Today in Luxembourg 11-02-2010

L.S.,

Following the ruling - last November - in Grimme, the ECJ again has a case concerning the rights of Swiss persons in the common market. As in the earlier case, the argument runs along the lines of "if Switzerland doesn't want to join the EEA, that's fine, but it's their loss", meaning in this case that the freedom to purchase immovable property in EU countries is limited to natural persons, excluding legal persons. Fokus Invest v. FIAG.

AG Jääskinen takes on the British NHS, in their efforts to curtail health care costs by inducing doctors to prescribe certain medicines but not others. According to the AG, they may ask nicely, but they may not implement an incentive scheme, because art. 94(1) of the Community Code relating to medicinal products for human use (Directive 2001/83). It seems to me like that provision was written with inducements by insurers or pharmaceutical companies in mind (cf. par. 52-55), so I'm not sure the ECJ wil go for it. Ass. of the British Pharmaceutical Industry.

In competition law, AG Mazák considered the appeal in the plasterboard market cartel case. In Knauf Gips, there were issues regarding the relevant "economic unit", which would or would not be responsible for an ongoing long-term price-fixing cartel, depending on how the economic unit was defined. (The AG proposed affirmation.) In Lafarge, there was a reasoning problem requiring annulment and, more interestingly, the question of whether someone can be considered a repeat offender if the second offence predates the ruling on the first. (par 98-116) According to the AG, they can be.

On Tuesday, AG Trstenjak considered a very amusing problem: Knowing how trademarks are turned into domain names under Council Regulation 733/2002, establishing the .eu top level domain, and under art. 11 of Commission Regulation 874/2004, the claimant got the Swedish authorities to accept &R&E&I&F&E&N& as a trademark, which he then used as a "prior right" in order to register www.reifen.eu. The AG is having a difficult time seeing how this trick could be challenged in court, except by having the trademark annulled in Sweden. Internetportal und Marketing GmbH v. Richard Schlicht.

Last Thursday, February 4, the Second Chamber ruled in another Turkish free movement of workers case, following the case of  Bekleyen v. Land Berlin on January 21. Here, the question is whether the plaintiff should be considered a worker under Decision 1/80, given the fact that she only worked part-time, and that the income thus obtained only added up to about 25% of the legal subsistence wage. The ECJ ruled that she did qualify as a worker. Hava Genc v. Land Berlin.

AdjudicatingEurope has a series of posts on the recent Kücükdeveci ruling: Part 1, part 2 and part 3. There's also this post on EU Law Blog and this one by Julien Frisch. Next week, the Dutch ministry of Foreign Affairs will have a lunch meeting about the case, where Ms. Mirjam de Mol will speak. (Link.)

Yours,

Martin Holterman