Wednesday, December 19, 2012

Today in Luxembourg

Today the Court handed down its last judgements before its Christmas vacation:

The Grand Chamber (Judge Bay Larsen) clarified the meaning of art. 12(1)(a) of Directive 2004/83 in a case about three Palestinian refugees. Do they qualify as refugees, given that they originally qualified for UN support in a refugee camp in the region, but had to leave for reasons beyond their control? El Kott et al. v. Bevándorlási és Állampolgársági Hivatal

The Grand Chamber (Judge Šváby) also looked at an Italian public procurement case (cf. Directive 2004/18), where the Azienda Sanitaria Locale di Lecce asked the university of Salento to study the earthquake-sensitivity of various hospitals without a formal tender. While punting to the national court, the ECJ says that such tender-less contracting between public entities is not OK:  
“[1] where the purpose of such a contract is not to ensure that a public task that those entities all have to perform is carried out,
“[2] where that contract is not governed solely by considerations and requirements relating to the pursuit of objectives in the public interest or
“[3] where it is such as to place a private provider of services in a position of advantage vis-à-vis his competitors.”

For the second time in as many weeks, the Court handed out a fine for non-compliance with a judgement. Following last week’s Commission v. Spain (€ 20 million + € 50.000 per day), now it is Commission v. Ireland (Judge Bonichot), to the tune of € 2 million + € 12.000 per day. The offending case is Commission v. Ireland (2009, also by Judge Bonichot) about Directive 75/442 on waste. In a separate case, Ireland was ordered to pay a further € 1,5 million for failing to comply with a 2006 infringement case about environmental impact assessments. Commission v. Ireland (Judge Toader)

Heineken (NL, FR) and Bavaria (NL, FR) lost their appeals in the Dutch Beer Cartel case (NL). (Both judgements by Judge Silva de Lapuerta.) The General Court had annulled the non-price collusion part of the decision, and had ordered a further reduction of the fine as compensation for the extraordinary length of the procedure. Cf. Case T-240/07, Heineken v. Commission and case T-235/07, Bavaria v. Commission.

In the interesting state aid litigation of Mitteldeutsche Flughafen and Flughafen Leipzig v. Commission, the appeal was likewise rejected (judge Jarašiūnas). As before the General Court (NL, DE, FR), the appellants failed to convince anyone with their claim that airport construction is not an economic activity. Cf. European Law Blog

The Court (Judge Lõhmus ) affirmed that a trademark can be put to “genuine use” even if it is used in only a single Member State. Leno Merken v. Hagelkruis Cf. the IPKat

In the category of “really?” we have Gbagbo et al. v. Council, where Laurent Gbagbo and his associates are trying to get their asset freezes annulled. The General Court struck the cases from the docket on the grounds that they were manifestly inadmissible because they were untimely. Gbagbo argued that he didn’t know about the Decision in question in time, because of distance and because of the war (!). AG Cruz Villalón now argues that the General Court should have at least heard the parties on this point.

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