Thursday, July 01, 2010

This Week in Luxembourg

In the area of Access to Documents law, the Grand Chamber disagreed this week with both AG Kokott and the Court of First Instance. In Technische Glaswerke Ilmenau it held that there is "a general presumption that disclosure of documents in the administrative file (...) undermines protection of the objectives of investigation activities" because it would undermine the ability and willingness of various parties involved to "express themselves freely". The applicant at first instance was a recipient of unlawful state aid.

Also in Access to Documents, the Grand Chamber overruled the CFI's decision to give the applicant, Bavarian Lager, access to the unredacted minutes of a Commission meeting, where the Commission was only prepared to provide the document with the names of certain individuals removed. (Again disagreeing with the AG.) The main problem here is the resolution of a clash between the Access to Documents Regulation and the Data Protection Reglation 45/2001. The ECJ notes that art. 4(1)(b) of the former explicitly refers to the latter, and deduces that privacy must win here.

Continuing the Commission's winning streak to an unprecedented 3/3, it also upheld the Commission's appeal inCommission v. Alrosa (CFI ruling here, AG Kokott's opinion favouring the appellant here), a merger case from the diamonds market, restoring the Commission's original decision. The CFI erred by applying the proportionality analysis of the Commission's refusal to accept Alrosa's commitments (art. 9 of Regulation 1/2003) with the wrong standard: the Commission's decision must be upheld unless it is manifestly erroneous. (par. 63-69).

In E and F, finally, the Grand Chamber considers yet another terrorism case, concluding that the organisation DHKP-C's inclusion on the terrorism list was unlawful prior to 29 June 2007, for failure to give reasons, meaning that such inclusion "can form no part of the basis for a criminal conviction linked to an alleged infringement of Regulation 2580/2001" (par. 62). The ECJ also considers whether certain financial transactions by and for the organisation fall within the ambit of the Regulation, finding that they do.

ECJ judgements:

In Sbarigia, the First Chamber declared the prejudicial question inadmissible on the grounds that the articles of the Treaty the Italian court was asking about were manifestly inapplicable to the case before it. AG Jääskinen had observed (par. 29) that the Court had used four types of solutions when it was presented with a purely internal matter. He preferred the kinder approach of simply replying that EU law did not forbid the national regulation (door no. 2, par. 31). The other two solutions are to leave it to the national court to decide whether the case is purely internal (par. 30) and to ignore the problem (par. 33).

Following the opinion of AG Mazák, the Second Chamber ruled that the General Court erred in law when it decided that the onus was on the applicant/appellant, Knauf Gips, to make clear to the Commission that it was not responsible for/answerable for the entire Knauf Group, or be estopped from making this argument before the Community Courts. (par. 87-92). In the words of Judge Arabadjiev, "such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence" (par. 91). Knauf Gips v. Commission.

The Fourth Chamber ruled in the Polish number portability case, holding that the telecoms regulator has to take into account the actual costs incurred by the operator when setting the charge for portability. Cf. art. 30(2) of Directive 2002/22. However, the regulator is allowed to set the charge for number portability below costs "when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility".Polska Telefonia Cyfrowa.

General Court:

The Sixth Chamber (extended) of the General Court tackled a difficult competition case in the area of pharmaceuticals and patents. The Commission had a problem with the way AstraZeneca handled the possibility of competition from generic products and parallel imports in Scandinavia. (Cf. Commission Decision.) Most of the Commission's Decision has now been upheld, but not all of it. The fines have been reduced from € 46 million to € € 40,25 million and from € 14 million to € 12,25 million. AstraZeneca v. Commission.

Italy lost an Altmark (= compensation for universal service obligations, etc.) case before the General Court. The preferential electricity rates it gave to steel manufacturer Terni were not justified by the nationalisation, in 1962, of Terni's hydoelectric plant. Compensation for such a "one-off" expropriation of assets has to be similarly "one-off". Italy v. Commission and ThyssenKrupp v. Commission.

In what I think is the first ruling on the bank bailouts, the Fifth Chamber upheld the Commission's finding that an Italian system of special "tax incentives" for restructured banks constituted unlawful state aid. (Cf. Commission Decision 2008/711.) BNP Paribas and BNL v. Commission.

The Fifth Chamber also upheld the Commission's Decision that there were no serious difficulties with the French Government's Decision to add € 150 million to the capital of France Télévisions. Joined Cases M6 v. Commission and TF1 v. Commission.


AG Kokott concluded that Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings covered only victims who were natural persons, i.e. not corporations. Eredics (DE, FR)

Also of possible interest is the WTO DSB's finding in the Airbus state aid case, which is here. They found that the aid given to Airbus was mostly against WTO rules.

Also, the European Commission has handed down a second massive cartel fine in as many weeks, following last weeks bathroom equipment manufacturers cartel. This week, the culprits are 17 steel manufacturers, who are fined for € 518 million. (Press Release) More than half of that sum is for ArcelorMittal, because this was their third offense, while the German company DWK Saarstahl gets away with no fine at all because it was the one that snitched. The total for Almunia now stands at about € 1,5 billion.

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