Thursday, December 13, 2012

This Week in Luxembourg

The Grand Chamber (Judge Arabadjiev) ordered Spain to pay a € 20 million lump-sum fine plus € 50.000 per day for failure to comply with a state aid judgement. Just for fun, look at the timeline: Commission Decision: December 1989, Action for annulment brought: December 1999, Judgement delivered: July 2002, first Commission requests for information: 2004, Commission letter of formal notice: November 2009, Art. 260 TFEU action brought: March 2011, Judgement: December 2012.  Commission v. Spain

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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