This Week in Luxembourg

Even though at its face it is yet another failed attempt to get out of a competition fine, this week's Akzo Nobel v. Commission contains some important remarks regarding legal professional privilige. The Grand Chamber repeats its earlier conclusion - from par. 24 of AM & S Europe v. Commission - that this privilige does not extend to in-house lawyers. Cf. Kartellblog.de

Lego again failed to get its design registered as a Community Trade Mark, given that the Grand Chamber rejected its appeal against the CFI's ruling in case T-270/06. The design of a Lego brick is not eligible for protection as a Trade Mark because "the sign consists exclusively of (...) the shape of goods which is necessary to obtain a technical result". (art. 7(1)(e)(ii) of Regulation 94/40) Lego Juris v. OHIM

Opinions:

The Commission finally took on its most feared opponents: the notaries. It looks as if those champions of the lobby have finally met their match in AG Cruz Villalón, who argues that the rule that exists in a number of MS which reserves the job of notary for citizens of that MS is not justified by the official authority exception of art.51 TFEU, because the restriction is not proportionate to, euh, something. He does make an exception for Portugal, and he also sides with the notaries on Directive 2005/36, which - of course - contains an exception for notaries, albeit in the recitals. Commission v. Belgium.

In General Química v. Commission, AG Mazák proposed upholding the appeal only on the point of who exactly is liable for the cartel fine in question. Only the subsidiary should be liable, he argues, relying on an earlier incarnation of Akzo Nobel v. Commission.

In Francesco Guarnieri & Cie v. Vandevelde Eddy VOF, AG Sharpston considers the cautio judicatum solvi, the obligation in certain circumstances to give security for costs. She seems less than enthusiastic, but comes out generally in support of the Belgian rule, given that the case in question concerns a non-EU plaintiff. (He is a Monegasque.) In a purely EU setting this obligation would certainly fall foul of art. 12 EC, but she AG argues that its effect on trade is too uncertain for it to be a measure having equivalent effect.

Surprisingly, AG Cruz Villalón sides with Anheuser-Busch in yet another BUD case. As far as I know, the Community Courts have always sided with the Czechs, but now the AG argues that there are serious problems with the CFI's findings of fact regarding the quantity and quality of use of the brand prior to registration. Anheuser-Busch v. Budejovicky Budvar.

In other beer news, there is also another installment in the Bavaria saga. Following last year's Bavaria and Bavaria Italy, AG Mazák now further clarifies the clash between trademark and PGI, given that the latter was obtained through a simplified procedure. The prior claim wins, but which date counts? The date of the initial simplified procedure or the date of the Council Regulation affirming? The AG argues for the latter, to the obvious benefit of the Dutch. Cf. art. 14 ofRegulation 510/2006. Bayerische Brauerbund.

AG Jääskinen has an opinion on Belgian anti-tampering measures for two- or three-wheel vehicles, specifically those vehicles intended for use in competitions. Apparently, while EU law is generally symathetic to efforts aimed at stopping people from tuning up their mopeds, when a MS goes beyond the basic scope of Directive 2002/24, it starts to run into potential free movement trouble. Lahousse and Lavichy.

General Court:

In TF1 v. Commission, the applicant's action for annullment of the Commission's decision not to raise objections was declared inadmissible. The notable thing is that the General Court's argument was that the applicant had not shown that "its competitive position was substantially affected", which is in all likelihood true, but also a conclusion that comes very close to a decision on the merits. The case concerned an aid scheme for cinematographic and audivisual production.

In one of those cases that highlight an area of the law we don't normally realise exists, the Sixth Chamber annulled a decision by the Board of Appeals of the Community Plant Variety Office, which refused a plant variety right for the Gala Schnitzer apple variety. (The CPVO's initial decision had favoured the applicants.) Cf. Regulation 2100/94. The case isSchniga GmbH v. CPVO.

And finally, from Strasbourg and by popular demand: Sanoma Uitgevers v. The Netherlands. The Grand Chamber held that the manner in which the Prosecutor's office could demand the footage from an illegal street race without any need for a court order was a violation of the freedom of the press under art. 10 ECHR. The decision was unanimous, with the Dutch Judge Myjer writing separately only to explain why he changed his mind since the chamber judgement.

Kreun...

This Week in Luxembourg

On Wednesday, the Grand Chamber (Judge Schiemann) ruled in three German gambling cases, all concerning the German system of national monopolies for gambling under the 2004 Staatsvertrag zum Glücksspielwesen in Deutschland, a "treaty" between the Länder governing this area of the law. (Cf. this BBC story.)

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In Winner Wetten, the court in Köln had already made all the findings of fact that would make the NRW-law in question unlawful under Gambelli, but was asking merely whether an exception to the principle of primacy might be made during the transition period created by a 2006 Constitutional Court ruling (English), which required the 2004 Staatsvertrag to be replaced with a new one. Unsurprisingly, the ECJ - like AG Bot - declined to create an exception to the principle of primacy.

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In Markus Stoß, too, the referring courts (in Gießen and Stuttgart) expressed doubts about whether the legal limitations in question were "consistent and systematic". The Court gives guidance on this point, while reiterating that there is no duty of mutual recognition in this area. Note also the answer to part (i) of question 1: A MS does not need a justification that predates the offending law: as long as they have the evidence to back up their claims now, that is enough. (par. 70-72)

·	In Carmen Media, a case from Schleswig-Holstein, the referring court was more neutral in its questions, and focused only on art. 49 EC. The resulting guidance is - obviously - similar to that in Markus Stoß.

·	Finally, the Fourth Chamber, again with Judge Schiemann as rapporteur, ruled in the Austrian case ofEngelmann that an MS may not restrict concessions for gambling establishments to domestic operators, and must award them in a transparent and competitive procedure.

AG Cruz Villalón has an opinion that seems simple enough, but that has some interesting aspects all the same. The Slovak Republic had failed to recover certain unlawful state aid because it ran into trouble before its own courts. The Slovak courts refused to issue an order reinstating a tax debt that had previously been written off, because that settlement was part of a settlement decree with various creditors and thus had the force of res judicata. After careful consideration, the AG concludes that Slovak law ought to allow for recovery in this situation anyway, the principle of legal certainty notwithstanding. Commission v. Slovakia.

AG Yves Bot has an opinion about the concept of "same acts" for the purposes of double jeopardy & European Arrest Warrants. (Cf. art. 3(2) of the Framework Decision) He claims for the European judiciary the right to decide what is or isn't a "same act" - i.e. he argues that it is an autonomous notion of Union law - and he argues that in the case at bar double jeopardy has not attached. Gaetano Mantello (NL, DE, FR)

AG Mengozzi, in applying Directive 84/450, as modified by Directive 97/55, defends a supermarket's right to say that its products are cheaper than those of its competitors, assuming of course "a sufficient level of interchangeability" between the products in question. In other words, the products do not have to be identical for them to be compared. Lidl v. Vierzon (NL, DE, FR)

AG Mazák explains that a contract is a concession agreement under Directive 2004/18 whenever the payment for services rendered is not made directly by the government or any organisation connected to it. The case concerned emergency medical services in Bavaria. (Cf. last year's Eurawasser for a similar problem.) Privater Rettungsdienst und Krankentransport Stadler (NL, DE, FR)

In the General Court the Council lost a Dutch terrorism-asset freezing case brought by the Al-Aqsa foundation, because the national basis for the European decision had been repealed years ago. Basically it's a procedural mess. (par. 148-184) Al-Aqsa v. Council.

Also, there are some competition cases, such as Tomra Systems, whose fine of € 24 million for abuse of dominance (exclusivity agreements, quantity commitments and loyalty rebates) was upheld against mostly fact-based challenges and Deltafina v. Commission, whose cartel fine of € 11.800.000 was reduced to € 6.120.000 because the Court determined that there was insufficient proof for the Commission's claim that Deltafina had acted as the leader of the cartel.

In other news from the General Court, the Commission was ordered to raise objections against a British decision to change the exemption for Northern Ireland from an environmental tax. The Fifth Chamber agreed with the applicants that the Commission's investigation was insufficient to establish that this tax discrimination would not lead to state aid issues. British Aggregates Association v. Commission.

Switzerland lost a claim against the Commission (standing in for Germany and the Landkreis Waldshut, who appeared as intervenors) under the Agreement on Air Transport of 1999. The Commission had authorised Germany underRegulation 2408/92, which applied to Switzerland under art. 18(2) of the Agreement, to restrict to some extent the approaches to Zurich Airport for noise reasons. The most important objection was that Germany's actions were discriminatory in that they treated Zurich differently from comparable German airports. Switzerland v. Commission (NL,DE, FR)

Then there are two cases about so-called "orphan medical products", i.e. medicine for rare diseases. (Cf. art. 3(1) ofRegulation 141/2000). In both cases, the decision declining to designate the product in question an orphan medical product was upheld by the General Court. CSL Behring v. Commission and EMA and Now Pharm v. Commission (DE,FR)

This Week in Luxembourg

Among the first new judgements after the summer vacation are the following:

In Commission v. Scott, the First Chamber sided with the Commission and overruled the General Court's ruling. The case concerned a French state aid problem, where the City of Orléans had sold a piece of land below cost as a location for a factory. The Commission found this aid unlawful, but the CFI disagreed with the method used to calculate the true value of the land. The ECJ now disagrees and - more importantly - it holds that the CFI exceeded its jurisdiction by substituting its assessment of the facts for the Commission's to the extent that it did. The case is referred back to the General Court.

In a second appeal, the Commission did not get its way. In its decision 2002/753, the Commission found that the compensation given to Deutsche Post for its universal service obligation was too high. Thge CFI, applying Altmark, found that the Commission had failed to take into account the costs associated with DP's USO, and annulled. The ECJ now finds that the CFI correctly applied the Court's case law; in this case the CFI did not exceed its jurisdiction.Commission v. Deutsche Post.

After having delivered his opinion in the Deutsche Telekom appeal in April, AG Mazák now published his opinion in a similar case coming from Sweden. In this case, it is TeliaSonera who are being accused of applying a margin squeeze. The AG's answers to the 10 (!) questions posed by the Swedish court are in line with his earlier assessment, as they would be given that the ECJ is yet to rule in Deutsche Telekom. In other words, he proposes that TeliaSonera should lose. I have a draft paper on SSRN with some further background on this issue. Konkurrensverket v. TeliaSonera AB.

Is Germany entitled to give free legal aid to legal persons only if there is a "public interest"? AG Mengozzi concludes that, while there is no general principle making this unlawful, it might be depending on the circumstances, etc.. This is an EU law matter because of Directive 2003/8, which establishes minimum common rules relating to legal aid in cross-border disputes. It is left as an exercise for the reader to see whether the dispute at issue here is actually cross-border, and whether anyone has considered that question. DEB Deutsche Energiehandels- und Beratungsgesellschaft (NL, DE,FR)

AG Bot, finally, considers an appeal against an order by the CFI finding the action moot, since the Commission had withdrawn the contested decision, replacing it with this one. (Full history: CFI order 1, ECJ ruling, CFI order.) The AG concludes that a decision declining to act may not be revoked following a ruling condemning the Commission for failure to act, since such a revocation would allow the Commission to persist in its inaction. The case concerns alleged state aid in the Greek casino privatisation mess. Athinaïki Techniki v. Commission.

This Week in Luxembourg

Among its last judgements before the summer vacation are the following:

The Fourth Chamber held against Anheuser-Busch in the latest installment of the Budweiser litigation. This time, the judgement was on appeal against a 2009 judgement of the CFI in Case T-191/07 Anheuser-Busch v. OHIM, which upheld OHIM's decision favouring the Czech brewery Budějovický Budvar. As it turns out, and despite Anheuser-Busch's best efforts to argue and prove the contrary, the Czechs really do have a valid prior claim, at least in the EU. Anheuser-Busch v. OHIM.

The Third Chamber reaffirmed that under no circumstances can a claim for non-contractual liability of the EU be heard before a national court. In this case, the insolvency administrator of Agenor SA, a Belgian company, wanted to sue the EU in Belgian court under a special section of the Belgian Code des sociétés, alleging that the Community de facto ran the company and was guilty of serious misconduct. However, this provious obviously does not transform the case into a contractual matter, so the ECJ continues to have sole jurisdiction. Hanssens-Ensch v. European Community.

In Commissioners for HM Revenue and Customs v. Isaac, the defendant got himself in a bit of trouble regarding the importation of bycicle parts from China, and particularly the payment (or rather: non-payment) of anti-dumping duties on these parts. The Third Chamber declines to help him out, either on the grounds that the parts in question are immediately sent to Germany, nor on the grounds that qualified for an exemption under art. 212a of the Customs Code.

Finally, there is Commission v. Italy, where Italy is found to have neglected to enact adequate legislation to implementRegulation 273/2004 and Regulation 111/2005 on drug precursors and the monitoring of their trade, respectively. This begs a simple question, of course: Since when do Regulations have to be transposed? Commission v. Italy (FR)

This Week in Luxembourg

The big Grand Chamber ruling this week is Monsanto Technology v. Cefetra, the case where Monsanto tried to get around the lack of any biopatents in Argentina by seeking an injunction in Dutch court against the importation of Argentinian soy meal with its patented gene in it. Following AG Mengozzi, the Court rules against Monsanto, holding that patent protection is not available "where [the gene] does not perform the function for which it was patented" (par. 50) Notice that the Argentinian government appeared as an intervenor, presumably to protect its legislative freedom.

ECJ judgements:

The First Chamber ruled that Portugal had overdone it in maintaining for itself certain "golden share" rights in Portugal Telecom. The Court particularly flagged the states continued veto power over changes in the articles of association (par. 59) and the possible negative effect of state vetoes over board decisions on the share price (par. 61).Portugal's reference to art. 295 EC (par. 63-64) and the justifications of safeguarding real comopetition (par. 70-71) and public security (par. 72-74) were, as was to be expected, of no avail. Commission v. Portugal.

In Sjöberg the Fourth Chamber again upheld the Member States' right to enact reasonable regulations on (internet) gambling. This time the case was from Sweden. As it happens, though, the Swedish system may be discriminatory towards foreign companies offering gambling services in Sweden.

The First Chamber had another Google AdWords case, Portakabin v. Primakabin. In this case, particular emphasis was placed on the position of the reseller specialising in certain trademarked goods, who "will have difficulty communicating such information to his potential customers without using that mark" (par. 90) Otherwise, the case followed the Grand Chamber's ruling from March.

General Court:

The Third Chamber ruled in the Ryanair/Aer Lingus merger cases, finding for the Commission both times. In Aer Lingus v. Commission, the General Court declined to order the divestment of the shares Ryanair alread owns in Aer Lingus. InRyanair v. Commission, the Court went over all the facts, finding no reason to overrule the Commission.

In Agrofert Holding v. Commission, the General Court (1st Chamber) annulled a Commission decision refusing access to the case file of a merger investigation.

In Freistaat Sachsen and Land Sachsen-Anhalt v. Commission, the 8th chamber considered a sum of state aid provided by those two Bundesländer in order to persuade DHL to build a brand new logistical hub in the area Leipzig/Halle. Strangely, at least to me, is that the Court (and the parties) seems to look at this almost entirely through the perspective of art. 87(3)(c), the general exception for poorer regions, instead of art. 87(2)(c), the special East-Germany provision.

Opinions:

The new AG Cruz Villalón again has an interesting opinion, this time about the European Arrest Warrant. He avoids the question of whether a warrant following an in absentia trial is a warrant for executing a sentence or not, and argues that in general the executing MS may demand that the accused should be allowed to serve any prison term in his home state. Presumably the Belgian courts were not thrilled about the idea of sending someone to Romanian prison, even if he was a Romanian citizen himself. I.B. v. Belgium (DE, FR, IT)

AG Trstenjak considered a Hungarian consumer protection law case, arguing that Directive 93/13 does not require a sua sponte investigation of the possible unfairness of the terms of a consumer contract. Based on last year's Pannonruling, the national court has to decide on the unfairness of the terms "where it has available to it the legal and factual elements necessary for that task" (par. 35). This does not mean, according to the AG, that national procedural law should allow the judge to order the production of evidence, etc. to settle the matter. VB Pénzügyi Lízing Zrt. (NL, DE,FR)

AG Sharpston has two opinions on the rights of Turkish workers. In both cases, she proposes an argument that favours the applicant. In Bozkurt, she says that a spouse can stay even after divorce, and in Pahlivan she argued that the applicant - who was entitled to live in the Netherlands with her parents - was able to acquire the rights stipulated by art. 7 of Decision 1/80, notwithstanding the fact that she got married to a Turkish national in Turkey in the meantime. (She continued to live with her parents in the Netherlands while married.)

In an awkward moment, AG Jääskinen proposed declaring all the prejudicial questions asked by the Corte suprema di cassazione in Italy inadmissible. Problems included - but were not limited to - the fact that there were insufficient facts provided to make an assessment, and tthat he connection between the case at bar and EU law was insufficiently clear. (par. 24-33) He then proceeded to discuss the first question anyway, just in case the Court should decide to declare it admissible. It deals with a law granting tax advantages to agricultural and production and workers’ cooperative societies. Paint Graphos (DE, FR, IT)

This Week in Luxembourg

In the area of Access to Documents law, the Grand Chamber disagreed this week with both AG Kokott and the Court of First Instance. In Technische Glaswerke Ilmenau it held that there is "a general presumption that disclosure of documents in the administrative file (...) undermines protection of the objectives of investigation activities" because it would undermine the ability and willingness of various parties involved to "express themselves freely". The applicant at first instance was a recipient of unlawful state aid.

Also in Access to Documents, the Grand Chamber overruled the CFI's decision to give the applicant, Bavarian Lager, access to the unredacted minutes of a Commission meeting, where the Commission was only prepared to provide the document with the names of certain individuals removed. (Again disagreeing with the AG.) The main problem here is the resolution of a clash between the Access to Documents Regulation and the Data Protection Reglation 45/2001. The ECJ notes that art. 4(1)(b) of the former explicitly refers to the latter, and deduces that privacy must win here.

Continuing the Commission's winning streak to an unprecedented 3/3, it also upheld the Commission's appeal inCommission v. Alrosa (CFI ruling here, AG Kokott's opinion favouring the appellant here), a merger case from the diamonds market, restoring the Commission's original decision. The CFI erred by applying the proportionality analysis of the Commission's refusal to accept Alrosa's commitments (art. 9 of Regulation 1/2003) with the wrong standard: the Commission's decision must be upheld unless it is manifestly erroneous. (par. 63-69).

In E and F, finally, the Grand Chamber considers yet another terrorism case, concluding that the organisation DHKP-C's inclusion on the terrorism list was unlawful prior to 29 June 2007, for failure to give reasons, meaning that such inclusion "can form no part of the basis for a criminal conviction linked to an alleged infringement of Regulation 2580/2001" (par. 62). The ECJ also considers whether certain financial transactions by and for the organisation fall within the ambit of the Regulation, finding that they do.

ECJ judgements:

In Sbarigia, the First Chamber declared the prejudicial question inadmissible on the grounds that the articles of the Treaty the Italian court was asking about were manifestly inapplicable to the case before it. AG Jääskinen had observed (par. 29) that the Court had used four types of solutions when it was presented with a purely internal matter. He preferred the kinder approach of simply replying that EU law did not forbid the national regulation (door no. 2, par. 31). The other two solutions are to leave it to the national court to decide whether the case is purely internal (par. 30) and to ignore the problem (par. 33).

Following the opinion of AG Mazák, the Second Chamber ruled that the General Court erred in law when it decided that the onus was on the applicant/appellant, Knauf Gips, to make clear to the Commission that it was not responsible for/answerable for the entire Knauf Group, or be estopped from making this argument before the Community Courts. (par. 87-92). In the words of Judge Arabadjiev, "such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence" (par. 91). Knauf Gips v. Commission.

The Fourth Chamber ruled in the Polish number portability case, holding that the telecoms regulator has to take into account the actual costs incurred by the operator when setting the charge for portability. Cf. art. 30(2) of Directive 2002/22. However, the regulator is allowed to set the charge for number portability below costs "when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility".Polska Telefonia Cyfrowa.

General Court:

The Sixth Chamber (extended) of the General Court tackled a difficult competition case in the area of pharmaceuticals and patents. The Commission had a problem with the way AstraZeneca handled the possibility of competition from generic products and parallel imports in Scandinavia. (Cf. Commission Decision.) Most of the Commission's Decision has now been upheld, but not all of it. The fines have been reduced from € 46 million to € € 40,25 million and from € 14 million to € 12,25 million. AstraZeneca v. Commission.

Italy lost an Altmark (= compensation for universal service obligations, etc.) case before the General Court. The preferential electricity rates it gave to steel manufacturer Terni were not justified by the nationalisation, in 1962, of Terni's hydoelectric plant. Compensation for such a "one-off" expropriation of assets has to be similarly "one-off". Italy v. Commission and ThyssenKrupp v. Commission.

In what I think is the first ruling on the bank bailouts, the Fifth Chamber upheld the Commission's finding that an Italian system of special "tax incentives" for restructured banks constituted unlawful state aid. (Cf. Commission Decision 2008/711.) BNP Paribas and BNL v. Commission.

The Fifth Chamber also upheld the Commission's Decision that there were no serious difficulties with the French Government's Decision to add € 150 million to the capital of France Télévisions. Joined Cases M6 v. Commission and TF1 v. Commission.

Opinions:

AG Kokott concluded that Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings covered only victims who were natural persons, i.e. not corporations. Eredics (DE, FR)

Also of possible interest is the WTO DSB's finding in the Airbus state aid case, which is here. They found that the aid given to Airbus was mostly against WTO rules.

Also, the European Commission has handed down a second massive cartel fine in as many weeks, following last weeks bathroom equipment manufacturers cartel. This week, the culprits are 17 steel manufacturers, who are fined for € 518 million. (Press Release) More than half of that sum is for ArcelorMittal, because this was their third offense, while the German company DWK Saarstahl gets away with no fine at all because it was the one that snitched. The total for Almunia now stands at about € 1,5 billion.