Thursday, April 29, 2010

This Week in Luxembourg

ECJ judgements:

As was to be expected, the ECJ found the British treatment of the spouses of people on the terrorism list to be a bit harsh. The UK may not treat the live-in spouses of alleged terrorists as if they, themselves, were on the list, just because they might use their social security benefits to buy groceries for the household. M v. HM Treasury. The BBC story is here and the original House of Lords ruling is here.

The Third Chamber gave a rare ruling interpreting the trade laws established under the Yaoundé and Lomé Conventions in Camar, a case concerning Somalian bananas being imported into Italy. The Somalians lose: the import tax is not unlawful, and Italy is allowed to adjust it for inflation without violating the standstill clause.

In Commission v. Netherlands, the Netherlands was - again - judged to have violated the EEC-Turkey Association Agreement, this time because they maintained discriminatory fees for residence permits.

In Solgar, the Third Chamber discussed Directive 2002/46 on Food Supplements, including the intriguing possibility that a Member State might want to set the maximum amount for certain supplements at zero. (Which is what France had done with fluoride in this case.) The Court concluded that the MS retain the competence to legislate in such matters, as long as they jump through all the hoops established by the Directive (scientific risk assessment, etc.).

General Court judgements:

In the General Court, there was a series of challenges this week to the Commisison's cartel decision C(2005) 3452, regarding the market for industrial threads. (Summary, Press Release). In Amann & Söhne, in Gütermann and in Oxley, the decision was upheld, whereas in BST the fine was reduced from € 979.000 to € 856.600, since the Commission did not accurately take into account BST's cooperation. (They received 20% under the Leniency Notice of 1996, and the Court now increases that discount to 30%.)


In Akzo Nobel, AG Kokott considered the scope of the legal professional privilige in the context of a Competition Law investigation. The Commission had seized certain documents (emails between the general manager of a subsidiary and an Akzo in-house lawyer) which Akzo argued were covered by privilige. The General Court had dismissed that claim as unfounded, and Akzo appealed. Relying on the 1982 case of A M & S, the AG concluded that the GC ruling was correct. He was also unconvinced that the privilige should be extended relative to the current law. Akzo & Akcros v. Commission.

In Rosenbladt, AG Trstenjak discussed whether the "social partners" are allowed to set a mandatory retirement age in a collective bargaining agreement, or whether that would constitute age discrimination contrary to Directive 2000/78. She concludes that it is allowed, as long as there is a sufficient basis in the law, etc., etc. (NL, FR, DE)

Thursday, April 22, 2010

This Week in Luxembourg

Two interesting Grand Chamber rulings this week:

In Commission v. Sweden, Sweden gets a slap on the wrist for showing a bit too much initiative internationally. Since the EU and the Member States are both parties to the Stockholm Convention on Persistent Organic Pollutants, they formally all have the right to propose an addition to the list of dangerous substances in Annex A. A Swedish proposal to add perfluaroctane sulfonate to the list went against the Council's stated position. This independent action by Sweden is now found to be in violation of Sweden's duty of sincere cooperation under art. 10 EC (now art. 4(3) EU).

In Federultility, the question concerned the Italian gas market. Under Italian law, there is still some regulation of prices, through the use of "reference prices". The Grand Chamber now ruled that some measure of state intervention is still permissible under Directive 2003/55, and that an intervention such as this one is permissible as long as it pursues a genuine "general economic interest", and does so in a way that is proportionate, as well as "clearly defined, transparent, non discriminatory and verifiable".

Other judgements:

The Fourth Chamber disagreed with AG Jääskinen on the idea of the British NHS offering financial incentives to doctors to get them to prescribe cheaper drugs. The AG was against, arguing that art. 94 of Directive 2001/83 is not, on its face, limited to third parties only. The ECJ now disagreed, referring to the right of the MS under art. 168(7) TFEU to stay in control of their own health care industries. Association of the British Pharmaceutical Industry.

In Dimos Agiou Nikolaou Kritis v. Ipourgos Agrotikis Anaptixis kai Trofimon, there was a bit of a disagreement over the definitions of "forest" and "other wooded land", and particularly the question of whether the definitions given in art. 3 ofRegulation 2152/2003 also applied outside the context of that Regulation. (They don't.)


Most importantly, AG Mazák released his opinion in the appeal in Deutsche Telekom v. Commission. In 2008, the CFI ruled that the competition laws could still be applied to Deutsche Telekom even though its behaviour had been approved (but not required) by the German telecoms regulator. The AG now agrees. Cf. my paper from February for more details.

AG Jääskinen wrote about the Framework Agreement on fixed-term work, which was negotiated by unions and employers' organisations at the European level, and annexed to Directive 1999/70. The interesting bit is the discussion of the second question, concerning the possible remedies in case the national law is found to be wanting (par. 58-71). The AG argues that instruments such as this one will not normally have direct effect, but that national courts are required to interpret the national law to minimise any inconsistency. Sorge v. Poste Italiane

AG Sharpston, finally, has an infringement case against Lithuania concerning the authorisation of medicinal products under - inter alia - the aforementioned Directive 2001/83. She agrees with the Commission that Lithuania should have revoked its pre-accession authorisation of a product called Grasalva, however, she also argues that the Commission should have never brought this case (par 155-163), given that the problem in question arose out of an accession SNAFU without anyone acting in bad faith. To quote her par. 161: Dura lex, sed lex. Commission v. Lithuania.

Tuesday, April 20, 2010


Of course. Exactly on the day that I'm giving a presentation on Deutsche Telekom v. Commission, a case that has been pending before the European Court of Justice for more than 1½ years already, the Attorney-General Mazák will release his opinion. Sometimes it really does look like the Universe is out to get me.

UPDATE: The opinion was published online just at 12.00, when I was supposed to start my presentation. I was just able to print it and see that - as I predicted - the AG proposed dismissing the appeal.

For more ECJ case law, see my newsletter here.

Thursday, April 15, 2010

Concours part 1: Application

Don't ask...

This Week in Luxembourg

The big case this week is of course the Grand Chamber ruling in Bressol and Others, on discrimination based on nationality quotas for university admission. In the end, the court concludes that such discrimination is only conceivable in the context of medical training, where the defendant state (in this case the French-speaking Community in Belgium) can rely on the public health justification. It is clear, though, that the national court should be reluctant to find that public health concerns require such a quota system. (Cf. EUObserver)

The Fourth Chamber has followed AG Mengozzi in ruling that, under Directive 97/7 on Distance contracts, a consumer may not be charged for delivery if they invoke their right of withdrawal. Handelsgesellschaft Heinrich Heine. The First Chamber applied a similar consumer protection directive, Directive 85/577 on contracts negotiated away from the business premises, to a closed-end real property fund, much to the benefit of the defendant consumer. Friz.

Predictably, the Hungarian "vocational training levy" which charged the company for all its employees, including workers elsewhere in the EU, did not pass muster in the Third Chamber. CIBA

In Commission v. Germany, AG Trstenjak wrote about a German practice where collective bargaining agreements between unions and government entities locked in only a few financial institutions as providers of certain pension services, without any public tender. She concludes that this fact pattern is capable of falling within the remit of Community law, despite issues of horizontal effect, the fundamental right to collective bargaining, etc., but that the Commission has failed to meet its burden of proof as to the scale neccessary for EU law to apply. Germany wins, but on a technicality. (NL, FR, DE)

AG Bot has an opinion about number portability in telecommunications law: how does a national regulator judge whether the price charged to consumers for this service is proportionate in the meaning of art. 30 of Directive 2002/22? Polska Telefonia Cyfrowa sp. zoo (NL, FR, DE)