Thursday, June 30, 2011

This Week in Luxembourg

In Zeturf, the ECJ sided with the Member State, as it has done in most gambling/free movement of services cases. However, it did tell the French court to carefully examine the facts on the ground, and to make a number of specified factual findings.

In intellectual property law, the ECJ has a problem with the Belgian system for remuneration under art. 5 of Directive 92/100, which governs the remuneration authors receive when their works are lent out by a library. The objection is that the remuneration depends on the number of lenders registered with a given library, but not on the number of works available for lending. Vereniging van Educatieve en Wetenschappelijke Auteurs v. Belgium (for more copyrights fun see below)

AG Mengozzi considers two appeals by Bank Mellin and its subsidiary Melli Bank against General Court rulings upholding their asset freezes, and concludes that both should be rejected. Bank Melli v. Council (DE, FR) and Melli Bank v. Council

AG Sharpston has another opinion about the line between public bodies acting in a legislative capacity and their other duties. Following her opinion of 19 May about the Walloon parliament ratifying a decision, she now considers the German Environment Ministry as it is involved in the preparation of legislation. She concludes that Germany was entitled to exclude ministries when they are acting in this capacity. Cf. Directive 2003/4, art. 2(2). Flachglas Torgau v. Germany

She also has a Air Passenger Rights case under Regulation 261/2004. Yes, if a plane takes off but is forced to return for technical reasons, it is still cancelled within the meaning of the Convention. (par. 27-56) She also explains that "without prejudice to further compensation" means exactly what you think it means (cf. art. 12) and that there's no requirement for passengers to claim their rights immediately in order to preserve their right to reimbursement. Sousa Rodriguez and others v. Air France

AG Bot considers a bit of procedural law in a state aid case. The case itself is quite interesting, dealing with below cost pricing by Deutsche Post in the parcel services market. This specific dispute, however, concerns the Commission's power to demand information. Deutsche Post tried to have the Commission's decision annulled, but this request was declared inadmissible. AG Bot now concludes that a formal decision demanding information under art. 10(3) of Regulation 1999/659 is an act in the sense of art. 230 EC. Deutsche Post v. Commission (NL, DE, FR)

AG Trstenjak has two cases on equitable remuneration in copyrights cases under art. 8(2) of Directive 2006/115. A dentist has to pay for putting a radio in his waiting room: SCF Consorzio fonografici (DE, FR, IT), and so does the owner or operator of a hotel who provides TVs or - and I'm not making this up - "players for phonograms": Phonographic Performance (Ireland). Note that in the latter case the copyrights body took the Irish state to court for incorrect transposition.

In the Netherlands, it looks like the Hoge Raad will take on its usual role of tempering the enthusiasm of the Courts of Appeals (cf. the Hofstadgroep case, and pretty much every appeal against a ruling by the Ondernemingskamer ever). In the cases about the reorganisation of the electricity and gas sectors, where the CoA in The Hague had ruled that the mandatory unbundling violated art. 63 TFEU (free movement of capital), AG mr. Keus now argues that this is wrong given art. 345 TFEU. Note his explanation of why the Court should not ask a prejudicial question in par. 5.8-5.9.

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

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