Thursday, June 16, 2011

This Week in Luxembourg

The Grand Chamber struggled this week with the clash between private damages actions and leniency programmes in competition law. Should a private party looking to sue for damages be given access to the documents that a company voluntarily provided as part of its leniency application? The Grand Chamber ruled that there is nothing in EU law that categorically rules this out, but passed the buck to the MS courts for a case by case "weighing [of] the interests protected by European Union law". Pfleiderer v. BKA

In Paul Miles and Others v. European Schools, the Grand Chamber held that it had no jurisdiction to rule on a reference for a preliminary ruling from the Complaints Board of the European Schools, because the Complaints Board is not a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU. The Court distinguished the Benelux Court of Justice precedent of Parfums Christian Dior.

A victory of the Dutch system of copying levies this week. In Stichting de Thuiskopie v. Opus, the Court held that the Dutch system is compatible with art. 5 of Directive 2001/29, and that the Dutch courts are entitled to put the bill with the defendant, a German company who are marketing CD-ROMs for the Dutch market in order to avoid the levy.

Again a Turkish worker wins in Luxembourg: Pehlivan v. Staatssecretaris van Justitie. This time, the plaintiff went back to Turkey and got married, thus allegedly (according to the Dutch authorities) severing the family ties to her father that were the basis of her right of residence. The Court concludes, however, that this argument has no basis in Decision 1/80.

The defendant-appellant in Prism Investments v. Arilco (NL, DE, FR) tried to avoid a declaration of enforceability of a Belgian judgement requiring it to pay over € 1 million by inviting the Dutch court to rule that the debt had already been paid. The Dutch court (rechtbank), and now AG Kokott, argued that this does not work. Art. 45 of Regulation 44/2001 does not allow it, because it is a problem that belongs at the stage of enforcement. It is not an argument as to enforceability.

The General Court dealt with three big competition law dossiers this week. The highlights:
· In L'Air liquide (NL, DE, FR) and Edison (NL, DE, FR), the Commission's decision was annulled because it failed to explain properly why the infringement should be attributed to the appellant.
· Also in the Hydrogen Peroxide dossier, in Solvay, the decision was annulled for the period before May 1995.
· In the Dutch beer cartel dossier, the Commission's decision was annulled to the extent that it covered "the occasional coordination of other trading conditions than the price in the restaurant/cafĂ© segment". Bavaria v. Commission (NL, DE, FR) and Heineken v. Commission (NL, DE, FR).
· In the International Removals Cartel dossier, Stichting Administratiekantoor Portielje is completely off the hook (it didn't control Gosselin to a sufficient extent), while the Gosselin group's decision is annulled for the period of 1993-1996, on the grounds that no infringement existed during that period. (NL, DE, FR)
· In Verhuizingen Coppens, finally, the Commission's decision was annulled for lack of evidence.

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