Wednesday, December 22, 2010

Today in Luxembourg

Today, the ECJ issued its last stack of judgements before it starts its Christmas vacation. Unfortunately, they don't fall into groups as neatly as last week's environment and state aid cases, so I'll bold the area of law in each case, while sorting them by importance as

In Intellectual Property Law, the Bayerischer Brauerbund ("Bavarian Union of Breweries") lost its case against Bavaria again. Following last year's Bavaria and Bavaria Italy, the 3rd Chamber now further clarifies the clash between trademark and PGI, where the latter was obtained through a simplified procedure. The prior claim wins, but which date counts? The date of the initial simplified procedure or the date of the Council Regulation affirming? The ECJ disagrees somewhat with the AG, but the Dutch still win. Bavaria v. Bayerische Brauerbund (Cf.

Also in Intellectual Property Law, the 3rd Chamber agrees with AG Bot that Graphical User Interfaces are not protected under Directive 91/250, the software patent directive, but that they are capable of being copyrighted under Directive 2001/29. Bezpeènostní softwarová asociace – Svaz softwarové ochrany v. Ministerstvo kultury

In access to documents law, the 4th Chamber agrees with AG Kokott that the Caisse des dépôts et consignations was justified in rejecting the request by the City of Lyon for information about the sale of emission rights by certain district heating companies until after the five year confidentiality period of art. 10 of Commission Regulation 2216/2004 was over. The lex specialis wins. Ville de Lyon

In the glorious free movement case of Sayn-Wittgenstein, the 2nd Chamber followed AG Sharpston's opinion. Yes, there is a free movement issue, but the Austrian rule banning all displays of noble rank is probably justified. The Court's explanation of this point includes some interesting observations on public policy and general principles of law (here: equal treatment) as a justification for restrictions of fundamental freedoms. Curiously, the Court does not seem to have touched on the issue of surnames and titles that vary depending on the sex of the person, which got all the Slavic countries so excited about this case. Cf. (about the AG's opinion)

In fundamental rights law, the 2nd Chamber gave a not-very-helpful judgment concerning the question whether Germany may refuse access to free legal aid to legal persons if there is no "public interest". In a particular case, this may be in violation of art. 47 Charter, but the Court leaves a lot of work still to do for the national court. Cf. Directive 2003/8, which establishes minimum common rules relating to legal aid in cross-border disputes. DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH

UPDATE: AdjudicatingEurope has a post about the DEB case, noting also the remark about separation of powers and the rule of law in par. 58.

In the Bozkurt case, the 1st Chamber follows AG Sharpston to hold that divorce does not cause a Turkish worker to lose his rights, despite the fact that those rights were originally linked to his being married to a lawfully immigrated Turkish worker. The fact that he was subsequently convicted of assaulting and raping her does not make his reliance on Decision 1/80 (p. 155/168 here) an abuse of right.

The Third Chamber slapped down a quite obvious case of government protection for incumbents and - to a lesser extent - potential entrants already established in Austria. That would be a free movement problem. Yellow Cab Verkehrsbetrieb v. Wien

In RTL Belgium, the 6th Chamber declined to answer the prejudicial question posed because it found that the Belgian Licensing and Control Authority of the Broadcasting Authority was not a "court or tribunal" within the meaning of art. 267 TFEU. That makes this case about EU Procedural Law.

In state aid and environment law, there is the appeal against Case T-233/04, an extended composition CFI judgement about the Dutch setup of its NOx emissions trading system. AG Mengozzi proposes overruling the CFI and restoring the Commission's decision declaring the design state aid, albeit lawful aid. The fact that intangible assets were provided for free is sufficient, the AG argues, to make this the transfer if a valuable resource out of state means. Commission v.
Netherlands (

Finally, there are two urgent procedure child custody cases (cf. art. 104b of the Rules of Procedure). The Mercredi case concerns the notion of the child's "habitual residence" under art. 8 and 10 of Regulation 2201/2203. In Aguirre Zarraga (DE, FR), the question is one of enforcement of a ruling from another MS: May the German court decline to enforce the Spanish custody ruling because it judges that the Spanish judgement has violated the rights of the child (cf. art. 24 Charter)? The 1st chamber holds that it may not. Protecting the rights of the child is the responsibility of the Spanish court only.

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