringes against the principle of legal certainty.

In what may well be the shortest substantive judgment I have ever seen, the Court explains that “Article 7 of Directive 90/314 on package travel, package holidays and package tours is to be interpreted as covering a situation in which the insolvency of the travel organiser is attributable to its own fraudulent conduct.” (Seriously, the consideration of the question referred consists of only 17 lines and 8 paragraphs.) Blödel-Pawlik v. HanseMerkur Reiseversicherung

AG Cruz Villalón has an opinion in a combination AdWords & jurisdiction over online torts case. I.e. “who has jurisdiction over AdWords cases?” The answer is, as usual, a lot of different countries: “the courts of the Member State in which the trade mark is registered, and (…) the courts of the Member State where the means necessary to produce an actual infringement of a trade mark registered in another Member State are used.” Wintersteiger v. Products 4U

AG Sharpston argued that the Dutch “three out of six years” rule for eligibility for student grants is discriminatory towards immigrants. Note the pretty introduction discussing the life of Erasmus. Commission v. Netherlands

A state aid case: The Commission approved restructuring aid paid by the French government to FagorBrandt, but subject to conditions. Two of its competitors, Electrolux and Whirlpool, brought an action for annulment, and the General Court now annulled the decision on the grounds that the Commission failed to take into account the cumulative effect of earlier aid and this new aid. Electrolux and Whirlpool v. Commission

Also from the General Court, an interesting bit of EU-MS diplomacy in light of developing case law. Initially, the Commission sided with Germany when the latter resisted giving access to documents generated in the course of a past infringement procedure, but as the case law in this area developed, the Commission reconsidered and gave access anyway. Germany brought a case before the GC, and now loses. Germany v. Commission

In other news, it seems as if the Czech Constitutional Court has decided to wage war on the CJEU, by declaring a Luxembourg judgment ultra vires. A discussion of the case on the court’s website is here, and there is a full analysis on the Verfassungsblog here.

Also interesting is the intervention by the European Commission in the Dutch pricing system for wholesale mobile telephony. Originally, the regulator (Opta) had used the Commission’s preferred approach, but they were overruled by the courts (the CBB, to be precise). Now that the Opta followed the CBB’s ruling, their new decision was frozen by the Commission using a new competence under art. 7a of the Telecoms Directive. This gives the Commission (and BEREC) three months to work out a better alternative. Press Release