This Week in Luxembourg

ECJ judgements:

As was to be expected, the ECJ found the British treatment of the spouses of people on the terrorism list to be a bit harsh. The UK may not treat the live-in spouses of alleged terrorists as if they, themselves, were on the list, just because they might use their social security benefits to buy groceries for the household. M v. HM Treasury. The BBC story is here and the original House of Lords ruling is here.

The Third Chamber gave a rare ruling interpreting the trade laws established under the Yaoundé and Lomé Conventions in Camar, a case concerning Somalian bananas being imported into Italy. The Somalians lose: the import tax is not unlawful, and Italy is allowed to adjust it for inflation without violating the standstill clause.

In Commission v. Netherlands, the Netherlands was - again - judged to have violated the EEC-Turkey Association Agreement, this time because they maintained discriminatory fees for residence permits.

In Solgar, the Third Chamber discussed Directive 2002/46 on Food Supplements, including the intriguing possibility that a Member State might want to set the maximum amount for certain supplements at zero. (Which is what France had done with fluoride in this case.) The Court concluded that the MS retain the competence to legislate in such matters, as long as they jump through all the hoops established by the Directive (scientific risk assessment, etc.).

General Court judgements:

In the General Court, there was a series of challenges this week to the Commisison's cartel decision C(2005) 3452, regarding the market for industrial threads. (Summary, Press Release). In Amann & Söhne, in Gütermann and in Oxley, the decision was upheld, whereas in BST the fine was reduced from € 979.000 to € 856.600, since the Commission did not accurately take into account BST's cooperation. (They received 20% under the Leniency Notice of 1996, and the Court now increases that discount to 30%.)

Opinions:

In Akzo Nobel, AG Kokott considered the scope of the legal professional privilige in the context of a Competition Law investigation. The Commission had seized certain documents (emails between the general manager of a subsidiary and an Akzo in-house lawyer) which Akzo argued were covered by privilige. The General Court had dismissed that claim as unfounded, and Akzo appealed. Relying on the 1982 case of A M & S, the AG concluded that the GC ruling was correct. He was also unconvinced that the privilige should be extended relative to the current law. Akzo & Akcros v. Commission.

In Rosenbladt, AG Trstenjak discussed whether the "social partners" are allowed to set a mandatory retirement age in a collective bargaining agreement, or whether that would constitute age discrimination contrary to Directive 2000/78. She concludes that it is allowed, as long as there is a sufficient basis in the law, etc., etc. (NL, FR, DE)

This Week in Luxembourg

Two interesting Grand Chamber rulings this week:

In Commission v. Sweden, Sweden gets a slap on the wrist for showing a bit too much initiative internationally. Since the EU and the Member States are both parties to the Stockholm Convention on Persistent Organic Pollutants, they formally all have the right to propose an addition to the list of dangerous substances in Annex A. A Swedish proposal to add perfluaroctane sulfonate to the list went against the Council's stated position. This independent action by Sweden is now found to be in violation of Sweden's duty of sincere cooperation under art. 10 EC (now art. 4(3) EU).

In Federultility, the question concerned the Italian gas market. Under Italian law, there is still some regulation of prices, through the use of "reference prices". The Grand Chamber now ruled that some measure of state intervention is still permissible under Directive 2003/55, and that an intervention such as this one is permissible as long as it pursues a genuine "general economic interest", and does so in a way that is proportionate, as well as "clearly defined, transparent, non discriminatory and verifiable".

Other judgements:

The Fourth Chamber disagreed with AG Jääskinen on the idea of the British NHS offering financial incentives to doctors to get them to prescribe cheaper drugs. The AG was against, arguing that art. 94 of Directive 2001/83 is not, on its face, limited to third parties only. The ECJ now disagreed, referring to the right of the MS under art. 168(7) TFEU to stay in control of their own health care industries. Association of the British Pharmaceutical Industry.

In Dimos Agiou Nikolaou Kritis v. Ipourgos Agrotikis Anaptixis kai Trofimon, there was a bit of a disagreement over the definitions of "forest" and "other wooded land", and particularly the question of whether the definitions given in art. 3 ofRegulation 2152/2003 also applied outside the context of that Regulation. (They don't.)

Opinions:

Most importantly, AG Mazák released his opinion in the appeal in Deutsche Telekom v. Commission. In 2008, the CFI ruled that the competition laws could still be applied to Deutsche Telekom even though its behaviour had been approved (but not required) by the German telecoms regulator. The AG now agrees. Cf. my paper from February for more details.

AG Jääskinen wrote about the Framework Agreement on fixed-term work, which was negotiated by unions and employers' organisations at the European level, and annexed to Directive 1999/70. The interesting bit is the discussion of the second question, concerning the possible remedies in case the national law is found to be wanting (par. 58-71). The AG argues that instruments such as this one will not normally have direct effect, but that national courts are required to interpret the national law to minimise any inconsistency. Sorge v. Poste Italiane

AG Sharpston, finally, has an infringement case against Lithuania concerning the authorisation of medicinal products under - inter alia - the aforementioned Directive 2001/83. She agrees with the Commission that Lithuania should have revoked its pre-accession authorisation of a product called Grasalva, however, she also argues that the Commission should have never brought this case (par 155-163), given that the problem in question arose out of an accession SNAFU without anyone acting in bad faith. To quote her par. 161: Dura lex, sed lex. Commission v. Lithuania.

Destiny

Of course. Exactly on the day that I'm giving a presentation on Deutsche Telekom v. Commission, a case that has been pending before the European Court of Justice for more than 1½ years already, the Attorney-General Mazák will release his opinion. Sometimes it really does look like the Universe is out to get me.

UPDATE: The opinion was published online just at 12.00, when I was supposed to start my presentation. I was just able to print it and see that - as I predicted - the AG proposed dismissing the appeal.

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Concours part 1: Application

Don't ask...

This Week in Luxembourg

The big case this week is of course the Grand Chamber ruling in Bressol and Others, on discrimination based on nationality quotas for university admission. In the end, the court concludes that such discrimination is only conceivable in the context of medical training, where the defendant state (in this case the French-speaking Community in Belgium) can rely on the public health justification. It is clear, though, that the national court should be reluctant to find that public health concerns require such a quota system. (Cf. EUObserver)

The Fourth Chamber has followed AG Mengozzi in ruling that, under Directive 97/7 on Distance contracts, a consumer may not be charged for delivery if they invoke their right of withdrawal. Handelsgesellschaft Heinrich Heine. The First Chamber applied a similar consumer protection directive, Directive 85/577 on contracts negotiated away from the business premises, to a closed-end real property fund, much to the benefit of the defendant consumer. Friz.

Predictably, the Hungarian "vocational training levy" which charged the company for all its employees, including workers elsewhere in the EU, did not pass muster in the Third Chamber. CIBA

In Commission v. Germany, AG Trstenjak wrote about a German practice where collective bargaining agreements between unions and government entities locked in only a few financial institutions as providers of certain pension services, without any public tender. She concludes that this fact pattern is capable of falling within the remit of Community law, despite issues of horizontal effect, the fundamental right to collective bargaining, etc., but that the Commission has failed to meet its burden of proof as to the scale neccessary for EU law to apply. Germany wins, but on a technicality. (NL, FR, DE)

AG Bot has an opinion about number portability in telecommunications law: how does a national regulator judge whether the price charged to consumers for this service is proportionate in the meaning of art. 30 of Directive 2002/22? Polska Telefonia Cyfrowa sp. zoo (NL, FR, DE)

This Week in Luxembourg

The most important case this week was clearly the Google AdWords case. AG Maduro had concluded for Google, but the Grand Chamber disagrees on some points. As regards the regular search, it is clear that there is no trademark infringement. But in response to the Adwords questions, the ECJ does seem to favour some form of contributory infringement, something the AG had rejected. Where the ad in question suggests a link between the third party and the trademark holder, or is confusing in this regard, the trademark holder may prohibit the ad. (EUObserver, NRC blog,Businessweek, )

The Google ruling was immediately applied by the First Chamber in the BergSpechte case. As long as the ad makes clear that the product offered does not come from the trademark holder, the defendant is allowed to purchase the plaintiff's trademark as a Google AdWord.

In Commission v. Netherlands, the Commission argued that the provision of personnel by Dutch government entities to the Euregio's should be subject to value added tax. They lost, but not because the argument was as such not viable. Instead, they simply failed to prove that the activity in question took place on a market in the meaning of the 6th VAT directive, etc. (NL, FR)

AG Jääskinen thinks the Commission should lose its appeal against the CFI's ruling in case T-266/02, Deutsche Post v. Commission. If the court agrees, the Commission's state aid decision stays annulled. The difficulty concerned the method used to calculate whether Deutsche Post had simply been compensated for providing a Service of General Economic Interest (cf. the Ferring precedent), or whether it had in fact received illegal state aid. Commission v. Deutsche Post (NL, DE, FR)

Following her opinion in VTB-VAB (ruling here), AG Trstenjak again discusses Directive 2005/29 on unfair b2c commercial practices. A preliminary problem is the question whether the national (Austrian) law falls within the scope of the Directive in the first place, given that it also seeks to protect the pluriformity of the press (i.e. protect competitors as well as consumers). Otherwise, the rule is again that the directive constitutes full harmonisation, meaning that some of the more drastic rules under consideration fall foul of EU law. Mediaprint (NL, DE, FR)

In competition law and procedure, AG Mengozzi handed down an opinion in the Belgian VEBIC case. The question concerned the right - under Regulation 1/2003 - of a national competition authority to intervene in a case where the lawfulness of one of its decisions was under dispute, and possibly its obligation to do so. Referring to last June's X BV case, and his opinion in that case, the AG argues that the NCA should be able to defend its decision, but that there is (ordinarily) no obligation to do so. This answer is independent from the NCA's status as a judicial or administrative body. (NL, DE, FR)

This Week in Luxembourg

The new transfer system in football survived an attack by Olympique Lyonnais before the Grand Chamber this week. The French system, however, was not so lucky. Olympique Lyonnais v. Olivier Bernard. (See also this Dutch blog postabout the case, and the BBC story here.)

According to the Eighth Chamber, a "cinema" where you watch the movie on your own, in a cubicle, starting the movie when you please by inserting a coin is not "admission to a cinema" within the meaning of the 6th VAT Directive, meaning that such a cinema does not qualify for the low VAT rate. Erotic Center v. Belgium. (See also the BBC story on this case.)

Interpreting art. 34 of the Universal Service Directive (Directive 2002/22), as well as the "principle of effective judicial protection", the Fourth Chamber found that an Italian law that made admissibility of a case in the area of electronic communications dependent on whether the parties had first attempted to settle out of court was not fundamentally incompatible with Community Law. The Court did, however, make some substantial demands. Alassini.

While the ruling in X Holding recently upheld a possibly discriminatory element of the Dutch tax laws, today's ruling inGielen goes the other way. The manner in which the "hours worked" of a self-employed person are calculated for the purposes of corporate income tax is judged to be unjustifiably discriminatory.

In Trubowest, the Fourth Chamber upheld the CFI's ruling on appeal. The case concerned a non-contractual liability claim arising out of a cartel and dumping case. The ECJ agreed that the EU courts did not have jurisdiction over some of the claims, while for others the requisite causality was missing. Notably, the ECJ ruled that the CFI was entitled to examine causality before the alleged illegality of the acts in question. (par. 40-50) Citing Lucaccioni, the ECJ ruled that there was no requirement to examine the elements of a 288 claim in any particular order.

In the General Court, the Eighth Chamber ruled in two Belgian state aid cases, Centre de coordination Carrefour andForum 187. In both cases, the action was declared inadmissible for lack of interest in fact.

This Week in Luxembourg

The Grand Chamber ruled in the first polluter pays case under Directive 2004/35, the ERG cases. The rulings largely track the answers proposed by AG Kokott in October, while occasionally adding some nuance, for example that the national court might find applicability ratione temporis of the directive, which the AG had ruled out, or that a somewhat stronger showing of causation is necessary. (Case C-378/08 and joined cases 379/08 and 380/08.)

The Grand Chamber also found against Germany in infringement proceedings based on art. 28(1) of the data protectiondirective 95/46. Contrary to the requirement of the directive, the state (= Land) supervisory agencies were not completely independent from the state. Commission v. Germany.

The Third Chamber found a (relatively) new Italian rule setting a minimum distance between petrol stations an infringement of the freedom of establishment (art. 49 TFEU). From a procedure point of view, note the potential mootness problem caused by the fact that the relevant law is no longer in force (par. 26-31). Attanasio Group Srl v Comune di Carbognano.

In Wood Floor Solutions, the Third Chamber gave guidance regarding art. 5(1) of the Brussels I Regulation. The Court found no difference between its existing case law regarding contracts to be performed in a number of different places within a single MS, and the case at bar where performance was in a number of different MS. The result is not very helpful, given the objective of predictability, since it means the defendant can be sued at "the place of the main provision of services", wherever that is. (cf. par. 40 and 41).

The Third Chamber also ruled in a telecommunications case, where the Polish authorities wanted to go after Telekomunikacja Polska for allegdly illegal bundling. The ECJ ruled that the Polish approach was consistent with the relevant telecom directive, Directive 2002/20, but that it fell foul of a directive that the referring judge had not mentioned,Directive 2005/29 on unfair b2c commercial practices. Under the latter directive, Poland is not allowed to impose a blanket ban on combined offers. Telekomunikacja Polska v. Prezes Urzędu Komunikacji Elektronicznej.

The Fourth Chamber considered the problem of a national court asked to order the recovery of state aid when the Commission Decision that declared the aid to be compatible with the Common Market (even though it had not been notified), had been annulled by the Community Courts, but the Commission had not yet taken a new Decision. In those circumstances, the ECJ ruled, the national court has to proceed with the recovery, instead of waiting for the Commission (and the Community Courts) to make up their minds. CELF v. SIDE

AG Mengozzi wrote a rare opinion about the protection of biotech patents under Directive 98/44. Monsanto tried to use its European patent to block the importation of soy meal from Argentina, where its invention was not defended by any intellectual property right. The AG proposes that the patent only extends to the time when the gene sequence "functions" as described in the patent, meaning that Monsanto should lose. He also argues that the directive aims at full harmonisation. Monsanto v. Cefetra (Dutch, German, French)

AG Jääskinen wrote about Italian pharmacy regulation, arguing that Italy is free under EU law to restrict their opening hours. Sbarigia v. Azienda USL RM/A. (Dutch, German, French)

Today in Luxembourg

In the curious Rottmann case, the Grand Chamber on Tuesday followed AG Maduro and ruled that Germany could take away mr. Rottmann's citizenship on the grounds that it was obtained through deception, even though this would leave him stateless, as long as doing so does not violate the principle of proportionality. Whether this means that Austria has to take him back is a different story, and one that is yet to be decided. Rottmann v Bayern.

The Grand Chamber also ruled that refugee status under Directive 2004/83 may be removed when the threat that gave rise to such status no longer exists, even if this threat has now been replaced by a new threat. The case concerned Iraqis who had flead the regime of Saddam Hussein. Under the current regime, they may still have legitimate grounds to fear persecution, but that is a matter that will have to be evaluated anew, based on the same standards of proof, etc., as when they were first awarded refugee status. Abdulla et al. v. Germany. (Cf. AG Mazák's opinion.)

The Fourth Chamber condemned Italy for the waste collection mess in Napels and the rest of Campania. Italy's failure to take adequate measures to ensure that the waste was recovered, etc., is an infringement of art. 4 and 5 of Directive 2006/12. Commission v. Italy.

In Chakroun, the Second Chamber gave some guidance on family reunification under Directive 2003/86. The Dutch government may not distinguish between family relations that arose before or after the sponsor came to the Netherlands in applying the income requirement, and it may not require that the sponsor's income also suffice to exclude him from the (extraordinary assistance) "minimabeleid".

In Commission v. Ireland, the latter was condemned for having legal minimum prices for tobacco products instead of the proportional tax required by Directive 95/59. Just to make things interesting, Ireland was also condemned for being insufficiently forthcoming with information in violation of art. 10 EC. In separate cases, the Third Chamber also condemned a similar policy maintained by Austria and France.

In the General Court, the Commission won two related pre-crisis German banking state aid cases, Bundesverband deutscher Banken v Commission (T-163/05) and Bundesverband deutscher Banken v Commission (T-36/06). Both cases concerned a transfer of public assets from the Land Hessen to the more or less public entity Landesbank Hessen-Thüringen Girozentrale (Helaba), which the Commission decided was mostly in order, since almost the entire deal was on terms that were similar to what the bank could have gotten from a private investor.

The Commission also won a non-contractual liability case regarding its decision - later anulled - banning the use of amfepramon in medicine for human use. Artegondan v. Commission (Dutch, French, German)

Also in the General Court, the French steelmaker Arcelor took on the Community's emissions trading scheme and lost. In order to get around its Plaumann problem, Arcelor argued the "higher rule" cases such as Piraiki-Piraiki, Sofrimportand UEAPME, but to no avail. As far as the claim for damages is concerned, the Court ruled that, whatever violations of the law may exist, they are not "sufficiently serious" to give rise to a claim for damages. Arcelor v. Parliament & Council.

AG Mengozzi now also joined the gambling fray. Following the line set out by the Court and by AG Bot, he also argues for the Member State's right to regulate the industry. Markus Stoß et. al v. Baden-Württenberg et al. (Dutch, German,French) and Carmen Media Group v. Schleswig-Holstein (Dutch, German, French) Last week, AG Bot delivered a new opinion in Sjöberg, which again defends the right of the MS to regulate this industry, while AG Mazák considered a gambling case, Engelmann, where he argued that some aspects of the Austrian regulatory regime for casinos went too far.

AG Sharpston authored an opinion discussing art. 12 of Directive 2004/83, as applied to a would-be Palestinian refugee in Hungary. Essentially, the question is whether the availability of UN refugee assistance in the country of origin precludes refugee status under the Directive. The AG argues that this is not the case, unless the refugee actually availed herself from such assistance. Bolbol.

Last week, a few issues came up that I already flagged before:

In the Brita case, the Court followed AG Bot and said that the MS are entitled to say that goods produced in an Israeli settlement on the West Bank are not Israeli for the purposes of the EC-Israel association agreement.

In the X Holding Case, the Second Chamber followed AG Kokott and signed off on the Dutch system whereby resident subsidiaries can be combined with the holding company to form a single tax entity, while non-resident subsidiaries cannot.

On Tuesday the Court ruled in two British free movement of workers cases, Ibrahim and Texeira, both of whichconcerned the limits of the notion of a "worker". In both cases, the plaintiff was allowed to stay in the UK.

Finally, the 4th Chamber ruled in Car Trim, a case on jurisdiction under the Brussels I Regulation. Like AG Mazák, the ECJ refused to let the fact that the relevant contract was quite specific as to "the provision, fabrication and delivery of the components to be produced" turn it into a services contract somehow. More problematically, the place of delivery can, in the court's estimation, still be the place where the goods were transferred to the first carrier, although the court expresses a preference for the place of final destination. (Assuming the contract doesn't say.)

Today in Luxembourg

Following the ruling - last November - in Grimme, the ECJ again has a case concerning the rights of Swiss persons in the common market. As in the earlier case, the argument runs along the lines of "if Switzerland doesn't want to join the EEA, that's fine, but it's their loss", meaning in this case that the freedom to purchase immovable property in EU countries is limited to natural persons, excluding legal persons. Fokus Invest v. FIAG.

AG Jääskinen takes on the British NHS, in their efforts to curtail health care costs by inducing doctors to prescribe certain medicines but not others. According to the AG, they may ask nicely, but they may not implement an incentive scheme, because art. 94(1) of the Community Code relating to medicinal products for human use (Directive 2001/83). It seems to me like that provision was written with inducements by insurers or pharmaceutical companies in mind (cf. par. 52-55), so I'm not sure the ECJ wil go for it. Ass. of the British Pharmaceutical Industry.

In competition law, AG Mazák considered the appeal in the plasterboard market cartel case. In Knauf Gips, there were issues regarding the relevant "economic unit", which would or would not be responsible for an ongoing long-term price-fixing cartel, depending on how the economic unit was defined. (The AG proposed affirmation.) In Lafarge, there was a reasoning problem requiring annulment and, more interestingly, the question of whether someone can be considered a repeat offender if the second offence predates the ruling on the first. (par 98-116) According to the AG, they can be.

On Tuesday, AG Trstenjak considered a very amusing problem: Knowing how trademarks are turned into domain names under Council Regulation 733/2002, establishing the .eu top level domain, and under art. 11 of Commission Regulation 874/2004, the claimant got the Swedish authorities to accept &R&E&I&F&E&N& as a trademark, which he then used as a "prior right" in order to register www.reifen.eu. The AG is having a difficult time seeing how this trick could be challenged in court, except by having the trademark annulled in Sweden. Internetportal und Marketing GmbH v. Richard Schlicht.

Last Thursday, February 4, the Second Chamber ruled in another Turkish free movement of workers case, following the case of Bekleyen v. Land Berlin on January 21. Here, the question is whether the plaintiff should be considered a worker under Decision 1/80, given the fact that she only worked part-time, and that the income thus obtained only added up to about 25% of the legal subsistence wage. The ECJ ruled that she did qualify as a worker. Hava Genc v. Land Berlin.

AdjudicatingEurope has a series of posts on the recent Kücükdeveci ruling: Part 1, part 2 and part 3. There's also this post on EU Law Blog and this one by Julien Frisch. Next week, the Dutch ministry of Foreign Affairs will have a lunch meeting about the case, where Ms. Mirjam de Mol will speak. (Link.)