Thursday, December 06, 2012

This Week in Luxembourg

In the same week that the Commission handed down its largest ever cartel fine (yet to be published), the Court (Judge Ilešič) upheld the General Court’s judgement in AstraZeneca v. Commission, which had set a somewhat lower fine on the applicants than originally decided by the Commission, but had upheld the bulk of the Commission’s work. The underlying problem concerns “abuse [of] the patents system and the procedures for marketing pharmaceutical products in order to prevent or delay the arrival of competing generic medicinal products on the market and to impede parallel trade.” AstraZeneca v. Commission Cf. Chillin' Competition Blog and The Antitrust Hotch Potch

In the other competition case, Commission v. Verhuizingen Coppens, the Commission managed a partial win. In the General Court, the Commission’s decision had been annulled, on the grounds that the Commission had not discharged its burden of proof in establishing that the applicant’s issuing of “cover quotes” was knowingly anticompetitive and part of a cartel. The Court (Judge Jarašiūnas) now held that that was too harsh. Cartel involvement was proven, and so the Court restored part of the fine. (€ 35.000 instead of € 104.000)

Dittrich et al. v. Germany is another small step for equal rights for gays, although it is nowhere mentioned in the judgement. The case concerns alleged discrimination between civil servants who are married and civil servants who are part of a civil partnership. The Court (Judge Šváby) replied that Directive 2000/78 applies if the assistance in question is to be paid by the state in its capacity of public employer (as opposed to in its capacity as sovereign). Not very surprising, but good to know.

Confronted with another Ruiz Zambrano case, the Court (Judge Ó Caoimh)’s ambivalence is plainly visible. On the one hand, they would like to follow AG Bot (NLDEFR) and once again distinguish this case from the original precedent. However, the fact pattern here is too close to the fact pattern in Ruiz Zambrano to make that plausible. So they split the difference and leave it to the national court to decide whether, in each case, the child’s “genuine enjoyment” is at risk. O, S and L v. Maahanmuuttovirasto

In Sagor, the Court (Judge Ilešič) puts some Italian immigration law along the yardstick of Directive 2008/115 on “common standards and procedures in Member States for returning illegally staying third-country nationals”. A criminal fine for which an expulsion order may be substituted is OK, but house arrest even after physical transportation back to the home country becomes possible is not.

AG Cruz Villalón declined to endorse the methodology established by Hungary and Ukraine for local border traffic, whereby a Ukrainian citizen could be denied entry into the Schengen area on the grounds that his cumulative period of stay would exceed a legal maximum. The AG argued that this approach was only consistent with Regulation 1931/2006 if fraud or abuse were shown. Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége v. Shomodi (NL, DE, FR)

Another asset freeze decision was shot down by the General Court. In Qualitest FZE v. Council, the General Court found that the Council had failed to state reasons with sufficient precision, and that the evidence it had provided in the course of litigation was in any event insufficient to support the asset freeze. If the Council wants to maintain the measure anyway, it has two months to appeal or enact a new decision.

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