Thursday, June 21, 2012

This Week in Luxembourg

This week’s Grand Chamber judgement (per Judge Lõhmus) is well outside my area of expertise: In trademark law, the prejudicial questions concerned “the identification of the goods and services for which the protection of a trade mark is sought” under Directive 2008/95. Whether the Court’s answers actually clarify anything is apparently still up for debate. Chartered Institute of Patent Attorneys v. Registrar of Trade Marks Cf. IPKat

BNP Paribas and BNL v. Commission is a case about state aid law and banking crisis restructuring, combined with creative corporate income tax law in Italy, so I’ll limit myself to the play-by-play: The Commission said it was unlawful state aid, the General Court (Judge Vilaras) agreed, and now the CJEU (per Judge Fernlund) decided that the review by the General Court was insufficient, but that the Commission’s Decision should still be upheld.

In Access to Documents law, the Court (per Judge Malenovský) annulled the General Court’s judgement in IFAW Internationaler Tierschutz-Fonds v. Commission (per the German (!) Judge Dittrich) because, well, because the General Court hadn’t actually looked at the document in question. So now the General Court has to go and look at it to decide whether the Commission was entitled to refuse access on the grounds that the German government had prepared it and wanted it kept confidential. IFAW Internationaler Tierschutz-Fonds v. Commission

An interesting bit of copyrights law: Mr. Titus Donner will not get away with his attempts to circumvent the German copyrights law by ostensibly selling his infringing products from Italy. The Court (per Judge Schiemann) followed AG Jääskinen and chose reality over legal fiction, meaning that the defendant could go to jail for up to 5 years (cf. art. 106 and 108a of the UrhG). Donner

It sounds obvious enough when you say it out loud, but “the conditions of access to the labour market by Bulgarian students (…) may not be more restrictive than those set out in Directive 2004/114 on the conditions of admission of thirdcountry nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service.” Sommer v. Landesgeschäftsstelle des Arbeitsmarktservice Wien

The conclusion in Wolf Naturprodukte v. Sewar (per Judge Šváby) is simple enough: “Article 66(2) of Regulation 44/2001 [means] that, for that regulation to be applicable for the purpose of the recognition and enforcement of a judgment, it is necessary that at the time of delivery of that judgment the regulation was in force both in the Member State of origin and in the Member State addressed.”

In Sillogos Ellinon Poleodomon kai Khorotakton v. Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon, et al., the Court (per Judge Schiemann) goes over the law on environmental impact studies again.

I’m going to try not to say something harsh about ANGED v. FASGA et al. (per Judge Levits), at least not here: “Article 7(1) of Directive 2003/88 [precludes] national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work.”

On the same day as its reprimand by the CJEU in BNP Paribas and BNL v. Commission (see above), the General Court also got reprimanded by AG Bot for failing to “exercise its unlimited jurisdiction in considering the proportionality of the fine imposed by the European Commission on E.ON Energie AG”. Incidentally, the fine in question was € 38 million for breaking a seal. The Commission’s Decision is here, and the General Court judgement (per Judge Martins Ribeiro) is here. E.On v. Commission

AG Kokott, after citing Douglas Adams, sided with Italy in its ongoing dispute with EPSO. She argued that the General Court was wrong to conclude that a personnel posting that explicitly required a good knowledge of English, French or German needed to be published in full only in those three languages. According to the AG, the posting should have been in full in all 23 official languages. Italy v. Commission

AG Cruz Villlalón looks at the re-utilisation of the contents of databases under art. 7 of Directive 96/9 and comes up with an inconvenient answer. Whether it is also correct or not I do not have the expertise to say. Football Dataco et al. v. Sportradar

AG Bot’s opinion in Gülbahce v. Hamburg, which deals with – of course – the rights of Turkish workers in the Common Market, is a bit of a mixed bag for Turkish citizens. On the one hand, he explains that you cannot retroactively take away someone’s residence permit absent a showing of fraud, but on the other hand he proposed that the Court should put a stop to any attempt to leverage art. 10(1) of Decision 1/80 to get around the requirements listed in art. 6(1) for an extension of a residence permit.

Following last year’s Aladzhov, there is now another case before the Court about Bulgarians not being allowed to leave the country. This time, it’s not about an unpaid tax debt, but about an unpaid significant debt to another private citizen. AG Mengozzi concluded that such a ban on travelling abroad will not normally be consistent with EU law – which is in line with Aladzhov except formulated in reverse – and added that the plaintiff’s ability to challenge his travel ban in Bulgarian court left somewhat to be desired. Byankov v. Glaven sekretar na Ministerstvo na vatreshnite raboti

In competition law, the President of the Court two weeks ago upheld the decision of the President of the General Court not to allow Deutsche Bahn to intervene in the air freight cartel case. The fact that DB Schenker is a customer (as well as a potential competitor) of the cartel is not enough to give it a sufficient interest in the case, nor is the fact that it has a potential private damages claim. DB Schenker v. Lufthansa et al. (there are a whole number of orders but they are all the same).

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