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: 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: (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.