Thursday, January 28, 2010

This Week in Luxembourg

- On Tuesday, the Grand Chamber gave guidance on the "principle of equivalence", i.e. the principle that no unjust procedural differences may exist to the the detriment of those who make use of the Community Law. The question is the difference between getting a national law annulled via the national constitutional court and getting it annulled through a prejudicial question. (ECJ: "There shouldn't be any.") And all of this in the context of a Frankovich/Factortame damages action. Transportes Urbanos y Servicios Generales v Administración del Estado. (Cf. AG Maduro andAdjudicatingEurope)

- Also on Tuesday, the Grand Chamber ruled that a refusal by the Commission to follow the recommendations by the Ombudsman regarding access to documents (cf. art. 8(3) of Regulation 1049/2001) is a decision within the meaning of art. 230 EC (old), now art. 263 TFEU. This means that the citizen does not forfeit his right to go to court by going to the Ombudsman first. (Cf. the 2 month time limit of art. 263 TFEU.) AG Mengozzi had proposed that the CFI's judgement should be upheld. Internationaler Hilfsfonds v. Commission.

- After the gambling judgement concerning Portugal in September (Liga Portuguesa, follwing an opinion by Bot) and AG Bot's December opinion in the Dutch Betfair and Ladbrokes case, he now has an opinion in a German gambling case. Compared to the earlier cases, this opinion seems to be more critical of the government, while of course leaving a lot of fact finding still to be done by the national court. The interesting thing is that the German regime was transitional in nature, given that it had already been judged as violating the Basic Law and the ECJ's Gambelli precedent. Winner Wetten (DE, FR)

- Replying to a prejudicial question from Spain, AG Mazák argues that the maximum amount of liability set by art. 22(2) of the 1999 Montreal Convention for lost luggage includes both material and non-material damage, i.e. it sets a limit for the total amount of damages that may be awarded. Axel Walz v Clickair (German, French, Dutch)

- In the ongoing Lego/IP litigation, AG Mengozzi delivered an opinion on Tuesday proposing that the Court uphold theCFI's Judgement. The question is whether a LEGO block can be registered as a 3D trade mark. OHIM held that it cannot, because "the shape has no purpose other than that of achieving a technical result". (cf. art. 7(1)(e)(ii) ofRegulation 40/94) That decision was upheld by the CFI, and now supported by AG Mengozzi. Lego v OHIM.

On Thursday, the only thing of note was a few more AG opinions:


AG Kokott had a go at a Dutch Supreme Court prejudicial question regarding a clash between the Brussels-I Regulation (44/2001) and the rules on jurisdiction of the 1956 CMR Convention (cf. art 31), which just predates the communities (cf. art. 351 TFEU). This is a bit tricky since the ECJ is (legally) competent to give guidance on the former, but not the latter. TNT Express Nederland v. AXA Versicherung (NL, FR, DE)


She also published an opinion in Commission v. Luxemburg. Substantively, this is an infringement proceeding regarding the Nitrates Directive, Directive 91/676. However, in this case the admissibility problem is much more interesting, given that the Commission already brought essentially the same action in 2001. The AG rejects the notion that the principle of ne bis in idem requires dismissal, as well as the suggestion that the Commission should have brought a 228 (old) action instead, and instead examines which parts of the case are still to be decided, given the res judicata of the earlier ruling.


AG Mengozzi, finally, published an opinion on the consumer protection directive regarding distance contracts, Directive 97/7, concluding that the directive forbids "national legislation which (...) requires the cost of delivering the goods to be charged to the consumer after he exercises his right of withdrawal." Heinrich Heine

Thursday, January 21, 2010

This Week in Luxembourg

- According to AdjudicatingEurope, the biggest case this week is Kücükdeveci. The result is that directives can have horizontal effect between private citizens. In this particular case, the problem was section 622 of the BGB, which violated Directive 2000/78, concerning equal treatment in the workplace, because it discriminated against individuals younger than 25. The ECJ now allowed ms. Kücükdeveci to claim rights deriving from the directive in her suit against her (former) employer, despite the BGB rule to the contrary.

- In Co-Frutta Soc. coop v. Commission, the General Court cleared up some procedural matters concerning access to documents under Regulation 1049/2001. For example, the Commission is still allowed to adopt a decision explicitly refusing access after an implied refusal has already become effective under art. 8(3) of the Regulation.

- Germany was condemned by the Third Chamber for its overly restrictive regulations with regard to the posting of Polish workers in Germany, under a Polish-German agreement from 1990. Commission v. Germany.

- On appeal from the CFI, the First Chamber overturned the CFI and OHIM and ruled that the Audi motto "Vorsprung durch Technik" can be registered as a trade mark. The OHIM Board of Appeal, supported by the CFI, had held that the slogan lacked distinctive character under art. 7(1)(b) of Regulation 40/94. Audi v. OHIM.

- In MG Probud Gdynia sp., there was a problem between the authorities in Poland and Germany concerning the seizure of certain assets located in Poland as part of bankruptcy proceedings in Germany. Unsurprisingly, the First Chamber emphasised the importance of mutual trust between the member states, and ruled that the German authorities should have their way, subject to the exceptions of art. 25(3) and 26 of Regulation 1346/2000, the insolvency regulation.

- The Second Chamber handed down yet another ruling concerning the rights of Turkish citizens and their children, again finding for the plaintiff. Cf. the Sahin case from September, which was also about Decision 1/80 of the Association Council. In the context of a third country immigration, cf. the pending case of Harrow, LBC v Ibrahim, where AG Mazák delivered his opinion in October, and the similar opinion by AG Kokott in Teixeira v Lambeth LBC from the same day. Bekleyen v Berlin.

Thursday, January 14, 2010

This Week in Luxembourg

- Today, AG Mengozzi released an opinion in another terrorism case. This time, the question is quite simply whether "indirectly" in art. 2(2) of Regulation 881/2002 includes making (social security) funds available to the spouse of someone on the list. (Cf. House of Lords ruling here.) If so, the Treasury would be justified in imposing the stringent requirements that they are currently imposing on social security payments in those circumstances. The AG, however, proposes that a payment to the spouse is not an indirect payment to the listed person. M (FC) and others v. HM Treasury.

- The First Chamber ruled today that a German ban on using lottery tickets as a promotional device for the sale of goods to consumers was incompatible with Directive 2005/29. The directive is meant to fully harmonise the area of unfair b2c business practices, and using lottery tickets in this way is neither included in the Annex, which lists things the MS may in any event ban, nor is it covered by the definition of unfair practices of art. 5 of the Directive Plus Warenhandelsgesellschaft mbH.

- Apparently there is (still) such a thing as Directive 89/105 concerning the pricing of medicinal products, which, inter alia, allows for a price freeze. If an MS chooses to enact one, the Directive requires that they evaluate whether this is justified by "the macro-economic conditions". Today, the question was raised whether that includes the financial health of the pharmaceutical sector. The reply of the Third Chamber is that the article is too vague for there to be a court mandated Europe-wide uniform answer, and that the provision in any event does not have direct effect. AGIM v. Belgium.

- In the context of the Habitats Directive, an interesting issue of German Constitutional law came up, concerning municipalities' right under art. 28(2) GG (English) to "administrative autonomy". Here, the City of Papenburg sued Germany, asking that Germany be ordered to refuse its consent to the Commission's draft list of "Sites of Community Importance" because of the disproportionate economic effect one of the included sites would have on Papenburg. The ECJ, however, ruled that Germany may not refuse its consent on these grounds. Stadt Papenburg v. Germany.