Saturday, March 09, 2013

This Week in Luxembourg

In ITV v. TVCatchup, the Court (Judge Malenovský) once again endeavours to bring (TV) copyright into the internet age. It argues that the copyright Directive 2001/29 does not give ITV the right to forbid TVCatchup from live streaming its broadcasts over the internet to people who are already allowed to see them on TV. (Because they live in the UK, have a TV license, etc.)  Cf. IPKat and ECJBlog

Following last week's Ettwein, this week normal order is restored as far as EU-Swiss relations go. For the last 12 years, Zürich airport has suffered from not being in the EU, while its approaches are. The fact that there is an EU-CH Air Transport Agreement has not helped. Switzerland tried diplomacy, but they also sued in the General Court to annul Commission Decision 2004/12. And lost. And now they lost on appeal as well. Switzerland v. Commission (NL, DE, FR) Cf. European Law Blog

Those who are interested in REACH, and in waste that ceases to be waste, may read Lapin elinkeino-, liikenne- ja ympäristökeskuksen liikenne ja infrastruktuuri -vastuualue v. Lapin luonnonsuojelupiiri ry (Judge Bonichot) For more REACH, see below.

Surprisingly, Goldbet Sportwetten v. Sperindeo (NL, DE, FR) is not actually about gambling. Instead, it concerns the relationship between a European order for payment under Regulation 1896/2006 and the normal rules of jurisdiction under Regulation 44/2001. According to AG Bot, it is all very simple: once you dispute an order for payment, the debt is no longer undisputed, meaning that the normal procedure applies. However, doing so does not count as making an appearance in the normal procedure so as to give a different court jurisdiction under art. 24 of Regulation 44/2001.

AG Sharpston explained that putting photovoltaic cells on someone's house is an economic activity for VAT purposes to the extent that you're using that installation to feed electricity back into the network for consideration. Obviously, this is a good thing rather than a bad thing for the homeowner, because this means that the VAT on the cost of the installation may be recovered. Finanzamt Freistadt Rohrbach Urfahr v. Unabhängiger Finanzsenat Außenstelle Linz

In the General Court, Poland sued over ETS and lost.

Moreover, there were four unsuccessful actions for annulment against the European Chemicals Agency (ECHA) under the REACH Regulation, the first four of their kind to make it to a full judgement, with the only previous case law being orders dismissing cases as inadmissible. In each case, ECHA argued unsuccessfully:

  • that the legal act in question was not intended to produce legal effects vis-à-vis third parties, since it was merely an "agreement of the Member State Committee",
  • that the act was not of direct concern to the applicants, (cf. the orders in Borax Europe v. ECHA and Etimine v. ECHA from 2011), and
  • that the act did not fall in the category of "a regulatory act which does not entail implementing measures" under art. 263(4) TFEU.

On substance, however, the applicants lost each time. The judgements, by the Judge who will presumably be the REACH-judge from now on, Judge Dittrich, are: Rütgers et al. v. ECHA, Cindu Chemicals et al. v. ECHA, again Rütgers et al. v. ECHA, and Bilbaína de Alquitranes et al. v. ECHA

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