Delimitation of jurisdiction in competition law

What happens to the allocation of respective competences of the Commission and national competition authorities in if an international cartel is implemented both in the EU and the Czech Republic before accession to the EU but action is taken after accession? A number of undertakings had formed a worldwide cartel on the market for gas insulated switchgear and those companies were fined by the Commission and the Czech competition authority. The Commission decision concerned the implementation of the cartel within the EU, while the Czech competition authority concerned the implementation of the cartel within the Czech Republic before accession. However, the decisions were dated after the date of accession of the Czech Republic and after the entry into force of Regulation 1/2003. Does this preclude the Czech competition authority from fining the undertakings in question for the implementation of the cartel in Czech territory? The Court does not think so. The Court first holds that

 the provisions of Article 81 EC and Article 3(1) of Regulation No 1/2003 must be interpreted as meaning that, in the context of a proceeding initiated after 1 May 2004, they do not apply to a cartel which produced effects, in the territory of a Member State with acceded to the Union on 1 May 2004, during periods prior to that date.

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Case C-360/10 SABAM v. Netlog

While some consider dark clouds to be gathering above internet freedom in Europe, the Court continues to make judgments that protect fundamental rights and the rights of internet users. In SABAM v. Netlog (Case C-360/10 Sabam v. Netlog) the Court had to decide whether a Belgian court could require Netlog, the Belgian equivalent to Facebook, to immediatly cease making available works from SABAM‘s repertoire. The Court held that not only was the injunction requiring Netlog to install a filtering system, which would oblige Netlog to actively monitor all the data of its users and to prevent future IPR-infringements, contrary to article 15 of Directive 2000/31, it was also contrary to the Charter of Fundamental Rights. National authorities are required to “strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures (para. 43).” Applied to this case, the injunction

would result in a serious infringement of the freedom of the hosting service provider to conduct its business since it would require that hosting service provider to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly (see, by analogy, Scarlet Extended, paragraph 48).

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Case C-282/10 Dominguez

Dominguez, a worker on sick leave for over a year, was denied vacation benefits because a French statute required that a worker should work at least 10 days a year before being able to claim vacation benefits. The Working Time Directive, however, requires all employees to be entitled to 4 weeks of paid vacation.

The duty of consistent interpretation, coined in Marleasing, requires national courts of Member States to interpret national law consistently with EU law. There are of course limits to this way of remedying discrepancies between EU law and national law such as contra legem interpretation.

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Defamation in the digital age

Last October, the grand chamber of the Court ruled in the joined cases of eDate and Martinez (C-509/09 and C-161/10) on the interpretation of Article 5(3) of the Brussels I Regulation (Regulation 44/2001/EC) in cases of alleged infringement of personality rights by means of content placed on an internet website. Article 5(3) grants jurisdiction to the court of the place where the harmful event occurred or may occur.

In earlier case law, Fiona Shevill, the Court had held that in case of defamation by means of a newspaper article distributed in several Member States, Article 5(3) must be interpreted as giving the victim a choice between fora. Firstly, the victim may bring the action before the courts of the Member State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all of the harm caused by the defamation. Secondly and alternatively, the victim may bring the action before the courts of each Member State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, and which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised (paragraph 33 of Shevill). Could these criteria be applied in cases where the defamatory content was published on the internet?

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Eco-imperialism? The Court’s ATAA-judgment

Delivered on the 21st of December last year, the Court’s ATAA-judgment (Case C-366/10, The Air Transport Association of America) was a nice Christmas present for EU policy makers, environmentalists, and everyone who takes climate change seriously. The judgment did, however, also provoke some very unchristmaslike responses, enraging all of the EU’s major trading partners (see previous post by J C Lawrence).

What was all the fuss about?

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ICJ Decides Immunities Case

Lest we, in our enthusiasm for EU law, lose sight of the fact that the Member States are still sovereign entities with their own responsibilities under international law, the ICJ’s decision in theJurisdictional Immunities of the State case should prove a good reminder.

The case, brought by Germany against Italy in December 2008 (with Greece intervening), involves a series of civil judgments under Italian law finding Germany liable for damages as a result of serious human rights violations that took place during WWII. These judgments were spurred by the Italian Corte di Cassazione’s decision in the 2004 Ferrini case, which held that Italian courts could hear such claims despite Germany’s assertion of state sovereign immunity. Additionally, Italian courts found that Italy could enforce a Greek judgment involving atrocities committed in the village of Distomo by German troops in 1940 that had been held unenforceable on the grounds of State immunity by both Greek Courts and the European Court of Human Rights.

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EU Emissions Trading Scheme for Airlines Moving Forward

The next step in the ongoing saga of applying the EU Emissions Trading Scheme (EU ETS) to the airline industry came this week, as the European Commission partially activated the Single Union Registry for aircraft.

All aircraft operators subject to the EU ETS will be required to open accounts in the registry, through which they will receive permits and report their annual emissions. The first batch of allowances will be credited to each aircraft operator by 28 February 2012, with the first reporting requirement due by March 2013.

A number of third countries continue to resist the extension of the EU ETS to airlines, and it remains to be seen whether they or their airline industries will follow through on threats not to comply with the EU’s new rules. Stay tuned!

Stem cell research in Brüstle

Who would have thought 60 years ago that the Court of Justice would rule on matters of life and death? In Brüstle (Case C-34/10, Brüstle v. Greenpeace) the Court had to answer questions about the patentability of stem cells derived from human embryos for medical applications (Parkinson’s disease). A German Court had made a preliminary reference to the Court in a procedure between Brüstle and Greenpeace on the interpretation of Directive 98/44/EC.

The Court was pretty cautious in its approach:

 34      The context and aim of the Directive thus show that the European Union legislature intended to exclude any possibility of patentability where respect for human dignity could thereby be affected. It follows that the concept of ‘human embryo’ within the meaning of Article 6(2)(c) of the Directive must be understood in a wide sense.

35      Accordingly, any human ovum must, as soon as fertilised, be regarded as a ‘human embryo’ within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, since that fertilisation is such as to commence the process of development of a human being.

This led the Court to decide that Mr Brüstle research could not be patented: not in Germany, nor in the rest of the EU. Not surprisingly, scientists in the EU are not very happy about the outcome.

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