Brussels Brief - May 30, 2008
May 30, 2008
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KEY DEVELOPMENTS
Competition: Commission Opens Formal Proceedings Against Gaz de France Concerning Suspected Gas Supply Restrictions
Juan Gutiérrez
The European Commission has opened antitrust proceedings against the French gas company Gaz de France for a suspected breach of the EC Treaty's rules on abuse of dominant position and restrictive business practices. The initiation of proceedings originates from information obtained during inspections carried out in 2006. The potential infringement consists of behaviour that might prevent or reduce competition on downstream supply markets for natural gas in France through, in particular, a combination of long-term reservation of transport capacity and a network of import agreements, as well as through underinvestment in import infrastructure capacity. The suspected practices are allegedly being carried out by Gaz de France SA, its subsidiaries and the companies under its control. There is no strict deadline to complete inquiries into anticompetitive conduct. Their duration depends on a number of factors including the complexity of each case, the extent to which the undertakings concerned cooperate with the Commission and the exercise of the rights of defence.
Internal Market: Commission Declares “Home Grown Player” Rule in Football Legal
Benoît Keane
The European Commission has issued a statement endorsing UEFA’s “home grown player” rule. Home grown players are players who, regardless of their nationality or age, have been trained by their club or by another club in the same national football association for at least three years between the ages of 15 and 21. UEFA’s rule requires clubs to field a minimum number of home grown players in European football club competitions (such as the UEFA Champions League). The Commission considers that the rule complies with EU law on the free movement of workers. The Commission stated that the rule was not discriminatory as the rule does not contain any nationality conditions. The Commission considered that the home grown player rule is necessary to ensure that training of young players remains a priority for clubs, to preserve training structures in football and to maintain a competitive balance between clubs. Any concerns that the rule may indirectly discriminate in favour of nationals in the country of the training club were allayed by these objectives, which were being pursued in the interest of sport and young players.
Internal Market: Commission Hosts Conference on Private Copying Levies
Jonathan Aitken
On 27 May 2008, the Internal Market and Services Commissioner hosted an open hearing on "Fair Compensation for Acts of Private Copying". Private copying levies are a form of compensation for rightholders, based on the premise that it is not practical to license acts of private copying such as the making of “home” copies of music, films and books. The levies, which are determined at Member State level, are applied to recording equipment or media that consumers use to make copies of rightholders' works (e.g. MP3 players, blank CDs and DVDs). The Commissioner recognised that, while levies are a valuable component in ensuring the livelihood of the creative community, there is also a need to adapt to technological evolution. He used the hearing to call for the joint formulation of a "roadmap" by both sides of the debate: the collecting societies who administer the levies and the consumer electronics industry that has to pay them.
REACH: Industry Urged to Pre-Register All Chemicals from 1 June 2008
Mélanie Bruneau
Under the EU REACH legislation on the registration, evaluation, authorisation and restriction of chemicals, 30,000 chemicals currently in use must be pre-registered with the European Chemicals Agency (ECHA) between 1 June and 1 December 2008. All EU-based companies that manufacture in, or import chemical substances into, the European Union should pre-register if the quantities of the substance are more than one tonne per year. Pre-registration will allow companies, depending on their situation, to submit their complete registration dossiers by 2010, 2013 or 2018. A company that fails to pre-register a substance by the end of the year may neither import nor manufacture it after that date until it has fully registered that substance with the ECHA.
Competition: Commission Notes Microsoft’s Announcement on Supporting ODF in Office
Daniel Kelly
The European Commission has taken note of Microsoft’s announcement of 21 May 2008 concerning supporting Open Document Format (ODF) in Office. According to Microsoft, while the 2007 Office system already provides support for 20 different document formats, the release of Office Service Pack 2 will expand the list to include support for XML Paper Specification, Portable Document Format (PDF) 1.5, PDF/A and ODF version 1.1. Furthermore, to also provide ODF support for users of earlier versions of Microsoft Office, Microsoft will continue to collaborate with the open source community in the ongoing development of the Open XML-ODF translator project. Having opened a formal investigation against Microsoft in January 2008 to determine whether Microsoft’s new file format, Office Open XML, was sufficiently interoperable with competitors’ products, the Commission stated that it would welcome any steps that Microsoft took towards genuine interoperability, more consumer choice and less vendor lock-in. The Commission is also said to be taking a closer look at the voting process behind the adoption of Office Open XML as a standard.
Internal Market: Advocate General Opinion on Hungarian Company Law
Geert Dierickx
In November 2005, the Hungarian company, Cartesio, requested the Commercial Court to record the transfer of its operational headquarters to Italy. Despite the transfer to Italy, Cartesio wished to remain incorporated in Hungary. However, pursuant to Hungarian company law, Hungarian companies are not allowed to transfer their operational headquarters to another EU Member State. In order to transfer operational headquarters, Cartesio would need to be dissolved and then reconstituted under Italian law. In order to verify whether the Hungarian rules are in compliance with Community law, Cartesio's case was brought before the European Court of Justice (ECJ). In his opinion of 22 May 2008, the Advocate General found that Hungarian rules treat cross-border situations less favourably than national situations as they only allow companies to transfer their operational headquarters within Hungary. The Advocate General therefore suggested that the ECJ rule that the applicable Hungarian rules are incompatible with the principle of freedom of establishment.
Air Transport: Council Common Position on Proposed Regulation on Operation of Aircraft Services
Martino Sforza
On 27 May 2008, the EU Council published a Common Position to establish common rules for the operation of air services. The proposed regulation will strengthen the existing rules and existing legislation will be repealed. The adoption of the Common Position follows a Commission proposal of July 2006. Under the new regulation, airlines will be obliged to ensure that quoted fares include applicable taxes, charges and fees. The draft regulation also contains a prohibition on price discrimination between passengers, based on their country of residence. Furthermore, the draft regulation introduces new rules on licensing of air carriers and public service obligations in order to discourage Member States from excessive reliance on public service obligations as a basis for closing markets to new entrants.
Competition: Summary of Flat Glass Cartel Decision Published
Bróna Heenan
The European Commission has published a summary of its November 2007 Decision on the EEA flat glass cartel in which it imposed fines totalling EUR 486.9 million (see Brussels Brief, 30 November 2007). This was the second case in which the Commission applied its 2006 Fining Guidelines. The published Decision notes that the reason for the refusal of the Asahi/Glaverbel immunity application was that, by this time inspections had already been carried out and the Commission had, at its disposal, sufficient contemporaneous evidence to find an infringement of Article 81. Nevertheless, due to the value and timing of its application, Ashahi/Glaverbel did get a reduction of 50 per cent on the fines that would otherwise have been imposed.
NEXT WEEK’S EVENTS
Monday 2 June – Friday 6 June 2008
COUNCIL MEETINGS
Eurogroup (2 June 2008)
Economic and Financial Affairs Council (3 June 2007)
Environment Council (5 June 2008)
Justice and Home Affairs Council (5 – 6 June 2008)
Transport, Telecommunications and Energy Council (6 June 2008)
COURT OF JUSTICE
Judgments
Agriculture
C-534/06 Industria Lavorazione Carni Ovine
Common Customs Tariff
C-312/07 JVC France
Environment and consumers
C-308/06 The International Association of Independent Tanker Owners and Others
Free movement of goods
C-170/07 Commission v Poland
Intellectual property
C-507/07 Commission v France
C-395/07 Commission v Germany
Principles of Community law
C-164/07 Wood
Social policy
C-226/06 Commission v France
Opinions
Company law
C-324/07 Coditel Brabant
Law governing the institutions
C-121/07 Commission v France
Social policy
C-310/07 Holmqvist
State aid
C-295/07 P Commission v Département du Loiret
COURT OF FIRST INSTANCE
Judgments
Law governing the institutions
T-141/05 Internationaler Hilfsfonds v Commission
