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 Administraci├│n 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

No comments: