Thursday, May 30, 2013

This Week and Two Weeks Ago in Luxembourg

The Grand Chamber (Judge Rosas) this week again concerned itself with the issue of asset freezes. In this case, it held that the General Court had erred by holding that Abdulbasit Abdulrahim no longer had standing to sue to have his name removed from the sanctions list because, since he commenced proceedings, his name had already been removed from the sanctions list. The Grand Chamber argued that the applicant had a separate interest in the retroactive effect that a victory in court would produce, as well as in the support such a judgment would offer for any damages suit. Abdulbasit Abdulrahim v. Council

The Court (Judge Šváby) upheld a General Court finding that the Commission failed to act in a state aid case brought by Ryanair against Italy. I must say that the two years between the initial complaint and the action before the General Court seems short to me, given how long the Commission usually takes to handle competition cases. Commission v. Ryanair

In its 1st Railway Package cases, the Commission achieved another (partial) win, this time against Poland. The Court (Judge Borg Barthet) agreed that the Polish system for access pricing left somewhat to be desired. Commission v. Poland

In one of the more optimistic trademark actions I’ve ever seen, You-Q BV litigated all the way up to the Court of Justice in order to win the right to use Beatle as a trademark. Just like OHIM and the General Court, the Court found for Apple (the record company, that’s irony right there). In fact, the case was summarily dismissed as in part manifestly inadmissible and in part manifestly unfounded. You-Q v. OHIM

The Italian public procurement case of Consulta Regionale Ordine Ingegneri della Lombardia e.a. v. Comune di Pavia (FR), where the city of Pavia gave a contract for the provision of services to the local university without a public tender, does not seem so obvious to me that it could be handled in an order, but the court disagreed. The City (probably) loses.

For people who are amused by the mess that can occur when different Member States have different rules for deciding where an alleged tort was committed there is this month’s Melzer v. MF Global (Judge Safjan), which is handled by a court in Berlin even though the most straightforward locus delicti is London. The Court held that the case should be moved to the UK. Cf. Regulation 44/2001.

“A decision by which a national authority extends to all traders in an agricultural industry an agreement which, (…) introduces the levying of a contribution in an inter-trade organisation recognised by that national authority, thus rendering that contribution compulsory, in order to make it possible to implement publicity activities, promotional activities, external relations activities, quality assurance activities, research activities and activities in defence of the sector’s interests, does not constitute State aid.” (Judge Juhász) Doux Élevage SNC and Coopérative agricole UKL-ARREE v. Ministère de l’Agriculture and Comité interprofessionnel de la dinde française (CIDEF)

The Court (Judge Lõhmus) spent some time on the obligation to assess the suitability or appropriateness of the service to be provided under art. 19(9) of the financial instruments directive 2004/39. Genil 48 et al. v. Bankinter et al.

The Court (Judge Ilešič) also considered the issue of detention for illegal aliens pending their return to their home country. It held the illegal immigrants Directive 2005/85 does not apply to an alien who has asked for asylum, meaning that detention is precluded under Directive 2003/9 unless abuse of right can be shown. Arslan v. Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie

In more asylum law, the Court (Judge Bay Larsen) held that nothing in Regulation 343/2003 (Dublin II) forbids a Member State from considering a given application for asylum. It is not required, however, to ask for the opinion of the Office of the United Nations High Commissioner for Refugees about the decision whether or not to consider the application, or whether to send the asylum seeker back to Greece. Halaf v. Darzhavna agentsia za bezhantsite pri Ministerskia savet

The Court (Judge Berger) applied the unfair consumer contract terms directive 93/13 to a tenancy agreement. It ended up aligning the procedural implications of that directive with national rules regarding the public policy exception in contract law. However, when it comes to remedies it rejected the Dutch court’s approach of reducing the contractual damages owed, requiring instead that no damages award be imposed at all. Asbeek Brusse and De Man Garabito v. Jahani BV Same directive, same judge: Jőrös v. Aegon Magyarország Cf. Recent developments in Eurpean Consumer Law Blog

The Court (Judge Lõhmus) imposed a € 3 million penalty on Sweden for non-compliance with a previous judgement. The original case was about Directive 2006/24. Commission v. Sweden Cf. Verfassungsblog and the e-comm blog

In Jeremy F. v. Premier Ministre (FR), the Court (Judge Silva de Lapuerta) did a nice nuts & bolts EAW judgment. Cf. this article and Courthouse news

AG Bot proposed holding for the Parliament in its dispute with the Council over the way budgets should be decided. The problem is that the preamble and section 9 of art. 314 TFEU appear to envisage different ways in which the procedure is to be concluded. On balance, the AG placed more weight on section 9 and argued that no single legislative act, signed by the presidents of both institutions, was necessary. Council v. Parliament (NL, DE, FR)

Commission v. Portugal (NL, DE, FR) is the first ever case about the implementation of a penalty payment imposed under art. 260 TFEU. The Commission decided that Portugal should pay 142 days x € 19.392 = € 2.753.664, but this decision was annulled by the General Court. AG Jääskinen agreed, both with the General Court’s interpretation of its authority under art. 260 TFEU and with its interpretation of the original judgment.

Discussing the right of the Council to refuse access to certain legislative documents (things that show which delegations submitted which amendments, as always), AG Cruz Villalón spent most of his time on the General Court’s balancing of interests. In the end, he concluded that the General Court had been right to find for the plaintiff. Council v. Access Info Europe

That AG also gave an opinion on some issues to do with the liquidation of Landsbanki. Société Landsbanki Islands HF v. Kepler Capital Markets SA and Frédéric Giraux

AG Wahl took the concept of a Regulation 44/2001 mess to a whole new level in a case where the German courts are trying to decide which of two conflicting Romanian decisions to enforce. Theoretically, art. 34(4) of the Regulation offers a solution to this kind of situation, but the AG argues – not implausibly – that this article does not apply to a situation where the two conflicting judgements are from the same Member State. Salzgitter Mannesmann Handel GmbH v. SC Laminorul SA

AG Wahl also gave his opinion in a case that might strike the reader as a bit unfair: Peter Brey sues the Austrian Pensionsversicherungsanstalt because they refuse to given him – a German citizen – the compensatory supplement to his pension that Austrians would receive, and the Pensionsversicherungsanstalt turns around and argues that, as someone claiming social assistance, Mr. Brey has no right to live in Austria in the first place. AG Wahl started by citing AG Jacobs in Konstantinidis but ended up concluding that the Pensionsversicherungsanstalt was right to call the supplement “social assistance”. Fortunately, he also concluded that that doesn’t matter until Austria actually throws Mr. Brey out. Brey v. Pensionsversicherungsanstalt Cf. (the end of) this Open Europe Blog post

In litigation about the German Volkswagen Law, AG Wahl is sufficiently uncertain about his conclusion that Germany complied with the Court’s judgment in Case C-112/05 that he discusses financial penalties as well. That is actually the most interesting part, because he discusses how the fact that the original judgment is potentially unclear and the fact that the Commission took its sweet time brining this action should be taken into account. (Par. 63-88) Commission v. Germany

Italy, because it’s Italy, has a stricter limit for the amount of advertising allowed to pay-tv than for free-to-air. AG Kokott concluded that that is (probably) in violation of art. 4(1) of Directive 2010/13, but not a violation of free market law in general. Sky Italia

AG Mengozzi concluded that the Swedish rule for punishing people who are tardy surrendering their ETS credits is overly harsh. Billerud v. Naturvårdsverket (NL, DE, FR)

In a stack of litigation involving state aid to Dutch “woningcorporaties”, AG Wathelet argued that the General Court was wrong to hold that some of them were inadmissible, especially given that that court had not examined the possibility of applying the new standing rule of art. 263(4) TFEU. For the cases that had been examined substantively by the General Court, the AG generally proposed upholding the judgment. Stichting Woonlinie et al. v. Commission (NL, DE, FR) and Stichting Woonpunt et al. v. Commission (NL, DE, FR)

AG Sharpston proposed holding that the General Court took too much time for the industrial bags cartel case, without however proposing any immediate consequences for that fact. Rather than reducing the fine, she argues that the better approach is to have the applicants bring a separate action for damages. Groupe Gascogne SA v. Commission, Gascogne Sack Deutschland v. Commission and Kendrion v. Commission

According to AG Kokott, it is perfectly fine for Finland to regulate a given product as a medicinal product under Directive 2001/83 while every other Member State considers it a medical device under Directive 93/42. Laboratoires Lyocentre

The General Court again annulled a set of asset freezes in Trabelsi et al. v. Council. In Parker v. Commisison, MRI v. Commission (NL, DE, FR) and Trelleborg v. Commission it partially (a small part) annulled two Commission decisions in the marine hoses cartel case.

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