Thursday, October 21, 2010

This Week in Luxembourg


The big case this week is the European Arrest Warrant case of I.B. The question concerns in absentia trials. Under art. 4(6) of the Framework Decision, the executing MS may elect to lock the (resident) person up themselves instead of sending him (back) to the issuing MS. But what if they want to send him back only so that he can have a full trial, but want him back afterwards? Do art. 4(6), 5(1) and 5(3) of the Framework Decision allow that? Following AG Cruz Villlalón, the Fourth Chamber now rules that Belgium is indeed allowed to ask Romania to send the gentleman back if found guilty as a condition for surrender. I.B.

In Eredics, the Second Chamber considers whether legal persons can count as victims within the meaning of the Council Framework Decision on the Standing of Victims in Criminal Cases (Framework Decision 2001/220/JHA), and specifically its art. 10(1) on mediation. Given the express wording of art. 1(a) of the Decision, that is a no go. Only natural persons count. However, given that Hungarian law does allow legal persons access to such mediation, the ECJ still gives some guidance on how art. 10 is supposed to work. (cf. par. 33)

In Greece, they have a law that allows the television and radio regulator to impose a fine jointly and severally on the station and on its shareholders. It defends this arrangement under the first Council Directive 68/151, enacted under what is now art. 50(2)(g) TFEU. The Court agrees that there is nothing in that Directive forbidding the Greek approach, but holds that the Greek law violates art. 49 and 63 TFEU, i.e. the general restablishment and capital articles. Idryma Typou

The Third Chamber took a look at art. 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, which deals with the private use exception to copyrights. The question concerns the nature of the "fair compensation" referred to, which is now held to be an autonomous concept of EU law, reflecting a fair balance between the harm caused to authors and the interests of the private person. All of this in the context of a Spanish case about copying levies on "digital reproduction equipment". SGAE.

In the Cypriotic case of Symvoulio Apochetefseon Lefkosias, there are some issues about the right of judicial review on the side of the contracting authority (as opposed to the more common case of the private tenderer seeking judicial review). The Third Chamber now holds that contracting authorities do not have to be given access to judicial review "of the decisions of non-judicial bodies responsible for review procedures concerning the award of public contracts". Cf. art. 2(8) of Directive 89/665.

According to AG Jääskinen, pharmaceutical companies are allowed to mention results from research in their advertising, even if those results aren't part of the summary of product characteristics (cf. art. 11 of Directive 2001/83). What they're obviously not allowed to do is mention results that contradict (or are contradicted by) that summary. (cf. art. 87(2) of the Directive). Novo Nordisk (DE, FR)

P.S. The archive of these emails is here.

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