Friday, May 01, 2009

This Week in Luxembourg

- Yes, a fixed price for (imported) books is a measure having equivalent effect under art. 28 EC, and no, it cannot be justified under art. 30 EC. Fachverband der Buch- und Medienwirtschaft v LIBRO. This case may not entirely condemn the Dutch system, since I think the Court placed quite a bit of weight on the system chosen by the Austrians. Their law said that the fixed price set by the importer must not be lower than the price in the country of original publication. It is only this aspect of the Austrian system that was attacked in this case. So this ruling might not apply directly to the Dutch system.

- In BIOS Naturprodukte, the ECJ clarified the definition of "medicinal products" under directive 2001/83. As it turns out, incense extracts are not medicine. Or, as the Court put it: "apart from the case of substances or combinations of substances intended for the purpose of making a medical diagnosis, a product cannot be regarded as being a medicinal product by function where, having regard to content and if used as intended, it is incapable of appreciably restoring, correcting or modifying physiological functions in human beings. (...) This conclusion is not invalidated by the fact that the product in question, under normal conditions of use, may involve a risk to health." (par. 23, 24)

- In a State Aid case, Italy won on appeal after having already won in the CFI. The Commission had not proven that the subsidised loans given by the Italian government in order to help certain companies conquer foreign (non-EU) markets had a significant effect on the Common Market.

- And in a continuing string of success for the Italian republic, the ECJ ruled yesterday that the Parliament acted ultra vires when it purported to use its power under the rules of procedure to verify the credentials of newly elected MEPs to overrule a ruling by the Italian Council of State in a conflict between two people claiming the right to take the same seat. The Parliament has to accept the official statement by the MS as to who is elected. Italy v. Parliament.

- Finally, the CFI ruled in three competition cases. CD-Contact Data got its fine cut by 50% as a result of its "exclusively passive role" in the infringement. Nintendo got its basic fine increased by 75% for being the leader in an infringement and for continuation, and then decreased by 40% (instead of the original 25%) for cooperation. After subtracting the compensation already paid to third parties, they still have to pay € 119.242.500. In that same dossier,Itochu Corp's complaint was denied in full, so their fine of € 4,5 million stands.

Friday, April 24, 2009

This Week in Luxembourg

- On Wednesday, a wonderful tale of externalities: Austria and the Czech Republic are arguing over a nuclear power plant that the Czechs built right next to the border. Q: How can European law be used to force at least one of the two countries involved to consider the public interest in both countries, instead of having the courts in each country only concerned about their own? According to Maduro, it's quite simple. He simply applies the freedom of establishment:ČEZ. Personally, I'd prefer an application of art. 10 EC...

- In a case about the Brussels I Regulation, the ECJ ruled that the exceptions to the rule that people should get sued where they are domiciled should be interpreted narrowly. It follows that in this context, a licencing agreement is not a contract for the provision of services. Instead, the general rule for contracts applies to such an agreement, and this rule must be interpreted in line with the case law under the old Brussels I convention. Falco Pivatstiftung and Rabitsch. In another case about the same Regulation, the ECJ clarifies who can appeal a declaration of enforceability: Draka et al.

- Another case of creative procedure in competition law: AEPI complains to the Commission about the Greek system for administering the royalties in intellectual property rights. The Commission feel the thing is a mess, but that it is unlikely that there is a Community Interest because the whole case only affects Greece. AEPI ask the CFI for judicial review, and lose. And now they lost before the ECJ as well. This is fun because essentially the Commission decided that the whole thing was too much of a mess, and unlikely to be worth their time. (The "significant difficulties" doctrine only applies in state aids law.)

- In another opinion, Maduro suggests that the German regulatory system for telecommunications is incompatible with Community Law: Commission v Germany. Basically, the Germans exempted "new markets" from the normal regulatory framework in order to encourage innovation. According to Maduro, that is not allowed, not even if you dress it up as a case of the legislature telling the regulator how to regulate.

- AG Kokott has apparently become the expert on article 300(2) EC. After last month's opinion on the Accession of Vietnam to the WTO, she now discusses the Community's position in the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The main problems are that the Community isn't actually a party to this convention yet, and that the position that was adopted does not refer to any legal base of any kind. Commission v Council.

- TNT tried to get the ECJ to give it the same kind of VAT exemption that the Royal Mail, but they were refused. The exemption applies only to "public postal services", which the ECJ interprets as the company that has a universal service obligation. R. (on the application of TNT) v. Commissioners for HM Revenue and Customs.

- In consumer protection law, the ECJ interprets the Unfair Commercial Practices Directive as forbidding a Belgian law which bans "combined" offers to consumers accross the board. VTB-VAB.

Thursday, April 02, 2009

This Week in Luxembourg

Triple word score for the repeated use of the word peripatetic in this 234 case: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0523:EN:HTML. The main question here is how to ascertain the children's habitual residence for the purposes of deciding who has jurisdiction to remove them from their parents' care, given their peripatetic lifestyle (meaning that they are probably travellers). I suspect the Finnish court will decide it has jurisdiction.

- More and more people seem to be having fun with the concept of "serious difficulties" in competition law, which provides a way for third parties to appeal the Commission's decision not to investigate further. Last month there was a CFI ruling on the Belgian Postal Industry and an AG opinion on something complicated and Danish. Now there is a case on French Telecoms. (Out of these three, DHL won in the first case, the AG recommended that the plaintiff did not have standing in the second, and Bouyges Telecom lost on the merits in today's case, as it did before the CFI.)

- In February the ECJ limited the ability of UK courts to impose anti-suit injunctions in the West Tankers case. In today's art. 234 ruling in Gambazzi, there may be a problem with a UK court decision debarring the defendant from a civil case for failure to comply with various disclosure orders. The ECJ ruled that, if they want to, the Italian court may refuse to enforce the resulting default judgement for public policy reasons.

- This Turkish company applied, under art. 44 Statute, for revision of an earlier ECJ order dismissing their appeal as manifestly inadmissible/unfounded. Their application was declared inadmissible: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0255:EN:HTML. (It's not very interesting why. This case is just a procedural oddity.)

- A nice example of piercing the corporate veil in Community law, in order to examine whether two companies are independent or not: Glückauf Brauerei.

- From the CFI: For obvious reasons, the CFI upheld OHIM's decision not to register Ultimate Fighting Championship as a trademark. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006A0118:EN:HTML.

Sunday, February 17, 2008

Obsidian Wings part 2

L.S.,

One of the creators of Obsidian Wings, Major Andy Olmsted, was killed in Iraq last month. His final post, which he wrote for the possibility that he might get killed in action, is one of the most messed up things ever written on the internet. (In a good way!) It also got more responses than any blog post ever.

This is how it starts, you can read the rest on Obsidian Wings.

***

"I am leaving this message for you because it appears I must leave sooner than I intended. I would have preferred to say this in person, but since I cannot, let me say it here."
G'Kar, Babylon 5

"Only the dead have seen the end of war."
Plato*

This is an entry I would have preferred not to have published, but there are limits to what we can control in life, and apparently I have passed one of those limits. And so, like G'Kar, I must say here what I would much prefer to say in person. I want to thank hilzoy for putting it up for me. It's not easy asking anyone to do something for you in the event of your death, and it is a testament to her quality that she didn't hesitate to accept the charge. As with many bloggers, I have a disgustingly large ego, and so I just couldn't bear the thought of not being able to have the last word if the need arose. Perhaps I take that further than most, I don't know. I hope so. It's frightening to think there are many people as neurotic as I am in the world. In any case, since I won't get another chance to say what I think, I wanted to take advantage of this opportunity. Such as it is.

"When some people die, it's time to be sad. But when other people die, like really evil people, or the Irish, it's time to celebrate."
Jimmy Bender, "Greg the Bunny"

"And maybe now it's your turn
To die kicking some ass."
Freedom Isn't Free, Team America

What I don't want this to be is a chance for me, or anyone else, to be maudlin. I'm dead. That sucks, at least for me and my family and friends. But all the tears in the world aren't going to bring me back, so I would prefer that people remember the good things about me rather than mourning my loss. (If it turns out a specific number of tears will, in fact, bring me back to life, then by all means, break out the onions.) I had a pretty good life, as I noted above. Sure, all things being equal I would have preferred to have more time, but I have no business complaining with all the good fortune I've enjoyed in my life. So if you're up for that, put on a little 80s music (preferably vintage 1980-1984), grab a Coke and have a drink with me. If you have it, throw 'Freedom Isn't Free' from the Team America soundtrack in; if you can't laugh at that song, I think you need to lighten up a little. I'm dead, but if you're reading this, you're not, so take a moment to enjoy that happy fact.

[Here is the rest.]

Sunday, September 30, 2007

Paris Hilton on Letterman

L.S.,

Not usually known for being particularly critical, Letterman takes a few swings at Paris Hilton:

Tuesday, September 25, 2007

NYC Part 1




Search by
Name: HOLTERMAN, JAN









Last NameFirst NameEntry NumberAccepted?AgeCityProvinceCountry of ResidencyTeam
HOLTERMANJAN198951YESM57EMMEN DRENTHENetherlands 


Friday, September 21, 2007

Mark Mardell

Mark Mardell on the Dutch Referendum discussion:

Another Dutch No?
Mark Mardell 21 Sep 07, 12:15 AM

People whistle through the Binnenhof’s cobbled square on their bikes, scarcely giving a glance to either the rather lovely understated architecture or the politicians bustling in and out of the many ministries.

This part of The Hague could be a quiet monument to democracy. Even a rather showy fountain in brown and gold doesn’t undermine the impression of a rather harmonious relationship between the rulers and the people who chose them.

The office of the Dutch Prime Minister in one courtyard, the entrance to the upper and lower houses of parliament in another, various ministries scattered around these two unpretentious courtyards, which have long been the seat of the government of the Netherlands.

But when cabinet ministers meet at Number 19 later today, will they give the people a say over the new European Reform Treaty?

My strong guess is No, but as you’ll see that won’t quite be the end of the story.

The Dutch government is a coalition. The dominant partners, the Christian Democrats, are - like all the governments in the European Union - in favour of the treaty and anxious to avoid a referendum. Gordon Brown too will be hoping they don’t hold one.

It was of course the Dutch who nailed the constitution. Days after the French voted "Non" their "Nee" made sure it was in effect dead. This saved Tony Blair from holding a referendum he never wanted. But a second Dutch referendum now would put wind in the sails of those who want one in Britain and pile the pressure on Mr Brown.


Curious allies

Dutch Foreign Minister Maxime Verhagen, a Christian Democrat, said I would have to wait and see what the cabinet decided but he was sure there would be a unanimous decision.

"We listened to the Dutch public, they said No to the constitutional treaty, now we have a treaty which is completely different," he said. "It is not forecasting a European superstate, there is a clear division between what should be decided in member states and what should be decided in Europe."

The Dutch Christian Democrats have very curious allies in their argument. The Christian Union shot to prominence during the referendum campaign, noisily and successfully championing a No. So you would think their position would be obvious. But they don’t like referendums, and never have.

But it's not just that. One of their MPs, Esme Weigman, told me: "The new treaty is just a modification of the Treaty of Nice, it's another situation from when we had a constitutional treaty. The decisions during the summit in June were very good."

They now have three seats in the cabinet so I suggested that cynics might say the reason for their change of heart was obvious, that they were now part of the government and wanted to stay part of it.

She said, "Yes, people say the Christian Union has changed. But it's not the Christian Union that has changed but the cabinet that has changed on Europe. The most important thing is now Europe will go forward in co-operation but not go forward to a United States of Europe."

The problem for the Dutch government is their Labour Party partners. It's the party's policy to hold referendums. Even though it is for the treaty.

The Dutch parliament is a rather wonderful building, combing old and new with sweeping empty halls and strange giant mobiles hanging in the air. Comfy too: I wish we had had squishy leather sofas and flat-screen TVs during my days at Westminster. It makes the traditional journalistic job of hanging around to “doorstep” ministers a lot more comfortable.


Agonies

The most interesting politician I spoke to was Labour's Luuk Blom. He said: "I’m in favour of a referendum It's part of our programme, referendums are a new way to decided things in a country, to link people more closely to politics. You have to take the people very seriously. The No was a very strong No... I’m in favour of a referendum, and the chances are 50/50."

But he likes the treaty and was obviously in some agonies about what the people might decide if they did get that vote, a view that I think is very common among the political class in the Netherlands, and indeed elsewhere.

"Is it possible to take a No this time? Holland would be in a very difficult position in Europe. We’d be on the bench in football terms. When the Dutch said No two years ago there was a possibility to start new negotiations. That’s not possible any more. This treaty is it. So if we said No, would we be in the European Union? Maybe that should be the question."

The parliament is open to a constant stream of visitors who come to listen to the debates and look at the building. But during the time I was there I never saw anyone approach the displays and the giant yellow flags that cover one wall and part of the floor, emblazoned with the question "Hoezo EU?" ("What’s the EU about?")

There were different views, of course, from those I spoke to, but none of the No-voters said they were happy with the new treaty. In fact none of them mentioned the treaty itself: their complaints were broader.

Professor of political science at the University of Amsterdam Jos de Beus surprised me, telling, me that he thought a referendum was likely. He added: "The mood is Eurosceptic, there is no sense of European identity. There is still a sense that the European space is a space of globalisation, of Islamisation, that Brussels is a superstate. The climate is still quite volatile, so the government is afraid of a second failure. It's still quite easy for the Eurosceptics to win a referendum."

This is exactly the fear of politicians that people, supposedly voting on a technical matter, will give the answer to a big political question, and an answer which most European politicians do not like - and regard in fact as untenable, unpractical, unworkable.

Pajiba

L.S.,

Pajiba is the best review site on the internet, and sometimes they have silly stuff, too.

To illustrate, this is their review of the glorious DOA: Dead or Alive:


Will Someone Please Bash Me to Death With a Truncheon?

DOA: Dead or Alive / Phillip Stephens

In my loftier moments I’ve often wondered if there are any truly redeeming merits to be found in writing about movies. Trying to gauge an art form is a tenuous business, especially when most of our intellectual traditions accept relativism to the degree that ours does. Often film reviews are mired in a subjectivity that bashes or defends their charge based on expectation, personal preference, or any myriad of reasons that can’t rightly fit into an objective mold, even if we assume one exists at all.

To further muddle things, what does one make of a film’s self-consciousness, of its actively choosing style or content that can’t help but draw derision from those who’d judge it against? Is it ridiculous to take a subject matter seriously when those responsible had no intention of extending the viewer the same courtesy?

My point in bringing all this up — DOA: Dead or Alive, a film based on a series of fighting games, is so bad it defies description. Truly, there’s not one line of dialogue that doesn’t grate in your head like bagpipes in a garbage disposal, not one cheap, gratuitous shot of nubile flesh that doesn’t make your eyes roll, not one plot incongruity that doesn’t make you question the existence of a benevolent deity.

The plot is so repellant that I’m not going to waste precious seconds of my life rehashing it. Suffice to say: three women, all of whom are ambulatory tits with no higher-brain function, compete in a fighting tournament and kung-fu kick the Christ out of each other while an evil Eric Roberts (of-fucking-course it’s Eric Roberts) plans to take over the world with sunglasses that can predict the future. Also, Jaime Pressly is top-billed. It’s so ridiculous it just might have worked …

The thing is, there are already hordes of apologists for Dead or Alive who are positively hailing the film for exactly the same reasons I would decry it, mostly those primordial twats who haunt the IMDb message boards: “This movie isn’t trying to win any awards, so why not have fun with it JAYKAYLOLBBQ?” It sounds reasonable, sure, but I personally have a hard time having “fun” with a film that causes me to hate the rest of humanity for tacitly endorsing said fun in such vapid, visceral terms. If you want bikinied bimbos, get some porn; if you want ludicrous kung-fu violence and its accompanying aesthetic, play the same video game this crap is based on; if you want to see Eric Roberts ever work again, please keep that knowledge to yourself and hide your shame from the rest of the world until you’re dead.

Self-conscious stupidity is still stupidity, people, and Dead or Alive is so stupid it would give ass-cancer to lab rats. It’s too big a risk to say that in the proper context this film could be enjoyed, because that context could range from sheer mental ineptitude to the imbibement of lethal quantities of alcohol. Is it fair to ask someone to effectively cripple their cerebrum in the off chance that they would maybe derive some pleasure from this ignominy? I fucking hope not.

Phillip Stephens is the lead critic for Pajiba. He lives in Fayetteville, AR.


And this is something silly I found on their site: