Thursday, April 07, 2011

This Week in Luxembourg

This may well be the first time the Services Directive is doing any real damage. (Or did I forget something?) From the Grand Chamber judgement in Société fiduciaire nationale d'expertise comptable v. Ministre du Budget, des Comptes publics et de la Fonction publique: “Article 24(1) [the Services Directive] must be interpreted as precluding national legislation which totally prohibits the members of a regulated profession, such as the profession of qualified accountant, from engaging in canvassing.”

Despite art. 34 TFEU and art. 3(2)(b) of the Community Customs Code, we are still allowed to discriminate against Monaco, at least in the area of procedural law. Francesco Guarnieri & Cie v. Vandevelde Edd VOF

Like the General Court before him, AG Jääskinen agrees with Gibraltar and the UK in their state aid dispute with the Commission. This case has all sorts of interesting aspects, ranging from whether the GC’s findings as to the constitutional status of Gibraltar (cf. Azores judgement) are factual or legal findings, to the autonomy of the Member States in the area of taxation, to issues of regional and material selectivity in the case of indirect measures. We will see what the Grand Chamber will do with all this. Commission & Spain v. Gibraltar & UK

AG Bot sides with the Commission against Spain (supported by the UK) in their disagreement about how various kinds of commercials should be counted for the purposes of art. 18 of the Television without borders directive. The Directive has a separate rule for infomercials, but not for the kinds of “mini-spots”, telepromotions, and sponsoring that are common in Spain. The AG agrees with the Commission that they should essentially all be counted as commercials, meaning that Spain is allowing a lot more than 20% advertising. Commission v. Spain (DE, FR)

AG Mengozzi argues that a civil law fine under §§ 890 and 891 of the German Zivilprozessordnung is not within the remit of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It cannot even be treated by analogy as a penalty payment under art. 49 of that Regulation. Then there is an issue of costs, where the AG argues that art. 14 of Directive 2004/48 on the enforcement of intellectual property rights does not apply to an “exequatur” procedure such as this one. Realchemie v. Bayer CropScience (NL, DE, FR)

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

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