This Week in Luxembourg

This week in competition law, the Grand Chamber may or may not have overruled an important part of Akzo v. Commission. They held that in the zone between Average Total Costs and Average Incremental Costs (?) abusive price discrimination may be shown even in the absence of exclusionary intent. (To be precise: “it is necessary to consider whether that pricing policy, without objective justification, produces an actual or likely exclusionary effect, to the detriment of competition and, thereby, of consumers’ interests”.) Post Danmark v. Konkurrencerådet Cf. my earlier blog post.

Poland apparently went a bit too far in encouraging generic medicines. Such products still need a marketing authorisation even if they are in all respects identical to products that are already on the market. Commission v. Poland

In SAG ELV Slovensko et al. v. Úrad pre verejné obstarávanie, the 4^th Chamber clarified the obligation of awarding authorities to ask for clarification in case of abnormally low bids. Cf. art. 55 of Directive 2004/18. As it turns out, asking for clarification is not optional.

The Dutch again lost a case about Turkish workers, but this one is at least amusing: Does a Turkish worker lose his protections under Decision 1/80 if he acquires Dutch citizenship while keeping his Turkish passport? (As usual, Decision 1/80 is on p. 155 here.) The 1^st chamber says no, so the spouses of the dual-citizenship workers get to stay. Staatssecretaris van Justitie v. Kahveci and Inan

In the ongoing litigation about the National Allocation Plans for Greenhouse Gases under art. 9 of Directive 2003/87, the 2^nd Chamber rejected the appeals of the Commission in the case against Poland and Estonia. So the 2008-2012 NAPs of these countries get to stay in place.

After Ryanair last week, this week it is a health claims plaintiff who is trying to salvage an impossible case by pointing to art. 15 and 16 Charter (which, for some reason is not available through Amicuria), but again to no avail. To illustrate the degree of “hail Mary” involved: this argument came after the argument that a claim of a temporary health benefit is not a health claim in the sense of Regulation 1924/2006. For background, the claim we’re talking about is the claim that a certain wine is “bekömmlich”. Deutsches Weintor v. Land Rheinland-Pfalz

The 4^th Chamber also held that you cannot apply the limitation period of art. 3 of Regulation 2988/95 to interest that is due only pursuant to national law, even if the underlying claim is based on EU law. (In this case agricultural subsidies.) Bundesanstalt für Landwirtschaft und Ernährung v. Pfeifer & Langen

It turns out that intermediary dealers in garbage and other waste do not have attorney-client privilege. They do not get to hide where the waste came from, even if there are business secrets involved. Interseroh Scrap and Metals Trading GmbH v. Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM)

AG Trstenjak has an opinion on the work of a private law standards setting agency as a Measure Having Equivalent Effect under art. 34 TFEU. She attaches both a legal and a practical condition: art. 34 TFEU is applicable if the norms created by the agency are explicitly taken on board by the law maker and if, for that reason, deviating from them is hardly possible in practice. Fra.bo v. Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW)

Following his opinion in Éditions Odile Jacob v. Commission three weeks ago, AG Mazák now has an opinion in the other two appeals arising out of that case. This time, the Commission gets a partial win: the AG thinks the General Court was wrong to annul the Commission’s Decision approving of the purchase by Wendel of the parts of Vivendi that Lagardère was not allowed to keep. Commission and Lagardère v. Éditions Odile Jacob

Also fun: Mr. Donner is accused of aiding and abetting in various copyright violations for being involved in the sale of copyrighted furniture from Italy, where said furniture was not subject to copyright protection, to Germany where it was. AG Jääskinen argues that this does not violate Free Movement law or EU copyright law. Criminal proceedings against Titus Donner

AG Bot has an immigration case. On 31 May 2006, a Bangladeshi man married an Irish woman living in the UK. Subsequently, his brother, half-brother and nephew applied for residence permits on the grounds that they were dependents in the sense of art. 3(2) of Directive 2004/38. The British thought that that was a bit much, so they said no. And that is how these three Bangladeshis ended up in Luxembourg. The AG’s answers will most likely result in them being allowed to stay in the UK. Secretary of State for the Home Department v. Rahman and Others

The other big competition case this week, other than the abovementioned Post Danmark, is Telefonica v. Commission and Spain v. Commission. In these cases, the Commission’s decision that Telefonica had abused its dominant position by engaging in a margin squeeze was upheld, as was the € 151.875.000 fine. Following Deutsche Telekom and TeliaSonera, this is the third such case where telecoms regulation and competition law get in each other’s way over margin squeezes (cf. my book chapter on the topic), but this is the first time a Member State itself got in on the action. (Also, the last time it wasn’t quite so expensive. Deutsche Telekom only had to pay € 12,6 million.)

With regard to two state aid decisions in Re: Alitalia & the state of Italy, Ryanair lost on both counts. In the first case, its case was declared inadmissible on individual concern grounds, and in the second case it lost on the merits. Ryanair v. Commission

Finally, here is the most recent draft of the new Rules of Procedure of the Court of Justice.