Tuesday, May 15, 2012

This Week in Luxembourg

I’m not entirely sure why people seem so surprised that AG Bot proposed that the CJEU should follow its Sturgeon precedent when it comes to damages for delays in air travel, but he did. Nelson et al. v. Lufthansa and Q. (on the application of TUI Travel et al.) v. CAA Cf. the Recent Developments in EU Consumer Law blog, and the Financial Times.

AG Bot also recommended that the Court should hold against the Netherlands in another immigration case. In his view, the Dutch were a little too enthusiastic in trying to avoid giving a man who was already a lawful resident for 5 years and 8 moths a long-term resident’s residence permit. (They claimed that the applicant, whose residence permit was based on his job as a spiritual advisor, was “formally limited” in the sense of art. 3(2)(e) of Directive 2003/109, which doesn’t strike me as the most realistic argument ever made in Luxembourg.) Staatssecretaris van Justitie v. Singh

AG Mazák has an opinion on IMS Health (=patents vs. competition law) to the nth degree: Abuse of dominance combined with marketing authorisations for medicinal products. He recommends that the GC judgement should be upheld, meaning that the bulk of the Commission’s decision will probably survive review. AstraZeneca v. Commission

AG Mengozzi also has a fun one: Does a device need a CE Mark of conformity under Directive 93/42 if it is capable of being used for medical purposes but not intended by its manufacturer for such purposes? The AG proposes that the Court should rely on the manufacturer’s intentions. Like AG Jääskinen in Folien Fischer last month, the AG summons a whole list of different methods of interpretation in support of his position. Brain Products GmbH v. BioSemi VOF

AG Sharpston suggests that Italy is not allowed to exempt legal persons from the rules on the entitlement of victims of crime to compensation under art. 9(1) of Framework Decision 2001/220. Procura della Repubblica v. Giovanardi et al. (NB. The underlying case concerns a railway accident in Florence in 2008.)

Just when I was starting to wonder what was going to happen to the Ruiz Zambrano case law (cf. my recent post here), AG Trstenjak has another go. Fortunately for her, the case is an easy one: the father is Japanese, the mother and the daughter are German. The mother and daughter moved to Austria, and the father wants to stay in Germany. I think the AG is correct in concluding that that one won’t work. Iida v. Stadt Ulm

Last week, the Dutch won and lost an interesting public procurement case on sustainability. Requiring a specific label (EKO or “Max Havelaar”) was – understandably – too narrow to avoid being discriminatory, but sustainability as such does have a place in public procurement under Directive 2004/18. Commission v. Netherlands Cf. Laurens Ankersmit on Europeanlawblog, who also has a point about the difference between technical specifications and performance conditions that I don’t think I agree with. 

1 comment:

Jasper said...

Re: AG Mengozzi. Interesting case, in my work at Philips we regularly discuss which classification a device should get, which determines the amount of effort needed to introduce it to market. We also have to take into account "foreseeable misuse" (maybe from FDA?), if you design a medical device for treatment A, that doctors may want to apply for treatment B. If that is likely, the manufacturer is responsible to make sure it is also safe for treatment B, or to prevent it being used for B. This also holds for the different classes of medical devices, if it is aimed at a light class, we should foresee applications in a heavier class.

For medical device vs non-medical devices, I heard a funny anecdote from my skincare colleagues. Anti-wrinkle treatments are by definition medical. Anti-wrinkle creams would be medical products / medical drug if they would reduce wrinkles. But this makes manufacturing much more expensive. So manufacturers on purpose make sure anti-wrinkle creams DON'T WORK, so they don't have to adhere to the regulations. Other medical devices like laser treatment is effective against wrinkles, but those are a lot more expensive to manufacture.