Thursday, April 26, 2012

This Week in Luxembourg

In Kamberaj, the plaintiff tried to give the ECHR direct effect in the Community legal order via art. 6(3) TEU, but the Grand Chamber (Judge Ó Caoimh) passed. The principles of ECHR law are applicable to EU law, but the ECHR itself is not (yet). The Court then moved on to apply art. 34 Charter rather enthusiastically, using it as a limiting principle for art. 11(4) of Directive 2003/109, which allows the MS to discriminate against 3rd country nationals in the area of social assistance in some circumstances. Cf. Europeanlawblog and ECJBlog.

In Commission v. Cyprus (FR), the Court (per Judge Berger) decided that Cyprus had violated art. 11(1) of Directive 2002/21 and art. 4(1) of Directive 2002/20 by failing to establish a non-discriminatory and transparent charging system for access to telecoms base stations. Cf. the e-comm blog (in German)

In Commission v. Netherlands, the ECJ (Judge Ó Caoimh) held that the Dutch administrative charges for various categories of residence permits are excessively high, in violation of Directive 2003/109. Cf. also January’s G.R. v. the Netherlands in the Court of Human Rights.

Apparently the Spanish decided to go all-in with their anti-smoking policy, banning the import of tobacco from anywhere, including from the rest of the EU, by retail tobacco sellers. Unsurprisingly, the Court (Judge Malenkovský) thinks this is a measure having equivalent effect that cannot be justified under art. 34 TFEU. (Although “unsurprisingly”? If the Swedes are allowed to do it with alcohol, why not the Spanish with tobacco?) Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT) v. Administración del Estado

In Denmark the copyrights organisation is annoyed with the use of copyrighted music by public broadcasters under a statutory exception to the normal rules. For this reason, it has asked the courts to rule that this exception only applies to programmes produced by the TV companies themselves, not to programmes commissioned elsewhere. However, like the AG, the ECJ (Judge Malenovský) doesn’t go for it. DR and TV2 Danmark v. NCB

In Nemzeti Fogyasztóvédelmi Hatóság v. Invitel Távközlési Zrt, some Hungarians are having fun with an action popularis in consumer protection law (i.e. the consumer protection agency is asking for an injunction forbidding the use of certain contract terms). The Court (Judge Safjan) thinks this approach is permissible under Directive 93/13.

In Hofmann v. Bayern, the Court (Judge Rosas) held that Mr. Hofmann is allowed to use his Czech driving license in Germany even though the Germans took his German license away for drunk driving. That makes sense, given that apparently he was legitimately resident in the Czech republic at the time of issuing.

Much discussed among intellectual property experts is AG Bot’s opinion in UsedSoft, about exhaustion & software. The AG argues in favour of a broad application of the doctrine to software sales (cf. art. 4(2) of Directive 2009/24), but not quite as broad as the plaintiff would have liked. Cf. IPKat Blog.

AG Jääskinen has an opinion in a case that potentially has more issues than a 90-year-old cat lady. Fortunately for everyone, the AG finds the easy one that makes the whole edifice come down: in this case, the government is not acting as an undertaking and is therefore not subject to art. 102 TFEU. Compass-Datenbank GmbH v. Austria (If anyone wants to have a conversation about any of the other points, feel free to stick it in the comments section.)

AG Kokott has an opinion on default judgements and Regulation 44/2001, as well as clarifying some procedural questions about the certificates discussed in art. 54 of that Regulation. On the whole, her opinion favours the power of the court of the State in which enforcement is sought to look at the case some more on public policy grounds before granting enforcement. Trade Agency Ltd. v. Seramico Investments

In asylum law, AG Bot has some bad news for asylum seekers: “where a competent national authority intends to reject an application for subsidiary protection made following rejection of an asylum application, the authority is not required to notify the applicant, before adopting its decision, of the elements on which it intends to base its decision and to seek his observations in that regard.” M v. Minister for Justice, Equality and Law Reform et al.

In what must be a good week for the AG, after software producers and asylum seekers he also disappoints the environmental lobby, siding with the GMO industry against Member States looking to ban all genetically modified organisms always. Pioneer Hi Bred Italia Srl v. Ministero delle Politiche agricole alimentari e forestali

In Manufacturing Support & Procurement Kala Naft Co. v. Council (NL, DE, FR), the latter lost another asset freeze case, courtesy of Judge Pelikánová (of course) in the General Court. The Council was not allowed to freeze assets retroactively, i.e. before the decision is published in the official journal, the Council’s statement of reasons was iffy, the applicant was not given timely access to the case file, the Council’s evidence was occasionally insufficient to prove involvement in nuclear proliferation and the Council’s assessment of the evidence it did have was also flawed. So no, not a good day…

Finally, not in Luxembourg but in The Hague, Charles Taylor was found guilty today of aiding and abetting in 11 counts of Very Bad Things, but not of actually ordering them (i.e. participation through command responsibility). I’m not sure if the appeals chamber will have the power to overrule this finding, or even how much it matters. Prosecutor v. Charles Taylor

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