EU regulatory case law, June 2014: on-screen copyright and access to optical networks

In this issue of Aphaia’s monthly series on EU regulatory case law find out, among other, what the EU Court of Justice says about creating copies of an internet site on-screen and the NRA’s right to impose the obligation of access to optical networks.

 

Information society

Case C 360/13 - Public Relations Consultants Association on creation of copies of an internet site on-screen and in the cache of the hard disk in the course of browsing the internet

In Case C‑360/13 request for a preliminary ruling concerned the interpretation of Article 5(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

The Court held that article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders.

Communication

Case C-556/12 - TDC on obligation relating to access to and use of specific network elements and associated facilities

The request for a preliminary ruling in the case C-556/12 – TDC has been made in proceedings between TDC A/S (‘TDC’), a telecommunications operator, and the Teleklagenævnet (Telecommunications Complaints Board) concerning the obligation to install drop cables, at the request of another electronic communications operator, to enable end-users to have access to the fibre optic network.

The request concerned the interpretation of Articles 2, 8 and 12 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (‘the Access Directive’).  The Court held that the national regulatory authority has the power to impose on an electronic communications operator that has significant market power on a specific market, pursuant to the obligation to meet reasonable requests for access to, and use of, specific network elements and associated facilities, an obligation to install, at the request of competing operators, a drop cable not exceeding 30 metres in length connecting the distribution frame of an access network to the network termination point at the end-user’s premises, as long as that obligation is based on the nature of the problem identified, proportionate and justified in the light of the objectives set out in Article 8(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by the Access Directive, which is a matter for the referring court to verify. National regulatory authority, when minded to require an electronic communications operator that has significant market power on a specific market to install drop cables for the purpose of connecting the end-user to a network, has to take into account the initial investment made by the operator concerned and the existence of a price control that makes it possible to recover the costs of installation.

Energy

Case C 198/12, Commission v Bulgaria on obligation to guarantee maximum virtual reverse flow gas capacity

In Case C‑198/12, Commission v Bulgaria,  the Court of Justice of the European Union  dismissed European Commission’s action under Article 258 TFEU for failure to fulfil obligations.

By its action, the European Commission asked the Court to declare that, by not providing services for virtual reverse flow gas transmission to all market participants, the Republic of Bulgaria has failed to fulfil its obligations under Articles 14(1) and 16(1) and (2)(b) of Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36).   The Court helda that it is apparent that Articles 14(1) and 16(1) and (2)(b) of Regulation No 715/2009 do not establish an obligation to provide a virtual reverse flow transmission capacity.

Competition

Case C 557/12 Kone and Others on damages for the loss caused by a cartel - loss resulting from the higher price charged by an undertaking as a result of a prohibited cartel to which it is not a party (‘Umbrella pricing’)

The request for a preliminary ruling  has been made in proceedings between undertakings that were parties to cartels relating to the installation and maintenance of elevators and escalators in numerous Member States, and a subsidiary of Austrian Federal Railways, regarding the possibility of claiming compensation for damage suffered owing to the charging of higher prices while contracts with undertakings not party to those cartels were being concluded. The Court of Justice of the European Union held that article 101 TFEU must be interpreted as meaning that it precludes the interpretation and application of domestic legislation enacted by a Member State which categorically excludes, for legal reasons, any civil liability of undertakings belonging to a cartel for loss resulting from the fact that an undertaking not party to the cartel, having regard to the practices of the cartel, set its prices higher than would otherwise have been expected under competitive conditions.

With regard to the question of unlawfulness in Austrian law, the act of causing pecuniary loss entails an obligation to provide compensation only if the unlawfulness of the loss stems from a breach of contractual obligations, a breach of absolute rights or a breach of protective provisions. According to the referring court, the decisive factor is therefore whether the provision infringed by the person responsible for the loss had as its object the protection of the injured person’s interests. Such is not the case in the practice of umbrella pricing, which involves no relationship of unlawfulness. The unlawful conduct of the cartel members seeks to injure those who buy their goods at the artificially high prices they charge. The loss caused by the umbrella pricing is merely a side-effect of an independent decision that a person not involved in that cartel has taken based on his own business considerations. The referring court noted that the question whether, under EU law, the loss resulting from the effect of umbrella pricing must give rise to compensation is highly controversial in both German and Austrian academic writings. By virtue of the primacy of EU law, the question referred is of decisive importance, owing to the existing uncertainty as to whether denial of the right to compensation is compatible with the principle of effectiveness developed by the Court. The Court stressed out that full effectiveness of Article 101 TFEU would be put at risk if the right of any individual to claim compensation for harm suffered were subjected by national law, categorically and regardless of the particular circumstances of the case, to the existence of a direct causal link while excluding that right because the individual concerned had no contractual links with a member of the cartel, but with an undertaking not party thereto, whose pricing policy, however, is a result of the cartel that contributed to the distortion of price formation mechanisms governing competitive markets.

Case C 37/13 P - Nexans and Nexans France v Commission — Regulation (EC) No 1/2003

Regulation (EC) No 1/2003 — Administrative procedure — Inspection — Decision ordering an inspection — Obligation to state reasons — Reasonable grounds — Geographic market

By their appeal, Nexans and Nexans France, seek to have set aside the judgment of the General Court of the European Union in Nexans France and Nexans v Commission, T‑135/09, by which that court partially dismissed their action for annulment of Commission Decision ordering Nexans and its subsidiary Nexans France to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1) and of several decisions adopted in the course of that inspection. The Court dismissed the appeal.

Case C 243/12 P - FLS Plast v Commission - Agreements, decisions and concerted practices — Plastic industrial bags sector

Agreements, decisions and concerted practices — Plastic industrial bags sector — Obligation to state reasons — Attribution to the parent company of the infringement committed by the subsidiary — Liability of the parent company for payment of the fine imposed on the subsidiary — Proportionality — Proceedings before the General Court — Adjudication within a reasonable time

By its appeal, FLS Plast asks the Court to set aside the judgment of the General Court of the European Union in Case T‑64/06 FLS Plast v Commission by which the General Court dismissed in part its action for annulment of Commission Decision relating to a proceeding pursuant to Article 81 [EC] or, in the alternative, for reduction of the fine which was imposed upon it by that decision. The Court dismissed the appeal.

C-578/11 P - Deltafina v Commission- Agreements, decisions and concerted practices — Italian market for the purchase and first processing of raw tobacco

Italian market for the purchase and first processing of raw tobacco – Immunity from fines – Obligation to cooperate – Rights of the defence – Limits of judicial review – Right to fair legal process – Hearing of witnesses or of parties – Reasonable time – Principle of equal treatment.

By its appeal, Deltafina seeks, principally, firstly, to have the judgment of the General Court in Case T‑12/06 Deltafina v Commission, by which that Court dismissed its action seeking the annulment and, in the alternative, the reduction of the fine imposed by Commission Decision relating to a proceeding under Article 81(1) [EC] set aside and, secondly, the annulment of that decision, in so far as it concerns Deltafina, and the annulment or reduction of the fine imposed on it by that decision and, in the alternative, to have the matter referred back to the General Court. The Court dismissed the appeal.

T-286/09 - Intel v Commission on abuse of dominant position in microprocessors market

Abuse of dominant position — Microprocessors market — Decision finding an infringement of Article 82 EC and Article 54 of the EEA Agreement — Loyalty rebates — ‘Naked’ restrictions — Classification as abuse — As-efficient-competitor analysis — Commission’s international jurisdiction — Obligation on the Commission to investigate — Limits — Rights of the defence — Principle of sound administration — Overall strategy — Fines — Single and continuous infringement — 2006 Guidelines on the method of setting fines

In case T-286/09 Intel Corp. v Commission  the General Court upheld the fine of €1.06 billion imposed on Intel for having abused its dominant position on the market for x86 central processing units between 2002 and 2007.  Intel’s action against the Commission’s decision is dismissed in its entirety.

Ines Grah

Ines Grah

Ines Grah, Aphaia’s guest blogger, holds a law degree in state aid and is currently writing a thesis on individuals’ access to the EU Court of Justice as part of the doctoral programme of the Faculty of Law at the University of Ljubljana.
Ines Grah

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