This Week in Luxembourg

- The rules protecting consumers against unfair terms (i.c. art. 6 of Directive 93/13) have to be applied by the court of its own motion when the consumer does not invoke them himself. Pannon GSM.

- Replying to a prejudicial question from the Dutch CBB in a competition case concerning the mobile telecom industry, the ECJ emphasises the "or" in "anti-competitive object or effect", without saying anything intelligible about either. What it does say, is that exchange of information is bad, that anti-competitive does not mean that an effect on prices is necessary, and that the national court is required to apply the presumption of causal connection between concerted practice and market behaviour in all circumstances. T-Mobile et al. v NMA.

- In Vatsouras, the ECJ says that not giving workers any social benefits when they first arrive, as allowed by art. 24(2) of Directive 2004/38, is compatible with the Treaty, even if this results in a situation where EU citizens are worse off than illegal immigrants.

- Directive 85/374 harmonises the law on defective products, making it easier for non-professional users to seek redress for damage caused by a defect. France extended that regime to professional users, and the defendant in a case before the Cour de Cassation tried some form of a contrario argument to argue that that was not allowed. The ECJ ruled that it was. Société Moteurs Leroy Somer.

- Greece has to pay a lump sum fine of € 1 million for not obeying a Court ruling requring it to liberalise its market for opticians, and a daily penalty payment of € 31.536 in another case concerning computer games in public places. Greece did get a partial win, though, in a case about irregularities in a tender for an electric power plant.

- On June 2, AG Ruiz-Jarabo Colomer considered a very creative approach to public-private partnerships, coming from Sicily. The idea was to use a competitive tendering procedure to select the private party who would be allowed to take a minority shareholding in a water company, as well as undertake certain responsibilities with regards to its operations. After giving a useful discussion of this area of the law, the AG argues that the system is OK, as long as certain requirements are met. Acoset.

- On May 19, Italy was allowed to keep its restrictive rules regulating who is allowed to own and operate a pharmacy ina 230 procedure brought by the Commission, while a similar scheme in Saarland was upheld in a 234 case:Apothekerkammer des Saarlandes and others.

- Also on May 19, AG Bot delivered his opinion on a tricky piece of international law, concerning the application of the Rome Convention on the law applicable to contractual obligations to a contract in the transport sector. Not only does he prefer a flexible closest connection test over "fixed and rigid connecting factors", he also spends quite a bit of time on the possibility of having different law apply to different parts of the contract, i.e. "severability" under art. 4(1)(2) of the Rome Convention. The case is a 234 case from the Hoge Raad der Nederlanden, ICF v Balkenende Oosthuizen BV and MIC Operations BV.

- On May 14 in Luxembourg, there was some interesting common law/civil law mess about when a fake prize scam counts as a contract in the sense of Regulation 44/2001. If it is a contract, the victim/consumer can sue in her own court to claim her prize, since that would be the forum where the contract is to be performed. Otherwise, she'd have sue in Germany. At common law, the conclusion would be that there is probably no consideration (there is some factual uncertainty about this), so no contract. Here, the court chooses the middle ground, with some carbolic smokeballthrown in. Not very helpful... Ilsinger.

This Week in Luxembourg

- In a Dutch 234 case, someone tried to get the city to tell him to whom his GBA data had been disclosed over the previous two years. (GBA = Gemeentelijke Basis Administratie = the City's record of its inhabitants with some information about each of them, which they use for example to make a voters' list.) Apparently the GBA Act only required the city to give him this information for the previous one year, hence the dispute. The Raad van State asked the ECJ, because there was an EC data retention directive in play, and the ECJ's answer is that he should be able to access this information, but that the MS are free to set a time limit. It is up to the national court to decide whether in this case "fair balance" has been struck, although the ECJ gives some indication that this is not the case. Rijkeboer.

- In a Portugese 234 case, there is a bit of a mess in the Portuguese bus market (?). Apparently, the bus companies of Lisbon and Oporto, who receive a government subsidy because they have a public service obligation, also run buses to the rest of Portugal, in direct competition with the plaintiffs and without any PSO. Since it is impossible to calculate the amount of compensation to which the defendants are entitled, the ECJ rules that it would be unlawful to give them any. This result is reached under a transport law regulation, without recourse to state aids law. Antrop and Others.

- AG Sharpston delivered an opinion in an Italian 234 case that crosses over between Fèta-type appellation of origin law and trademark law. Two producers' associations in Emilia-Romagna are trying to get "Salame Felino" (=a type of salami) protected the same way Fèta is. In the mean time, they registered it as a collective trademark. Plaintiff has been using this description for many years in good faith, but now he got in trouble. Much hilarity ensues. Severi.

- The CFI handed down four rulings in competition cases. (Three regarding a cartel in the industrial tubes sector, and a merger control case in the Dutch pig market.) In all four, the court left the Commission's decision intact. In a clear case of "everything but the kitchen sink", Wieland-Werke started by arguing that art. 15(2) of Regulation 17, which governs the fines the Commission can set, was in violation of the lex certa principle. (NB, Reg. 17 is so called because it is so old that it predates the current numbering system.) That case and the KME ruling do have an interesting discussion of the application of the leniency notice, though. Both applicants felt they deserved a higher discount than the one they got. (Not to mention higher than the one the other got.) In the Dutch pig case, some farmers' unions objected to a Commission decision allowing Hendrix Meat Group to be taken over. (NVV et al. v Commission)

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.

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.

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.

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.]

Allman Brothers Live on Letterman

Paris Hilton on Letterman

L.S.,

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

NYC Part 1

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Name: HOLTERMAN, JAN

Last Name	First Name	Entry Number	Accepted?	Age	City	Province	Country of Residency	Team
HOLTERMAN	JAN	198951	YES	M57	EMMEN	DRENTHE	Netherlands

Guy tells his mom he's an atheist

glumbert - Don't tell Mom you're an atheist