Thursday, April 18, 2013

This Week in Luxembourg

The Grand Chamber handed down two big cases this week:
On the one hand, it decided not to shoot down the European Patent Court a second time. (Cf. Opinion 1/09) Curiously, Spain and Italy tried to use art. 3(1)(b) TFEU to argue that the EPC deals with an exclusive Union competence and that the EPC somehow didn’t promote integration because it excluded two Member States. More sensibly, but also unsuccessfully, they relied on the last resort requirement and the reasoning of Opinion 1/09 (par. 89-94). Joined Cases Spain and Italy v. Council Cf. IPKat (1, 2) and Verfassungsblog

On the other hand, it crushed the tentative Belgian language peace by forbidding a Flemish rule that required all employment contracts to be drafted in Dutch. Las v. PSA Antwerp Cf. the blog Journal du marché intérieur and Euractiv Cf. Eutopia Law Blog and Außenwirtschaftslupe

Following their fairly poor results in the first batch of railway infringement judgements in February (cf. Commission v. Germany here), the Commission will be pleased with its (partial) win against France. The Court (Judge Borg Barthet, of course) found against France with regard to capacity allocation and the absence of mandatory performance elements in the access charges. Commission v. France

Two appearances of the principle of effectiveness this week: In Irimie v. Administraţia Finanţelor Publice Sibiu the Court (Judge Ilešič) insisted that Romania should not let procedure get in the way of recovering all of an unlawfully levied tax, and in L v. M the Court (Judge Bay Larsen) protected the Environmental Impact Assessment Directive 2001/42 against some German procedural problems.

The Court (Judge Tizzano) followed AG Cruz Villalón and held that the dispute between Systran and the Commission is contractual, rather than tort. As such, it belongs in Luxembourg court. Commission v. Systran

Levi’s is trying to prevent another jeans manufacturer from attaching red labels to its jeans by using a number of its trademarks. As far as I can tell, they won. Colloseum Holding v. Levi Strauss & Co (Judge Juhász) Cf. IPKat

The somewhat creative Dutch Essent privatisation litigation has, predictably, ended up in Luxembourg. AG Jääskinen argued that the ban on privatisation is shielded under art. 345 TFEU and therefore OK. As to the ban on TSOs being part of wider energy conglomerates, the AG concluded that this was a justified limitation of the free movement of capital. The Netherlands v. Essent, Eneco and Delta (NL, DE, FR)

AG Wahl has a nice case where the place where the place where the work is habitually carried out is not the place most closely connected to the contract. (Cf. art. 2 and 6 Rome Convention) Schlecker v. Boedeker

In Martin y Paz Diffusion v. Depuydt and Fabriek van Maroquinerie Gauquie AG Cruz Villalón discussed the case of a trademark owner who was naughty in a way that may or may not have been illegal. The plaintiff withdrew his consent for the defendants to use his trademark in a way that the AG concluded was (probably) OK; consent cannot be irrevocable and abuse of right law cannot provide a permanent remedy here. Cf. art. 5(1) of Directive 89/104.

Even though the Commission is already litigating as a victim in Belgian court, the appeal of one of the elevator cartel cases is still pending. AG Kokott recommended this week that Schindler should lose its appeal. (Its complaint was about the way the Commission and the General Court had treated it like a single entity for competition law purposes.) Schindler Holding v. Commission (DE, FR)

AG Kokott is also potentially saying something interesting about public procurement law & structural funds in a case about a Club Med village on Martinique. The Commission had taken the tough approach, and the AG now proposes annulling the General Court’s decision that sided with the Commission. Now let’s see what the Court does. France v. Commission (NL, DE, FR)

Germany v. Puid is one of those cases that give lawyers a bad name. According to AG Jääskinen, an asylum seeker does not have an enforceable claim for a Member State to use its authority under the first sentence of art. 3(2) of Regulation 343/2003 to examine a claim it doesn’t have to. However, when “a national court cannot be unaware” of the deficiencies of the asylum system of the country that is supposed to examine the claim, it is still required to suspend the transfer of asylum seekers to that country under N.S. and M.E. Sounds right to me…

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