Today was the long-awaited (by competition lawyers) ruling
in Expedia
v. Autorité de la concurrence and Others. AG
Kokott took a serious trip in uncharted territory in this case, when trying
to sort out what to do with a case that is based on a case of behaviour that is
anticompetitive by object but not by intent, and that is alleged to be de
minimis. The Court (Judge Lõhmus) agreed that the sole criterion is that
there has to be an “appreciable restriction of competition”, but otherwise
skipped over the details. Cf. Competition Policy Blog and Kartellblog
To the surprise of (pretty much) no one, the Court (Judge
Von Danwitz) followed AG
Mengozzi and slapped down the Parliament’s most recent attempt to reduce
its number of trips to Strasbourg by one. France
v. Parliament Cf. Euractiv, ECJ Blog
and France
v. Parliament (1997)
Yet more Court (Judge Ó Caoimh) interference in what we
might consider the outer reaches of social security: “Article 45 TFEU must be
interpreted as precluding legislation of a Member State which makes the grant
to employers of a subsidy for the recruitment of unemployed persons aged over
45 years subject to the condition that the unemployed person recruited has been
registered as a job seeker in that same Member State, in the case where such
registration is subject to a condition of residence in the national territory”.
Caves
Krier Frères v. Directeur de l’Administration de l’emploi
In Forposta
and ABC Direct Contact v. Poczta Polska, the Court (Judge Juhász) held that
Polish public procurement law was a little bit too generous with automatically
excluding bidders for past misconduct. Cf. art. 45(2)(d) of Directive
2004/17, which only allows such exclusion in cases of “grave professional
misconduct”.
AG Jääskinen delivered the second batch of opinions in the 1st
railway package infringement cases:
- Commission v. Luxembourg (NL, DE, FR): The AG agreed with the Commission that the capacity allocation body was insufficiently independent from the incumbent passenger transport company.
- Commission v. Poland (DE, FR): The AG agreed with the Commission that Poland had failed to create sufficient incentives for the infrastructure company to reduce its operational costs and the track access charges, and that it had unlawfully allowed indirect costs to be taken into account for the calculation of the track access charges. The AG did not agree, however, that Poland had failed to create the circumstances for the infrastructure to be managed without structural financial shortfalls, or that it had failed to sufficiently unbundle.
- Commission v. Czech Republic (DE, FR): The AG agreed with the Commission that the Czech legal maximum for track access charges was unlawful, that it failed, like Poland, to create proper cost-reduction and access charges-reduction incentives, that its track access charging system is insufficiently performance-related, and that the Czech transport ministry has too much power over the regulator. He disagreed, however, with the Commission’s objection to the range of costs that are taken into account for access charging and its objection to the insufficient scope of powers of the regulator.
- Commission v. France (NL, DE, FR): The AG agreed with the Commission that the French capacity allocator is insufficiently independent from SNCF, and that France does not have a sufficient incentive system for the infrastructure manager as required by art. 11 of Directive 2001/14. He disagreed with the Commission, however, regarding the need for an incentive system more generally.
- Commission v. Slovenia (NL, DE, FR): Slovenia, too, was judged to have a capacity allocator who is insufficiently independent from its incumbent operator, an infrastructure company insufficiently incentivised to reduce costs and access charges, to improve reliability and performance more generally.
AG Jääskinen also considered the clash between the powers of
football and the powers of the EU. He concluded that UEFA’s and FIFA’s appeals
against the judgements of the General Court should be dismissed. (Cf. General
Court: UEFA
v. Commission, FIFA
v. Commission and FIFA
v. Commission) The European and World Championships stay on the open net. UEFA
and FIFA v. Commission
On the very same day that the
Parliament voted to approve the
unitary patent, AG Bot argued that the action against this enhanced
cooperation project by the two nay-sayers, Spain and Italy, should be rejected.
He argued that the most interesting objection – of failure to respect the
judicial system of the Union (cf. opinion
1/09) – was inadmissible, because it was too early. Also fun: the AG did
not seem to have a problem with judging the “last
resort condition”. I would have thought it was non-justiciable. Spain
and Italy v. Council
AG Kokott had an opinion in Ziegler
v. Commission, rejecting a stack of objections against the
General Court’s judgement regarding its application of the de minimis
notice and the motivation of the level of the fine, including the alleged
failure of the Commission to take into account the applicant’s financial
difficulties in setting the fine.
Former Judge Melchior Wathelet has returned to Luxembourg,
this time as an Advocate-General. In his first opinion, he argues that
“European Union law must be interpreted as meaning that, where a Member State
levies a tax incompatible with European Union law – in the present case,
Article 110 TFEU – that State must repay the amount of the tax and pay interest
on that amount from the date of the payment by the taxpayer”, a conclusion he
reaches without invoking more general principles of EU law or the Charter. Irimie
v. Administraţia Finanţelor Publice Sibiu and Administraţia Fondului pentru
Mediu
In the General Court, Electrabel lost its competition law
challenge against Commission
Decision C (2009) 4416, whereby the Commission imposed a fine of € 20 million
for having gone through with the acquisition of the Compagnie nationale du
Rhône before notifying the Commission. Ultimately, the acquisition was
approved, but Electrabel still got a fine for being four years late asking.
Electrabel v. Commission (FR)
In yet another asset freeze case relating to the Iranian
nuclear programme, the Court annulled the Council’s decision against Sina Bank
for a failure to state (sufficient) reasons. Sina
Bank v. Council
Also in the General Court there were four challenges against
the
Commission’s Decision in the Calcium Carbide and Magnesium cartel case,
none of them successful. The total haul stays at € 61 million, with Akzo Nobel
being the snitch that got away for free. Novácke
chemické závody v. Commission, 1.
Garantovaná a.s. v. Commission, Ecka
Granulate and non ferrum Metallpulver v. Commission and Almamet
v. Commission Cf. the
Antitrust Hotch Potch regarding the question of whether the Commission
sufficiently took into account the applicants’ ability to pay
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