Brussels Brief - July 3, 2009
July 3, 2009
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Key Developments
Energy: Council Adopts Third Energy Liberalisation Package
Lawrence Grabau
The Council of the European Union has voted to adopt the five legislative measures that comprise the third energy liberalisation reform package. The measures put in place the regulatory framework needed to make the opening of the energy market fully effective and to create a single EU gas and electricity market.
The package consists of: i) a Directive establishing common rules for the generation, transmission, distribution and supply of electricity; ii) a Directive establishing common rules for the transmission, distribution, supply and storage of natural gas; and iii) a Regulation on conditions for access to the network for cross-border exchanges in electricity and gas; and a Regulation establishing an Agency for the Co-operation of Energy Regulators.
The measures are expected to be published in the Official Journal in August 2009. Member States will have 18 months to implement the rules.
State Aid: Italy Referred to the ECJ for Failure to Recover Illegal Social Security Exemption Aid
Teresa Arnoni
The European Commission has decided to refer Italy to the European Court of Justice (ECJ) for failure to implement an April 2004 judgment confirming a 1999 Commission decision that ordered the recovery of illegal State aids granted by Italy in the form of exemptions from social security contributions.
In its 1999 decision, the Commission found that part of the aid granted by Italy was incompatible with the Single Market. In 2004, the ECJ ruled that Italy had not taken the measures necessary for the recovery of the aid. To date, Italy has recovered only 20 per cent of the total aid, estimated at about EUR 281 million.
The Commission has requested sanctions on Italy's infringement comprising daily penalty payments and a lump sum payment covering the period since the Court's previous judgment in 2004.
Trade Mark: CFI Dismisses Action to Block Trade Mark Registration
Matthew Kopetski
The Court of First Instance (CFI) has dismissed Danjaq’s action against Mission Productions to block the registration of the word sign “Dr. No” as a Community trade mark. The CFI dismissed this action because Danjaq had failed to establish that the word signs “Dr. No” and “Dr. NO” were used as trade marks or that the title of the film “Dr. No” was used in the course of trade.
In 2001, Mission Productions, a media company based in Germany, applied to the Office of Harmonization for the Internal Market (OHIM) to register the word sign “Dr. No” as a Community trade mark. Danjaq, a U.S. company that manages the intellectual property rights to the “James Bond” films, opposed this registration, arguing that (i) it would be confused with its earlier and already well known marks and (ii) these earlier word signs are non-registered marks used in the course of trade. OHIM rejected Danjaq’s claim, finding that it had failed to provide sufficient evidence to prove its arguments. Danjaq appealed against this decision to the CFI.
The CFI agreed with OHIM’s analysis. The Court noted that the purpose of a trade mark is to identify the commercial origin of particular set of goods or services. It then found that the word signs “Dr. No” and “Dr. NO” do not serve this purpose, but instead help differentiate that film from other films in the ”James Bond” series. Finally, the CFI noted that, although copyright protection cannot be relied upon in trade mark opposition proceedings, it may be used in later proceedings seeking to declare a registered Community trade mark invalid.
Tax: Commission Refers Luxembourg to ECJ over Savings Tax Directive
Jacques Pieters
The European Commission has referred Luxembourg to the European Court of Justice (ECJ) for failing to amend its practice in relation to taxing at source the interest received by non-residents on savings held in Luxembourg. The Savings Tax Directive provides for exchange of information between EU Member States relating to interest on savings held by non-residents. Through a separate treaty, a similar system has been agreed upon with Switzerland. In practice this means that, for example, the Netherlands will notify the French tax authorities of interest payments received by a French resident on a Dutch savings account. It is then up to the French Government to decide whether or not to tax this interest.
Austria, Belgium, Luxembourg and Switzerland have opted not to exchange this type of information. Instead, these countries have committed to tax such interest payments at source and pass the proceeds (partially) on to the relevant countries, without giving more detailed information about the individual non-resident.
Luxembourg, however, refuses to apply this tax at source to individuals benefiting from "non-domiciled resident" status in their country of residence (mainly Ireland, Malta and the United Kingdom). This seriously erodes the basic principles that underlie the Savings Tax Directive.
This discussion may be overtaken by changes to bank secrecy legislation. Belgium and Luxembourg were included in the Organisation for Economic Co-operation and Development tax havens "grey list" in April 2008. Belgium has already announced it will change its bank secrecy legislation and Luxembourg is expected to follow suit shortly.
NEXT WEEK’S EVENTS
Monday 6 July – Friday 10 July 2009
COUNCIL MEETINGS
No Council meetings scheduled for next week
COURT OF JUSTICE
Judgments
Approximation of laws
C-558/07 S.P.C.M. and Others
Area of Freedom, Security and Justice
C-204/08 Rehder
C-272/08 Commission v Spain
Competition
511/06 P Archer Daniels Midland v Commission
Environment and consumers
C-557/08 Commission v United Kingdom
Freedom of movement for persons
C-469/08 Commission v Belgium
C-556/08 Commission v United Kingdom
State aid
C-369/07 Commission v Greece
C-319/07 P 3F
Taxation
C-397/07 Commission v Spain
Opinion
Company law
C-199/07 Commission v Greece
Environment and consumers
C-226/08 Stadt Papenburg
Principles of Community law
C-118/08 Transportes Urbanos y Servicios Generales
Social policy
C-555/07 Kücükdeveci
Taxation
C-246/08 Commission v Finland
C-182/08 Glaxo Wellcome
C-267/08 SPÖ Landesorganisation Kärnten
COURT OF FIRST INSTANCE
Agriculture
T-373/05 Italy v Commission
Competition
T-450/05 Peugeot and Peugeot Nederland v Commission
Customs union
T-219/07 DSV Road v Commission
Environment and consumers
T-238/07 Ristic and Others v Commission
Intellectual property
T-230/07 Laboratorios Del Dr. Esteve v OHMI - Ester C (ESTER-E)
T-28/08 Mars v OHMI - Ludwig Schokolade (Forme d'une barre chocolatée)
T-71/08 Promat v OHMI - Prosima Comercial (PROSIMA PROSIMA COMERCIAL S.A.)
T-225/08 Mineralbrunnen Rhön-Sprudel Egon Schindel v OHMI - Schwarzbräu (ALASKA)
T-226/08 Mineralbrunnen Rhön-Sprudel Egon Schindel v OHMI - Schwarzbräu (Alaska)
T-257/08 Biotronik v OHMI (BioMonitor)
