Today in luxembourg 20-05-2010

L.S., 

ECJ judgements

In Scott and Kimberly Clark, the 3rd chamber discussed the interplay between a Community law obligation to recover unlawful state aid and the national administrative law proceedings to make this happen. In this case, there was a potential problem caused by a procedural flaw in the assessments issued.

In a Brussels I case regarding insurance, the 4th chamber ruled that when the defendant makes an appearance the court has to rule that it has jurisdiction even when the rules of art. 8-14 of the Regulation (which deal specifically with insurance contracts) have not been complied with. In those circumstances, art. 24 on tacit prorogation still applies. Bilas.

In Zwijnenburg, the 1st chamber ruled that the Dutch tax on the transfer of real property is not the kind of tax covered by art. 11(1)(a) of Directive 90/434, which allows some of the benefits of that directive (which deals with taxes on mergers & acquisitions) to be suspended when someone uses them for tax evasion.

In a banana/Cartagena Agreement/GATT MFN-clause extravaganza, the 3rd chamber followed the logic of Van Parys and declined to recognise an individual cause of action for those wronged by such international trade law. Ioannis Katsivardas & Nikolaos Tsitsikas.

General Court:

The 8th chamber of the General Court ruled in a stack of competition law cases regarding the copper tubing cartel. In Outokumpu and Luvata, the action for annulment was dismissed. In Boliden AG, as well as in Wieland-Werke and KME Germany, the Commission's counterclaim for an increase in the fine was also rejected. Rather than increase the fines in those cases, the Court elected to reduce them in IMI and in Chalkor, for reasons of the relative seriousness of the infringements of the various companies.

The 8th chamber also upheld the restrictive measures imposed against Pye Phyo Tay Za, an individual associated with the regime in Burma. No unusual arguments were made, except perhaps the applicant's explicit argument that an asset freeze amounted to a criminal sanction. (par. 173-189) Tay Za v. Council.

The 5th chamber rejected an attempt by several Member States to have a Commission "Interpretative Communication" annulled. The manner in which the admissibility of this claim is analysed is curiously (?) detailed, instead of accepting at face value the statement in the opening paragraph that "this communication does not create any new rules". Instead, the Court examined every claim made by the applicants, to see if a "new rule" was adopted. This puts the admissibility analysis dangerously close to the analysis of the merits of the claim. Germany v. Commission.

Opinions:

AG Trstenjak considered two Brussels I cases in the area of consumer protection law: Which country has jurisdiction over a contract agreed over the internet? The AG argues that the mere fact that the website is accessible in the consumer's home country is not enough to give that country's courts jurisdiction over the case. Instead, it depends on a variety of factors that are for the national judge to consider, which may or may not offer sufficient basis for the conclusion that the professional party "direct[ed] his activities to that Member State" (art. 15(1)(c) Regulation). Pammer & Hotel Alpenhof (NL, DE, FR)

Also in consumer protection law, AG Mazák opined on Directive 1999/44: What happens if the product sold to the consumer is not in conformity with the contract through no fault of the seller? Both cases concerned claims by consumers for the costs of removing the defective product where those costs were alleged by the seller to be disproportionate in the sense of art. 3(3) of the Directive. The question is "Disproportionate compared to what?" And what about the fact that in both cases the product was installed by the consumer? The AG's answers generally favour the seller. Gebr Weber and Putz.

Finally, AG Mazák was blessed with a case regarding the Services Directive. Art. 24(1) seems simple enough: "Member States shall remove all total prohibitions on commercial communications by the regulated professions." The Conseil d'État now wants to know whether this means France cannot ban a specific mode of communication for the regulated professions. (In this case: canvassing.) The AG argues that such a ban is still permitted, as long as it is "non-discriminatory, justified by an overriding reason relating to the public interest and proportionate." (art. 24(2) Directive). Société fiduciaire nationale d’expertise comptable

Last Week:

The General Court ruled in an antitrust case about standards setting in the cement industry, an industry not unfamiliar with competition law infringements. In this case, however, the Commission had rejected the applicant's claim that the CEN/TC 51 standard for Portland cement, and the manner in which it had been agreed upon, infringed art. 81 EC. The General Court now holds that, since the procedure was non-discriminator, transparent and open, and since the standard is not even de facto binding, the Commission's decision was correct. EMC Development AB.

AG Trstenjak wrote about the concept of "fair compensation" in the private use exception of the copyright directive, art. 5(2)(b) of Directive 2001/29. After some general discussion of how all aspects of the system used by the MS have to be "fair", and how the system is one of Community Law, but with significant freedom for the MS (i.e. all of it fairly unhelpful), the AG concludes that the Spanish levy system on all storage media is not lawful, "because it cannot be assumed that [they] will [necessarily] be used for private copying". (Cf. the second half of art. 5(2)(b)) SGAE. (Cf. here and here, in Dutch)

AG Trstenjak also wrote about the right of permanent residence under art. 16 of Directive 2004/38, which a Union citizen obtains after five years of continuous residence in another MS. The case before the UK judge concerned someone who had spent five years in the UK, but prior to the transposition deadline of the directive. Unsuprisingly, the AG argues for the expansive reading of the directive, giving it retroactive force. Only a continuous absence of more than two years can cause the right of permanent residence, once obtained, to vanish again. Cf. art. 16(4) of the Directive. Lassal (NL, FR, DE)

In other news, the Commission handed down € 331 million worth of cartel fines in the computer chip industry (BBC) and France, the Conseil Constitutionnel seems to have disentangled a potentially nasty problem of multilevel governance regarding French constitutional prejudicial questions vs. the European kind. (Adjudicating Europe part 1 and part 2. The decision of the Council is here.)

Yours,

Martin Holterman