AG Bot also recommended that the Court should hold against
the Netherlands in another immigration case. In his view, the Dutch were a
little too enthusiastic in trying to avoid giving a man who was already a
lawful resident for 5 years and 8 moths a long-term resident’s residence
permit. (They claimed that the applicant, whose residence permit was based on
his job as a spiritual advisor, was “formally limited” in the sense of art.
3(2)(e) of Directive
2003/109, which doesn’t strike me as the most realistic argument ever made
in Luxembourg.) Staatssecretaris
van Justitie v. Singh
AG Mazák has an opinion on IMS Health (=patents vs.
competition law) to the nth degree: Abuse of dominance combined with marketing
authorisations for medicinal products. He recommends that the GC
judgement should be upheld, meaning that the bulk of the
Commission’s decision will probably survive review. AstraZeneca
v. Commission
AG Mengozzi also has a fun one: Does a device need a CE Mark
of conformity under Directive
93/42 if it is capable of being used for medical purposes but not intended
by its manufacturer for such purposes? The AG proposes that the Court should
rely on the manufacturer’s intentions. Like AG Jääskinen in Folien
Fischer last month, the AG summons a whole list of different methods of
interpretation in support of his position. Brain
Products GmbH v. BioSemi VOF
AG Sharpston suggests that Italy is not allowed to exempt
legal persons from the rules on the entitlement of victims of crime to
compensation under art. 9(1) of Framework
Decision 2001/220. Procura
della Repubblica v. Giovanardi et al. (NB. The underlying case concerns a
railway accident in Florence in 2008.)
Just when I was starting to wonder what was going to happen
to the Ruiz Zambrano case law (cf. my recent post here),
AG Trstenjak has another go. Fortunately for her, the case is an easy one: the
father is Japanese, the mother and the daughter are German. The mother and
daughter moved to Austria, and the father wants to stay in Germany. I think the
AG is correct in concluding that that one won’t work. Iida
v. Stadt Ulm
Last week, the Dutch won and lost an interesting public
procurement case on sustainability. Requiring a specific label (EKO or “Max
Havelaar”) was – understandably – too narrow to avoid being discriminatory, but
sustainability as such does have a place in public procurement under Directive
2004/18. Commission
v. Netherlands Cf. Laurens
Ankersmit on Europeanlawblog, who also has a point about the difference
between technical specifications and performance conditions that I don’t think
I agree with.
1 comment:
Re: AG Mengozzi. Interesting case, in my work at Philips we regularly discuss which classification a device should get, which determines the amount of effort needed to introduce it to market. We also have to take into account "foreseeable misuse" (maybe from FDA?), if you design a medical device for treatment A, that doctors may want to apply for treatment B. If that is likely, the manufacturer is responsible to make sure it is also safe for treatment B, or to prevent it being used for B. This also holds for the different classes of medical devices, if it is aimed at a light class, we should foresee applications in a heavier class.
For medical device vs non-medical devices, I heard a funny anecdote from my skincare colleagues. Anti-wrinkle treatments are by definition medical. Anti-wrinkle creams would be medical products / medical drug if they would reduce wrinkles. But this makes manufacturing much more expensive. So manufacturers on purpose make sure anti-wrinkle creams DON'T WORK, so they don't have to adhere to the regulations. Other medical devices like laser treatment is effective against wrinkles, but those are a lot more expensive to manufacture.
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