This Week in Luxembourg

The Grand Chamber (Judge Juhász, the usual competition judge) upheld the General Court’s judgment in Tomkins v. Commission, where the General Court annulled a decision making the parent liable for the cartel infringement of its subsidiary for a period prior to acquisition of said subsidiary. Tomkins only has to pay from the moment it acquired Pegler Ltd. Commission v. Tomkins

The Grand Chamber (Judge Von Danwitz) also stood up for the right of all Europeans to see short news reports about Europa League games. In Sky Österreich v. Österreichischer Rundfunk, it held that art. 15(6) of Directive 2010/13 is not in violation of art. 16 and 17 Charter, which protect the freedom to conduct a business and the right to property, respectively, or art. 1 of Protocol 1 to the European Convention on Human Rights. Cf. IPKat Blog and the Recent Developments in European Consumer Law Blog

The Danish tax rates for seafarers case of 3F v. Commission (Judge Ó Caoimh) is fun particularly because it is already the second time the case is before the ECJ.

·         3F originally asked the General Court to annul the Commission’s state aid decision of no objection in January 2003. (Following a complaint made in August 1998.)

·         In 2007, the General Court dismissed the action as manifestly inadmissible, on the grounds that neither the union nor its members were individually concerned by the Commission’s decision.

·         This order was overturned – through the pen of Judge Ó Caoimh, in 2009. 3F v. Commission

·         On remand, the action was once again rejected, this time on the merits. By now it is September 2011. 3F v. Commission

·         Now, in January 2013, this judgment is upheld by the Court. 3F v. Commission

In Commission v. Spain (Judge Kasel) the Court holds that Spain failed to comply with a Commission Decision requiring it to recover unlawful state aid. Before it gets there, though, it discusses some issues to do with the doctrine of res judicata in EU law in order to decide to what extent the present action overlaps with Case C-499/99, Commission v. Spain (2002).

In a case dealing with state aid law in the context of bankruptcy proceedings, the Court (Judge Arabadijev) set aside the judgement of the General Court in Case T‑11/07 Frucona Košice v Commission, where that court had upheld the Commission’s finding of unlawful state aid. The Court held that the Commission had failed to take into account the duration of the bankruptcy proceedings in applying the private creditor test. The case is remanded for further examination. Frucona Košice v. Commission

The Court (Judge Toader) handed down another betting case, this time coming from Greece. The conclusion is that Greek law is found in violation of EU free movement law. Stanleybet et al. v. Ypourgos Oikonomias kai Oikonomikon and Ypourgos Politismou

AG Bot argued that the General Court was wrong to decide that a person whose assets had been frozen pursuant to the Al Qaeda asset freeze list could no longer sue to have that act annulled after their name was already voluntarily taken off. The AG argues that the applicant still has an interest in preventing a recurrence in the future, and that a positive outcome would rehabilitate him.

AG Sharpston tried to bring copyright law into the 21^st century in an opinion about German printers. (The devices, not the people.) VG Wort v. KYOCERA Document Solutions et al.

In the General Court, this week, there was another Bud case, this time on remand from the Court of Justice’s judgment from March 2011. This time, the Czechs lost. Budějovický Budvar, národní podnik v. OHIM Cf. IPKat Blog

Last Week in Luxembourg

Last week’s Grand Chamber judgment deals with two of my favourite things: The Aarhus Convention and Elchinov-style right to as prejudicial questions issues. Unsurprisingly, the Court (Judge Bay Larsen) concluded that the Slovak Supreme Court could even ask a prejudicial question while it was acting on remand from the Constitutional Court. As to substance, the Court concluded in favour of the plaintiffs, i.e. in favour of the environment. Križan et al. v. Slovenská inšpekcia životného prostredia

In Geodis Calrberson v. FranceAgriMer the Court (Judge Safjan) found that Article 16 of Commission Regulation 111/1999 is in the nature of an arbitration clause within the meaning of Article 272 TFEU. This means that the plaintiff in the original French case loses, and that they will have to start an identical case in Luxembourg to get the money they claim they are owed.

The Unfair Commercial Practices Directive is exhaustive in the sense that it precludes a national court from ordering the cessation of a commercial practice not covered by Annex I to that directive on the sole ground that the practice has not been the subject of prior authorisation by the competent administrative authority, without itself carrying out an assessment of the unfairness of the practice in question against the criteria set out in Articles 5 to 9 of that directive. Köck v. Schutzverband gegen unlauteren Wettbewerb

Mr. Zakaria had his papers checked extensively when he flew into Riga airport in 2010. Ultimately, he was allowed into the Schengen area, but he found his treatment “offensive and provocative”, and the delay caused him to miss his connection. So new he’s trying to figure out how to sue the Latvian border police. Unfortunately, he cannot rely on art. 13(3) of the Schengen Borders Code, because that only covers a refusal of entry.


In a case of significant importance, AG Kokott looked at the definition of a “regulatory act” under art. 263 TFEU, an issue so far tackled only by the General Court in its Microban judgment and in its Canadian seal products order. In her opinion, the AG endorsed the General Court’s interpretation, which held that legislative acts enacted through the normal legislative procedures were not “regulatory”. As a result, the trade in seal products continues to be banned. Inuit Tapiriit Kanatami and Others v. Parliament and Council

AG Mengozzi delivered four opinions on suits brought by the Commission against Council decisions under the state aids Regulation 659/1999 regarding aid for investment in the purchase of formerly state-owned agricultural land in four different new Member States. The problem in each case is that the Council cleared an aid scheme that the Commission thought they’d already forbidden. Commission v. Council (1, 2, 3, 4)


In the General Court, Bruno Grollnisch, MEP lost his suits against the Parliament’s decisions to lift his immunity and to not defend it. Grollnisch v. Parliament (FR) Cf. Journal du Marché Intérieur blog

More interestingly, the General Court examined a complaint by an Italian motorway company against a Commission decision not to pursue a state aid case against one of its competitors. The Court (Judge Pelikánová) concluded that the applicant was only partially individually concerned, which reflects some interesting issues regarding the extent to which motorways compete. To the extent that the case is admissible, it is rejected on the merits. Aiscat v. Commission (NL, DE, FR)


Earlier this month, there was a rare example of the use of art. 99 Rules of Procedure, whereby the Court may deal with an “easy” prejudicial question by reasoned order instead of with a full oral hearing and judgement. I feel confident in my prediction that this will happen more often in the future. Brunovskis v. Lauku atbalsta dienests (FR)