Today in Luxembourg 19-04-2012

L.S.,

The most press-friendly case this week is Bonnier Audio et al. v. Perfect Communication Sweden, where the Court (with Judge Malenovský as rapporteur) sides with the Intellectual Property owners against internet pirates. Earlier precedents include Promusicae (2006, with Malenovský talking about striking an appropriate balance), the order in LSG v. Tele 2 (2007, with Malenovský writing that there is no obligation to create a right like the one at issue in Bonnier Audio) and Scarlet Extended (2011, with Malenovský invoking internet privacy to hold against an anti-piracy filter).

Through the pen of Judge Silva de Lapuerta the Tomra group got shot down in its abuse of dominance appeal. Like the General Court (Judge Ciucă as rapporteur) in 2010, the CJEU upheld the 24 million euro fine imposed by the Commission in 2006. The abuse in question consisted of “exclusivity agreements, agreements containing individualised quantity commitments and agreements establishing individualised retroactive rebate schemes.” (par. 11) Tomra v. Commission

In Wintersteiger v. Products 4U Sondermaschinenbau the Court, per Judge Safjan, holds that under art. 5(3) of Regulation 44/2001 Google AdWords cases can be brought either in the Member State where the trademark is registered or in the Member State where the advertiser is established. The Austrian case also has some “series of tubes”-style murkiness about whether there is still a trademark infringement when you use a different Top-Level Domain, but the Court punts that question back to the national court.

According to the 2nd Chamber (Cunha Rodrigues as rapporteur), there is nothing in Regulation 810/2009 (the Visa Code) that prevents Germany from sticking Mr. Minh Khoa Vo in prison for 4 years and 3 months for visa fraud and people smuggling. I’m not entirely sure that I even understand what the problem was, but small graces, etc. Minh Khoa Vo (DE, FR)

Finally for the specialists, there is a case on the intersection of Regulation 44/2001 and bankruptcy law, where the liquidator of a company assigned a claim held by the company to its only creditor. This assignment may or may not be lawful, and the claim in question may or may not have merit, but before that can be sorted out it is first necessary to establish where exactly this litigation should take place. The Court, per Judge Berger, concludes that Regulation 44/2001 applies, meaning that the Lithuanian judge gets to keep the case. F-Tex v. Lietuvos-Anglijos UAB „Jadecloud-Vilma“ (NL, DE, FR)

In Parliament v. Council, the Council has a pretty epic admissibility argument: Because the Parliament didn’t (attempt to) veto the offending measure in comitology, they are to some extent its co-author and therefore barred from having it annulled. AG Mengozzi doesn’t go for it, though. On substance, the AG also sides with the Parliament: the Council exceeded its powers under art. 12(5) of the Schengen Border Code.

In a second, unrelated Parliament v. Council, AG Mengozzi insists that yes, lex specialis still derogat legi generali. Using art. 337 TFEU as a legal basis is not acceptable if art. 194 TFEU is also available. So, according to the AG, Council Regulation 617/2010 concerning the notification to the Commission of investment projects in energy infrastructure should have been adopted under the Ordinary Legislative Procedure based on art. 194 TFEU instead.

AG Bot concluded that “the concept of denied boarding [as defined in art. 2(j) of Regulation 261/2004] includes not only the case of overbooking but also other grounds, such as operational reasons”, which doesn’t strike me as a huge leap. It gets more interesting when he considers what to do with the interplay of the facts of the case (a strike) and the exceptions of art. 2(j), art. 4(3) (denied boarding) and art. 5(3) (cancellation). Finnair v. Timy Lassooy

AG Jääskinen has an opinion that should be studied in Introduction to Law classes everywhere. Firstly, it concerns the glorious curiosum of a “negative Feststellungsklage”, whereby under § 256 ZPO a possible tortfeasor can sue the potential victim asking the court to say that no liability exists. Secondly, the AG carefully sorts through all the different methods of interpretation – textual, teleological and systematic – in order to ascertain whether such a suit falls under art. 5(3) of the Brussels I Regulation. He concludes that it doesn’t. Folien Fischer and Fofitec v. Ritrama (NL, DE, FR)

In asylum law, AG Bot proposes a generous interpretation of the relevant law in a case of Pakistani religious prosecution. Germany v. Y and Z (NL, DE, FR)

AG Mazák had surprisingly little difficulty in concluding that Austria acted in violation of EU law by refusing to allow Slovenian casinos to advertise in Austria on the grounds that Slovenia doesn’t have a level of protection for gamblers that is equivalent to the protection provided in Austria. The AG argues that, if Austria wants to do something along these lines, they should make the permit dependent on the protection offered by the casino instead. HIT and HIT LARIX v. Bundesminister für Finanzen

While the case of Križan et al. v. Slovenská inšpekcia životného prostredia (NL, DE, FR) concerns my beloved Aarhus convention, as well as a boatload of less interesting environmental law, my main reason for noticing it is the question that was raised about the relationship between the Slovakian Constitutional Court and the Supreme Court in the context of the obligation to ask a prejudicial question. AG Kokott sticks to the post-Elchinov line: all things supreme have to always ask a prejudicial question always, no matter what the other supreme guys have said earlier in the litigation.

Finally, there’s an issue I’ve been looking at that I’d appreciate some feedback on. I’ve been looking at specialisation at the ECJ (and at the ECtHR) in the form of certain judges always acting as judge-rapporteur in certain kinds of cases. According to the literature, it is ECJ policy to avoid such specialisation, and yet when I look at the data I observe the opposite. However, my dataset is not very large and I am not aware of any serious studies on this. If anyone knows more about the ECJ’s or the ECtHR’s policy I’d love to hear it. http://martinned.blogspot.com/2012/04/specialisation-in-luxembourg.html (See the first case above for another example: four similar cases all with Judge Malenovský as judge-rapporteur.)

Yours,

Martin Holterman

P.S. the archive of these emails is here.