Friday, November 20, 2009

This Week in Luxembourg

In a fascinating case about the difference between "delay" and "cancellation" for the purposes of Regulation 261/2004on compensation for aircraft passengers, the Fourth Chamber has ruled that an extremely long delay is still a delay, no matter how long it lasts, but that for some purposes delayed flights may be treated as cancelled, for example if the delay is more than three hours and is not due to "extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken". How illuminating... Sturgeon v Condor.

In an ruling interpreting Directive 93/42 concerning medical devices, the Second Chamber has held that the Swedish government could not rely on environmental or health concerns to ban the export to third countries of CE conform amalgam for dental use, since these concerns are fully adressed by the framework set up by the directive.Kemikalieinspektionen v Nordiska Dental.

Referring to art. 34 of Directive 2002/22, AG Kokott opined that it is possible (i.e. not contrary to Community law) to make an attempt at out-of-court settlement mandatory before parties are given access to the courts. The case concerned such a requirement enacted by the Italian parliament for the telecommunications industy. Alassini and others. She also argued that the Dutch system of allowing groups of corporations to form a single entity for tax purposes is not contrary to Community law either, even though this possiblity only exists for Dutch subsidiaries. X Holding BV.

Finland was found to be in violation of art. 307 EC for being insufficiently inclined to remove the incompatibilities of some of its pre-1995 bilateral investment treaties with Community Law. Commission v Finland.

It is not possible to register CANNABIS as a trademark, because it is too descriptive. Torresan v. OHIM.

On Wednesday, the CFI (6th chamber) ruled in an Austrian State Aid case, where the plaintiffs object to the Commission's finding that no violation occurred. Most of the ruling concerns the question of admissibility, i.e. whether the plaintiffs were individually concerned. The result is that their substantive concerns were declared inadmissible, but that the plaintiffs' claim is in to the extent that rests on their procedural rights under art. 88(2) EC. From there, the CFI has little difficulty concluding that "serious difficulties" did in fact exist, meaning that the Commission should have investigated further.

For some reason, it took a Grand Chamber to decide that creating a tax on aircraft stopovers that exempts local companies is both a violation of free movement law and an illegal state aid. Presidente del Consiglio dei Ministri v. Regione Sardegna.

In Helmut Müller, AG Mengozzi explores the limits of the concept of "public works". (cf. Directive 2004/18) To what extent does this concept include the case of a sale of real estate combined with certain rules (eg. zoning laws) about how this land is to be used? The AG proposes that "public works" requires a degree of connection between the public entity and the work that is to be done, such as a benefit for the public. More interestingly, he also considers the consequences, in this area of the law, of transfer of ownership and of legal shenanigans. (Dutch, German, French,Italian.)

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