Today in Luxembourg 31-03-2011

L.S., 

This week, the Grand Chamber brings us yet another BUD/Budweiser judgement. Just like the AG, they side with the Americans this time, concluding that the General Court erred in the manner in which it looked at the extent of prior use. (Cf. par. 169 for a summary.) Anheuser-Busch v. Budejovicky Budvar. Some other Bud: this opinion from 2009, this CFI judgement from 2009, this ECJ judgement from last July, and this opinion from last month.

The Grand Chamber also dismissed two appeals in steel cartel cases. I’m not entirely sure why this came before the Grand Chamber, though I suspect it may have something to do with the difficulty of imposing a fine in 2006 that was based at least in part on a Treaty that hasn’t been in force since 2002. (Then again, that issue was only brought up in one of the cases.) ArcelorMittal v. Commission and ThyssenKrupp v. Commission

Greece was ordered to pay a lump sum fine of € 3 million for failure to comply with the Court’s ruling in case C-26/07. Given that Greece finally complied with the judgement on 18 December 2009, there was no need for a penalty payment. Commission v. Greece. By the way, here’s a fun question: What if there’s a dispute about the Commission’s decision to claim such a penalty payment? Or about whether any payment is forfeit at all? Where do you take such a dispute? As it turns out, the General Court has jurisdiction to hear such a case. In Portugal v. Commission, it sided with the MS against the Commission.

For the second time in as many months, the General Court annulled a vacancy notice because it wasn’t published in Italian. In this case, the culprit is the Economic and Social Committee. Italy v. EESC

AG Jääskinen argues that Community trademark law does not allow a MS to take into account the hour and minute of registration in addition to the date of registration when deciding who has the prior claim. GENESIS (NL, DE, FR)

AG Cruz Vilalón has an opinion about online torts under Regulation 44/2001. As so often, the result is a multiplicity of possible fora. Also, the AG argues, art. 3 of the e-commerce Directive 2000/31 does not apply to clash of laws issues. In other words, if you have been wronged on the internet, you can sue just about anywhere, and it’s anybody’s guess which country’s laws will be applied to your case. Joined Cases C-509/09 and C161/10, eDate v. X and Martinez v. Société MGN Limited (DE, FR)

AG Mengozzi has two opinions on supplementary protection certificates for medicinal products. I beg the reader’s forgiveness if I leave the analysis of his argument as an exercise for the reader. Synthon v. Merz Pharma and Generics (UK) v. Synaptech

AG Bot explained that under Directive 91/439 a Member State is allowed to refuse to recognize a driving license issued to someone who was not resident in the issuing state at the time when the license was issued. (In this case, Ms. Grasser lived in Germany and got her license in the Czech Republic.) Grasser v. Freistaat Bayern

AG Bot also went over a whole list of characteristics of the Austrian regulatory scheme for gambling, finding some of them defective but not others. Dickinger and Ömer (DE, FR)

Also in gambling: last week, the Dutch Council of State ruled in Betfair v. Minister of Justice (NL). The question was whether Betfair should have been given a license, and whether it needed a license in the first place. Given the ECJ’s answer to the prejudicial questions asked in this case, it was clear that Betfair did need a license. Applying the ECJ’s equal treatment and transparency guidance, the Council now concluded that Betfair should have been given the opportunity to compete for the (or a) license.

Finally, there are a few General Court cases that I forgot last week:

In Access Info Europe v. Council, it was discovered that I need not have anonymised the legislative documents I used in my International Negotiations course. There, I did exactly what the Council also did: I left the positions in place but took out the names of the countries. (Unlike the Council, I replaced them with roman numerals.) The General Court now decided that the Council’s interest in protecting the freedom of manoeuvre of its members is insufficient to justify reliance on the internal decision making exception of Regulation 1049/2001. Ironically, the document in question was about the new version of that Regulation… By the way, here are all Council documents on that dossier.

Also in the General Court, the Commission lost a carbon trading case. (If memory serves, not for the first time.) The Court ruled that the Commission’s objections to Latvia’s National Allocation Plan were out of time. The problem wasn’t that the Commission can’t keep track of a 3 month period, but rather that they had different ideas about when that period started. Note also par. 61 of the judgement, which explains why the conclusion is that the Commission’s decision should be annulled, rather than declared non-existent. Latvia v. Commission

Finally, in Altstoff Recycling Austria v. Commission (NL, DE, FR), the General Court decided not to mess with the conditions that the Commission had imposed as part of its approval of the Austrian system for the recycling of various containers. The applicants would have liked to have a negative clearance under art. 81(1) EC instead of an exemption under 81(3) EC, and if it had to be an exemption, then at least one without (these) restrictions, but no such luck.

Yours,

Martin Holterman