This Week in Luxembourg

The Grand Chamber (Judge Arabadijev) annulled the General Court’s state aid judgment in French Republic et al. v. Commission. Siding with the Commission, the Court criticised the General Court’s standard for the connection between the state resource and the advantage at issue, as well as its analysis of the nature of the alleged advantage. The case now goes back to the General Court so that it can deal with France’s other arguments. Bouygues Télécom and Commission v. France Cf. e-comm blog and The Antitrust Hotch Potch

Belgium created a new and innovative fee for mobile telecoms operators, and the Court (Judge Jarašiūnas) approved. The operators’ challenge under art. 3 and 12-14 of the Authorisation Directive was rejected. Belgacom et al. v. Belgium

As expected, the Court (Judge Bonichot) shot down the Hungarian rule for counting the number of days a 3^rd country national spends in the EU under the local border traffic Regulation. The Court held that every time a person crosses the border the count starts anew. Szabolcs-Szatmár-Bereg Megyei Rendőrkapitányság Záhony Határrendészeti Kirendeltsége v. Shomodi

The Court rejected an Austrian attempt to exempt small airport extensions from the rules on environmental impact assessments. Salzburger Flughafen v. Umweltsenat

In RWE Vertrieb v. Verbraucherzentrale Nordrhein-Westfalen, the Court (Judge Safjan) had some fun trying to figure out the interplay between the unfair consumer contracts directive and the sectoral regulation for the gas sector. Can an energy company just unilaterally increase your prices? The Court concluded that it can, as long as the whole thing is transparent, based on clear principles, etc. Cf. Recent Developments in European Consumer Law

AG Bot levelled significant criticism at the General Court’s handling of the second Kadi case in 2010, concluding for a variety of reasons that that judgment should be annulled, and that the General Court should have taken a more modest approach in its judicial review, both when it comes to the intensity of scrutiny, and to the scope of law involved. Commission et al. v. Kadi Cf. Eutopia Law Blog, Verfassungsblog, EJIL: Talk! and one of Kadi's lawyers on the brand new European Sanctions Blog

AG Kokott considered the doctrine of standing under art. 263 TFEU in the Spanish state aid case of Telefonica v. Commission (NL, DE, FR, ES). The General Court had dismissed the case by order on the grounds that the plaintiff was not individually concerned while this case was not caught by the new exception for regulatory acts which do not entail implementing measures. The AG agrees that Telefonica does not have standing, but only because a state aid decision requires implementing measures.

That AG also argued that the Spanish special tax on the windfall profits associated with the free allocation of emissions rights was permissible under the relevant Directive, Directive 2003/87, unless it acted to disincentivise energy efficiency. Iberdrola v. Administración del Estado

For reasons to do with their opt-in, the UK are challenging the legal basis of the Council’s Decision establishing a mandate for the EU in the EEA Joint Committee, so that Regulation 883/2004 might be extended to the EEA. The “procedural legal basis” is, undisputedly, art. 218(9) TFEU, but the UK is challenging the choice of art. 48 TFEU as the “substantive” legal basis. Instead of the free movement of workers law, the UK prefers immigration law as a basis. AG Kokott disagrees. UK v. Council

AG Mengozzi considered a Belgian case where the plaintiff tried to use Directive 2006/114 on misleading advertising to go after an arguable case of domain name hijacking. The AG proposed, not very helpfully, that registering such a domain was not captured by the directive, but that using it might be, and that the national court should sort out the rest. Belgian Electronic Sorting Technology v. Peelaers and Visys (NL, DE, FR)

AG Mengozzi also handed down an opinion in the case of K. (It’s not otherwise very interesting, but the way in which the Finnish method for citing cases resulted in the most Kafkaesque of case names proved impossible to resist.)

In Alopka et al. v. Ministre du Travail, de l’Emploi et de l’Immigration (FR), AG Mengozzi reaffirmed the Ruiz Zambrano line of case law. Unlike in many other genuine enjoyment cases, where the plaintiff was unsuccessful because Ruiz Zambrano was distinguished, here it looks like the precedent is directly on point.

In the state aid case of HGA et al. v. Commission, AG Bot said that the General Court got it wrong to attach as much importance as it did to the question of the aid was requested by a given recipient. However, he argues that the judgment should nonetheless be upheld, because the remaining reasoning is sufficient to bear the conclusion that the Commission’s decision is correct. Joined Cases Regione autonoma della Sardegna (T-394/08), SF Turistico Immobiliare Srl (T-408/08), Timsas Srl (T-453/08) and Grand Hotel Abi d’Oru SpA (T-454/08) v European Commission

Following the recent decisions on the merits by the General Court in the first REACH cases against the European Chemicals Agency (ECHA), AG Cruz Villalon now handed down the first opinions in appeals against the General Court orders dismissing other REACH suits. He concluded that the General Court was wrong to hold that the suits were not aimed at a challengeable act, that they were out of time and that that belatedness was not the consequence of an excusable error. Polyelectrolyte Producers Group and SNS v. ECHA

AG Sharpston took the Aarhus issues regarding the distinction between legislative and administrative acts, first discussed in Flachglas Torgau (where she also wrote the opinion), to the next level. I’m not sure what the logic of her proposed answer is, except that it seems to turn the Solange rule back on Germany. Deutsche Umwelthilfe v. Germany

Everyone’s favourite MEP, Sophie in ‘t Veld, achieved a small win against the Commission. She sued over the Commission’s refusal to give her all the documents relating to the draft international Anti-Counterfeiting Trade Agreement (ACTA) that she asked for, and the General Court (Judge Dehousse) now granted her access to some of the missing ones. In ‘t Veld v. Commission Cf. EU Law Blog

ITER may well be the single coolest thing going on in Europe right now, and today it was on the receiving (and winning) end of a public procurement suit. It turns out you cannot ask for the annulment of “tous les actes adoptés subséquemment” (par. 48-50), and otherwise nothing very interesting seems to have happened; the applicant’s bid was quite rightly thrown out in pre-screening. Nexans France v. Entreprise commune européenne pour ITER et le développement de l’énergie de fusion (FR)

Following some creativity with import licenses for bananas, the Commission allowed a remission of duties in respect of the customs agent, who had not obviously erred, but not in respect of the trader, the applicant, who were held to have been negligent. The General Court (Judge Schwarcz) now annulled that decision, holding that insufficient evidence as to negligence had been adduced. Van Parys v. Commission (yes, that Van Parys)

Today in Luxembourg

While I missed it in the email version of this post, the big case is apparently the Spanish evictions case of Aziz v. Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa), where the Court (Judge Tizzano) held that the way in which many Spanish mortgage loan contracts arrange for enforcement is unfair under Directive 93/13, meaning that hundreds of thousands of Spanish people have been evicted unlawfully. Cf. Coulisses de Bruxelles

In competition law, there is evidence of a worrying trend towards competition authorities preferring to examine whether an agreement is anticompetitive “by object” before moving on to an effects based test, rather than the other way around, as legal and economic commentators would generally prefer it. In Allianz Hungária et al. v. Gazdasági Versenyhivatal the Court (Judge Ilešič) gives some guidance on the meaning of “by object” in a case that should easily pass any effects-based test. Cf. Hans Vedder on European Law Blog

In environmental law, the Supreme Court of Austria checked with the Court (Judge Bay Larsen) whether an Environmental Impact Assessment under Directive 85/337 is meant to assess impacts to the “substance” of assets or to their value. The result is a fun bit of sparring with what economists call value in use and value in trade. In reply to the second question, the Court explains that a failure to do an EIA does not automatically give rise to civil liability of the state. Leth v. Austria Cf. UK Human Rights Blog, European Law Blog and ECJBlog

Even though managers and owners of SMEs don’t usually deal with banks “in the course of their trade or profession”, they still don’t qualify as consumers for the purposes of articles 5(1)(a) and 15(1) of Regulation 44/2001. Česká spořitelna, a.s. v. Feichter Cf. Recent Developments in European Consumer Law Blog

In the copper fittings cartel case, the appeal of Viega was rejected. Viega v. Commission (DE, FR)


Most interesting for me is this week’s opinion by AG Jääskinen in ÖBB-Personenverkehr, although ultimately the case is less about railway regulation than about the effect of Regulations in EU law. The Regulation in question is Regulation 1371/2007 on passenger rights. The Austrian regulator, the Schienen-Kontrol Kommision, found that ÖBB’s compensation terms were not compliant, and substituted its own scheme. The AG now argues that they were not allowed to do that absent national law authorisation, given that other national law remedies exist.

AG Bot is OK with the Bulgarian approach to handling disputes that arise under Regulation 73/2009, the CAP procedure Regulation. It is permissible for Bulgaria to have them all handled in Sofia, as long as this does not create an excessive burden on (potential) plaintiffs. Agrokonsulting-04-Velko Stoyanov v. Izpalnitelen direktor na Darzhaven fond „Zemedelie” Razplashtatelna agentsia (NL, DE, FR)


In the General Court, President Jaeger granted an order suspending the operation of the Commission’s Decision in the Carglass cartel case until the General Court has decided whether the Commission had erred in declining to keep certain information confidential. Pilkington Group v. Commission

In other cartel news, the General Court (Judge Martins Ribeiro) upheld the Commission’s decision in the bananas cartel case against Dole, whereas Fresh Del Monte had its liability reduced from € 14,7 million to € 8,82 million. (The total fine for Internationale Fruchtimport Gesellschaft Weichert & Co is still € 14,7 but Fresh Del Monte is only jointly and severally liable for € 8,82 million of it.)

Tacit Collusion

Nicolas Petit’s new(-ish) article on tacit collusion is a wonderful piece of scholarship. Unfortunately, it is also wrong. To be clear, it is not the economics that I have a problem with. The author’s understanding of the relevant industrial organisation literature seems to be more or less unimpeachable. In fact, it’s not even really the legal analysis that is problematic. Instead, the key flaw is in the paper’s essential policy assumption. All the other problems of the article proceed from that one flaw.

The flaw in question is one that we might plausibly dub The MEP’s Fallacy, because it is Members of the European Parliament who suffer from it more than anyone else. The Fallacy is the thought that: a) there is a problem, and b) I can fix it, lead inevitably to the conclusion that: c) I should fix it.

Not all problems that can be fixed at the EU level should be fixed there.

Something similar goes for competition law: Not all problems that can be resolved through competition law, should be. This is not just a question of the goals of competition law, but also one of its suitability for pursuing various goals, not to mention wider legal principles.

In this  particular case, I’m afraid I have to join the other side of the debate discussed by Nicolas (I’ve never met him in person, but we’ve been in touch in various ways, so I feel confident that he’d be OK with me calling him that): I am fundamentally uneasy with the notion of using art. 101 TFEU for types of collusion that are not in some sense based on an agreement. It appears to me that "agreement” is the core actus reus of that provision,  just like “abuse” is for art. 102. It is the overt act that - in this case non-criminal - liability attaches to.

That reminds me, as an aside: How can the Dutch competition authority give six people a fine of € 120.000 each without having to satisfy the standard of art. 6 ECHR? We all know that the normal competition enforcement procedure - as used by the Commission and by most Member States - only barely satisfies that provision, and that is when it is applied to companies. (Let's face it: every company that brings an action for annulment against a competition decision adressed to it will argue that the whole procedure is in violation of art. 6. We all know that those arguments never succeed, but we also know that that is more for pragmatic and stare decisis reasons than for reasons of honest merit.)

Saying that competition fines are not criminal only gets you so far. At some point that just isn't  credible anymore, and as far as I'm concerned that line lies somewhere between giving Microsoft a € 561 million fine and giving a private person a fine of € 120.000, and perhaps even on the other side of that Microsoft fine.

Anyway, too much creativity with the actus reus is equivalent to prosecuting someone for manslaughter because they drove 150 kph and someone might well have died. Much as there is some room for creativity with regard to intent, by including dolus eventualis, there has to be a link to someone dying or almost dying. Without that, the charge would just be completely unmoored from the actual offence.

In competition law, the issue is not usually one of intent. But there is some scope for creativity with regard to the "agreement"-element. Art. 101 already suggests as much, by listing as possible acti rei:

• - agreements between undertakings,
• - decisions by associations of undertakings, and
• - concerted practices

As Nicolas explains, however, the Court of Justice drew some clear lines here. These lines are - contrary to his assertion - in no way unintelligible or regrettable as long as one bears in mind that the problem is how to prove a concerted practice, rather than what kind of concerted practice falls within the scope of art. 101. After all, the word "concerted" implies some meeting of minds, which is enough - conceptually - to make concerted practices similar in nature to explicit agreements and decisions by associations; the actus reus is clearly the same in all cases. But as prof. Posner pointed out in the passage quoted in fn. 140, the proof is categorically different. There would normally be no "smoking gun". Instead, the relevant proof would focus on what decision makers knew and expected about each other's decisions. (Note the similarity here with the Cournot and Bertrand models. In fact, despite Nicolas' analysis I am still not entirely clear why a Cournot market would not imply tacit collusion.) Because of this proof problem, it might be safer to limit concerted practices to those cases where, evidence-wise, the balance between Type-I and Type-II errors is not too eggregious. And that is all the Court seems to have done.

In Posner's words:

The biggest problem in applying [art. 101] to tacit collusion is that of proof: How can the existence of noncompetitive pricing be established without any proof of acts of agreement, implementation, or enforcement? Without denying that these will be extremely difficult cases, one can point to several types of evidence that should convince the trier of fact that sellers are guilty of tacit collusion as that term is used here.

The Court in Suiker-Unie et al. v. Commission (1975):

173. THE CRITERIA OF COORDINATION AND COOPERATION LAID DOWN BY THE CASE-LAW OF THE COURT, WHICH IN NO WAY REQUIRE THE WORKING OUT OF AN ACTUAL PLAN, MUST BE UNDERSTOOD IN THE LIGHT OF THE CONCEPT INHERENT IN THE PROVISIONS OF THE TREATY RELATING TO COMPETITION THAT EACH ECONOMIC OPERATOR MUST DETERMINE INDEPENDENTLY THE POLICY WHICH HE INTENDS TO ADOPT ON THE COMMON MARKET INCLUDING THE CHOICE OF THE PERSONS AND UNDERTAKINGS TO WHICH HE MAKES OFFERS OR SELLS.

174. ALTHOUGH IT IS CORRECT TO SAY THAT THIS REQUIREMENT OF INDEPENDENCE DOES NOT DEPRIVE ECONOMIC OPERATORS OF THE RIGHT TO ADAPT THEMSELVES INTELLIGENTLY TO THE EXISTING AND ANTICIPATED CONDUCT OF THEIR COMPETITORS, IT DOES HOWEVER STRICTLY PRECLUDE ANY DIRECT OR INDIRECT CONTACT BETWEEN SUCH OPERATORS, THE OBJECT OR EFFECT WHEREOF IS EITHER TO INFLUENCE THE CONDUCT ON THE MARKET OF AN ACTUAL OR POTENTIAL COMPETITOR OR TO DISCLOSE TO SUCH A COMPETITOR THE COURSE OF CONDUCT WHICH THEY THEMSELVES HAVE DECIDED TO ADOPT OR CONTEMPLATE ADOPTING ON THE MARKET.

And, 13 years later in Woodpulp II, the Court was even more cautious with regard to these evidentiary problems:

71 In determining the probative value of those different factors, it must be noted that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. It is necessary to bear in mind that, although [art. 101] prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see the judgment in Suiker Unie, cited above, paragraph 174).

"Regarded" and "plausible" suggest that this is a statement about how cases are to be brought and proved, not about the underlying concepts. Conceptually, I would argue that any kind of "conscious parallelism" is captured by art. 101 TFEU. (Contrary to Nicolas, I regard "conscious parallelism" as an eminently useful label, because more than "tacit collusion" it neatly makes clear what exactly the offending action is. The elements are: a) parallel behaviour that is, b) consciously so. In the term "tacit collusion", the word "collusion does all the work, thus begging the question what that word actually means.) I would define conscious parallelism, conceptually, as any kind of behaviour that succeeds in reducing competition by taking advantage of each decision maker's understanding of every other decision maker's reasoning. Clearly, this is essentially the same as Nicolas's tacit collusion. (Cf. his very helpful diagram on p. 24.) However, in collusion cases as in abuse of dominance cases, competition law doctrine has to be developed with an eye to the relative probability of Type-I and Type-II errors, and their relative cost to society. When it comes to tacit collusion, we want to avoid mistaking success for monopolisation, or a social-welfare enhancing coordination for a collusion-facilitating agreement. For this reason, the Court's approach seems quite sensible, although I would have preferred it if they had not been quite so categorical in ruling out the possibility of a successful tacit collusion case under art. 101 TFEU.

Relying on art. 102 TFEU, on the other hand, seems highly problematic from a conceptual point of view, because it is difficult to see how a single oligopolistic firm is "dominant", while I have no idea what "collective dominance" means outside the context of "groups of firms that were legally distinct, but subject to a unified economic management, including vertically related companies (mother and subsidiaries)", i.e. “undertakings [that] present themselves on the market as a single entity and not as individuals”. (These quotes are taken originally from an article by prof. Joliet from 1974 and from the Commission's Decision in the Italian Flat Glass case, respectively.) In other words, while there is some room for creativity with respect to the concept of "one or more undertakings" which hold(s) a single "position" in the market, I would think that this concept cannot be stretched to the point where it includes companies that are clearly perceived as competitors by their customers.

And much as dr. Petit seems to think that the mere fact that tacit collusion ought to be subject to regulatory intervention means that either art. 101 or art. 102 has to give way, as noted above that is not the case. He is completely right to reject what he calls "moral justifications" for tacit collusion (p. 19 of his article). Competition authorities and regulators are rarely confronted with anything other than regulatory subjects who engage in rational market conduct, and this has never been held to undermine the moral case for intervention, although it might impact the question of the size of penalties. However, this does not mean that existing competition law should be extended past its breaking point.

Instead, there are two solutions that should be preferred for those cases that cannot reasonably be brought within existing law. On the one hand, there are the market investigations that he mentions, as they are carried out in the UK by the Competition Commission under part 4 of the Enterprise Act 2002. S. 131(1) says:

The OFT may, subject to subsection (4), make a reference to the Commission if the OFT has reasonable grounds for suspecting that any feature, or combination of features, of a market in the United Kingdom for goods or services prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom.

(Ministers have the same power under s. 132.)

When an adverse effect on competition has been established by the CC, it can take any of a wide range of measures - at a sector-wide level - to remedy the problem. It seems eminently advisable to create such a power for the Commission as well, if necessary with a veto power for the Council and the Parliament through comitology. As far as I can tell, Nicolas agrees.

To the extent that this is still not enough, there is only one option remaining: sectoral regulation through the legislature. (What Bergqvist calls "industrial policy". His article offers a more in-depth discussion of the interaction between competition law and sector-specific legislation.) It seems to me that under the general common market rules, the EU legislature has wide-ranging powers to create a sector-specific framework to enhance social welfare by combating tacit collusion. This power may not reach as far as structural remedies, but it certainly suffices to go after any number of facilitating factors. This road seems by far preferable to the competition law path, not only because it is more legitimate, but also because it allows for more sector-specific knowledge to be brought to bare on the problem, and because it avoids the problem of a regulator working within an artificial, and artificially narrow framework. Instead, in this way the solution can be designed on a blank sheet.

To a hammer, all problems look like a nail. Let's make sure that the same isn't true for the carpenter.

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

This Week in Luxembourg

In Åklagaren v. Åkerberg Fransson, the Court (Judge Safjan) applied the Charter to a case that was within the scope of EU law but not a necessarily an implementation of EU law in the sense of art. 51(1) Charter. Also fun, the Court discusses the relationship between EU fundamental rights law, ECHR law and national fundamental procedural and fundamental rights law (par. 43-49). Cf. EULaw Student Blog, European Law Blog, Eutopia Law Blog (1, 2), and Verfassungsblog (1, 2)

The execution of an EAW cannot be made conditional on the in absentia judgement in question being open to review, not even if the national court invokes the Charter. Cf. Framework Decision 2009/299. Notice also the national court’s question 3, which invoked art. 53 Charter in order to be able to use national constitutional law to evaluate a rule of EU law. Unsurprisingly, the Court (Judge Safjan) did not like that either. Melloni v. Ministerio Fiscal Cf. Eutopia Law Blog and prof. Joseph Weiler on EJIL: Talk!

Delay compensation for air passengers is not conditional on delayed departure, but only on delayed arrival at the passenger’s final destination. (Judge Malenovský.) Air France v. Folkerts Cf. European Law Blog, Eutopia Law Blog and Recent Developments in European Consumer Law Blog

A number of cases were handed down this week about the 1st Railway Package, all of them courtesy of Judge Borg Barthet and AG Jääskinen. A quick rundown:

• In Commission v. Germany, the Court followed the AG and dismissed the action.
• In Commission v. Austria, the Court followed the AG and dismissed the action.
• In Commission v. Spain, the Court followed the AG and found that Spain had failed to correctly transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (Charges are ultimately set by the minister, there is no performance scheme and the minister has too much discretion in how to deal with capacity scarcities.)
• In Commission v. Hungary, the Court followed the AG and found that Hungary had failed to transpose the rules on the allocation of infrastructure capacity and the levying of access charges. (The financial equilibrium of the infrastructure manager is not ensured, the charges are not linked to direct costs, and there is no incentive scheme.)

In Kenny et al. v. Commissioner of An Garda Síochána et al., the Court (Judge Silva de Lapuerta) tackled a straight-up indirect gender discrimination case, providing some guidance – though perhaps not as much as the Irish court would have liked – on the burden of proof for the defendant if a pay difference is to be justified.

In Ettwein v. Finanzamt Konstanz for once the Swiss don’t get the short end of the stick. The EU-CH Agreement on the Free Movement of Persons requires equal treatment here, according to the Court (Judge Juhász).

In Arrango Jaramillo et al. v. EIB, the Court reviewed a judgement by the General Court (FR) on appeal from the Staff Tribunal (FR). Even though such a review procedure requires the ECJ to be quite deferential (“if it affects the unity or effectiveness of EU law”), it was not pleased and sent the case back to the General Court.

The Greek State Aid case of Ellinika Nafpigeia v. Commission (FR) took an unexpected turn for the interesting when the appellant – a shipbuilder – invoked art. 346 and 348 TFEU in order to get out of repaying the aid. The Court (Judge Silva de Lapuerta), however, relied heavily on the last clause of art. 346 (1)(b) TFEU to interpret that article even more narrowly than it was already going to do anyway. The General Court judgment is here, also in French.

The Court (Judge Arabadijev), explained to a Portuguese court that a system of compulsory training for chartered accountants does fall under art. 101 TFEU, meaning that, once it is shown that it is problematic from a competition law point of view, it will require an equivalently weighty justification. Ordem dos Técnicos Oficiais de Contas v. Autoridade da Concorrência


AG Kokott goes out on a limb in competition law by arguing that a company that relies in good faith on advice by outside counsel saying that its behaviour is lawful under competition law cannot be punished for infringement if the competition authorities disagree. I suppose she had the Verbotsirrtum of § 17 StGB (translation) in mind, but I doubt that the Court will go for it. Schenker and Co AG et al.

AG Mengozzi proposed that the Commission should win its cartel appeal in Commission v. Aalberts Industries et al.

AG Jääskinen, on the day of his railway victory, did some public procurement law: “Articles 47(2) and 48(3) of Directive 2004/18 (…) preclude national legislation (…) which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria concerning the economic and financial standing and/or technical and/or professional ability of an economic operator.” That seems quite obviously right. Swm Costruzioni 2 and D.I. Mannocchi Luigino v. Provincia di Fermo Cf. Eutopialaw

Last Week in Luxembourg

In ProRail v. Xpedys et al, the Court (Judge Ilešič) considered whether the procedure created by Regulation 1206/2001 for a Court to enlist the help of the Court in another Member State for taking evidence there is mandatory. The Court found that it is not; the Belgians were entitled to simply appoint an expert to report on the situation in the Netherlands without involving the Dutch courts.

In the mutual recognition of qualifications case of Ministero per i beni e le attività culturali et al. v. Ordine degli Ingegneri di Verona e Provincia et al., there is something noteworthy going on in par. 35, where the Court deals with the objection that this is a purely internal matter. It argues that it may still answer the prejudicial question where the national court is required by its domestic law to treat internal cases the same as cross-border cases.

The Court (Judge Berger) discussed the application of the rule of audi et alteram partem to the situation where a court has found, of its own motion, that a contractual term is unfair under Directive 93/13. The conclusion is that parties must be invited to submit their views about which remedies the Court should impose. Banif Plus Bank Zrt v. Csipai Cf. Recent Developments in European Consumer Law Blog post 1 and post 2.


Relying on art. 24(2) Charter, AG Cruz Villalón proposed bringing the best interest of the child standard into Dublin-II asylum law. As a result he concluded that when an unaccompanied minor (cf. art. 6 of the Dublin-II Regulation) applies for asylum in more than one Member State, the best interest of the child will usually (but not always) require that the application be treated in the Member State of the most recent application. MA et al. v. Secretary of State for the Home Department

AG Sharpston handled yet another case on financial aid for students, arguing that the German three-year rule should suffer the same fate as its Dutch equivalent. Joined cases Prinz v. Region Hannover and Seeberger v. Studentenwerk Heidelberg Cf. Eutopia law blog


Surprisingly, Melli Bank lost its latest asset freeze suit. Some of its heads of claim were held to be inadmissible, and the others were rejected on the merits. Melli Bank v. Council

This Week in Luxembourg

This week’s case of the week is Protimonopolný úrad Slovenskej republiky v. Slovenská sporiteľňa a.s. (Judge Rosas), where the Court held that it is irrelevant for the purposes of art. 101 TFEU that the competitor-“victim” of the alleged cartel was operating on the market illegally, in this case because it didn’t have the right banking licenses. If you ask me, this is a cool result, even though it is clearly correct. I’m actually surprised that the Court invoked “anti-competitive by object” in order to get there. Surely the real victims, the customers, were still affected? Cf. European Law Blog

If you are amused by subrogation of rights in the context of insurance contracts, you should be doubly amused by this week’s Refcomp v. Axa et al. (Judge Berger), which does subrogation in a cross-border conflict, focusing on art. 23 of the Brussels I Regulation. The result is that the jurisdiction clause in the original contract is not effective against a later successor in rights unless they have actually consented to it.

AG Jääskinen applied Pfleiderer to an Austrian competition law dispute, arguing that the would-be plaintiff in private damages action should have access to the full file regardless of whether any of the parties to the original administrative investigation consent under the principle of effectiveness. (The competition authority had refused.) The AG also considered whether it is OK that the rule for access to such documents is the same for EU competition law and national competition law disputes, but different from the rule for other kinds of national law disputes, arguing that the principle of equivalence is not violated here. Bundeswettbewerbsbehörde v. Donau Chemie et al. Cf.  Eutopia Law Blog

AG Mengozzi approved, in general, of a Luxembourg rule that required residence in Luxembourg for financial aid for students, regardless of where they studied. He just left it to the Luxembourg court to decide on the ultimate question of proportionality. So it appears that after Dutch and Austrian cases, we have now finally found a system that is consistent with EU law, the key being that the Luxembourg rule does not require residence for more than a few months. Giersch et al. v. Luxembourg (DE, FR) Cf. Eutopia Law Blog

Following last week’s Bank Mellat v. Council, this week the Council lost another Iranian asset freeze case against a bank in Bank Saderat Iran v. Council. Both judgements are by Judge Pelikánová. Cf. UK Human Rights Blog

This Week in Luxembourg

Apparently it took a Grand Chamber judgment (Judge Ó Caoimh) to explain why Mr. Radu’s attempt to throw the entire ECHR and Charter at his European Arrest Warrant should fail. In the end, they still ignored some of his more creative arguments, by “taking the first four questions and question six together” (question 5 was inadmissible on the grounds that it was hypothetical) and distilling them into a question about hearing the suspect before issuing an EAW, an idea that is clearly unworkable. Cf. AG Opinion, which is much more exciting, because AG Sharpston actually tried to answer the questions posed.

Just like Radu, the glorious Bulgarian case of Belov also ended in an anti-climax. Rather than analyse whether it was unlawfully discriminatory for the plaintiff to have his electricity meter installed 7 metres above the ground because he lives in a Roma neighbourhood, the Court held that the referring court was not a court, and that the question was therefore inadmissible. Cf. Recent Developments in European Consumer Law Blog

In the area of compensation for denied boarding in air transport law, the Court (Judge Šváby) held that the closing of large chunks of air space due to the eruption of Eyjafjallajökull in 2010 counts as “extraordinary circumstances”. The Court also gives some guidance as to which kinds of sums may still be claimed. McDonagh v. Ryanair Cf. Recent Developments in European Consumer Law Blog, Eutopia law and UK Human Rights Blog (This still leaves the question of whether extraordinary circumstances also covers the days Delta Airlines needed to get its timetable back in order after Sandy last year, given that others did it faster. They refused to pay me compensation, but then they would, wouldn’t they?)

AG Mengozzi had a fairly abstract, but interesting problem of public procurement law: Given that the main public procurement directive applies only to “bodies governed by public law” (art. 1(9)(2)(c), what are we to make of the Ärztekammer in Germany? It is in Annex III to the directive (p. 171), but that only creates a rebuttable presumption (cf. Hans & Christophorus Oymans v. AOK Rheinland/Hamburg). The AG relies on the fact that the Ärztekammer is funded with private dues to conclude that the presumption is in fact rebutted.

Surprisingly, AG Jääskinen left a small window open for the possibility that the Italian regulation for opticians that was at issue in Ottica New Line v. Comune di Campobello di Mazara (NL, DE,FR) might be justified under 49 TFEU. He just ruled out the possibility that requiring a minimum distance between them could be justified on the grounds of public health, while leaving open justification as part of an overarching scheme for providing public health care. Realistically, though, it’s not going to happen.

AG Wathelet concluded that making the membership and fees for a sectoral body (equivalent to a “produktschap” in the Netherlands) mandatory was not state aid, given the 2004 Pearle judgment which already settled that question for the Netherlands. The key point is that the state is not providing state resources, nor controlling this money through some other means. Doux Élevage SNC and Coopérative agricole UKL-ARREE v. Ministère de l’Agriculture and Comité interprofessionnel de la dinde française (CIDEF) (NL, DE, FR)

More contentiously, AG Wathelet also went near the issue of detention for illegal aliens pending their return to their home country. The AG argues that such detention is unlawful under Directive 2005/85 once the alien has asked for asylum, unless abuse of right can be shown. (Which, in an asylum context, will not easily be the case, I imagine, although this particular person might come close, which is why the AG brought it up unprompted.) Arslan (NL, DE, FR)

Tackling one of the less headache-inducing questions that have ever been asked about marketing authorisations for medicinal products under Directive 2001/83, AG Sharpston argues that when a marketing authorisation is given specifying the container the product is to be distributed in, you can’t – subject to some small exceptions – change the container without getting a new marketing authorisation. Novartis v. Apozyt

Cross-border doctors (in the free movement of services sense) received some help from AG Cruz Villalón, because he argued that the approach taken by the German Berufsgericht for the medical profession with regard to pricing was too probably rigid, and that their criterion for deciding what constituted unlawful advertising was certainly too vague. Konstantinides (NL, DE, FR)

In the TRIPs case of Daiichi Sankyo and Sanofi-Aventis v. DEMO Anonymos Viomichaniki kai Emporiki Etairia Farmakon (NL, DE, FR), AG Cruz Villalón takes a menu approach to answering the question. He argues:

1.       That this area of TRIPs (medical patents) is still a Member States competence, meaning that the Court shouldn’t go near it.

2.       In the alternative: That art. 27 TRIPs does not have direct effect.

3.       If the Court doesn’t like either of those: That the plaintiffs have not obtained a patent through the entry into effect of TRIPs.

AG Mengozzi applied the principle of ne bis in idem to the requirement for a corporation to publish its accounts in time. The Austrian law in question might leave somewhat to be desired, from aRechtsstaat point of view, but the AG concluded that this did not rise to the level of a violation of the free movement of services or establishment, of ne bis in idem, the rights of defence or the right to an effective remedy. TEXDATA Software GmbH (NL, DE, FR)

Apparently the Commission and some Member States are still arguing about the national allocation plans for emission rights. AG Kokott argued that the General Court was wrong to annul the Commission’s decision against Latvia, and that it should be asked to try again. Commission v. Latvia (NL, DE, FR)

In the General Court, an unsuccessful tenderer failed to obtain a second chance in Cosepuri v. EFSA, and another (Iranian) asset freeze was shot down in Bank Mellat v. Council (Judge Pelikánová). Cf. UK Human Rights Blog

Finally, the EFTA court this week rejected attempts by British and Dutch investors (by way of the EFTA Surveillance Authority, i.e. the European Commission of EFTA) to make the state liable for its failed deposits insurance scheme under Directive 2009/14. EFTA Surveillance Authority v. Iceland Cf. EJIL: Talk! and European Law Blog

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)