Regulatory case law, December 2014: waste management, green electricity and dominant position in mobile telephony

In the last month of 2014 the European Court of Justice dealt with failures to comply with waste management obligations, privacy concerns stemming from homeowners recording public spaces while protecting their property, abuses of dominant position in telecoms, and exemptions from the obligation of purchasing green electricity.

Environment

Case C-551/13 SETAR on possibility for the waste producer to carry out the waste treatment independently and on expiry of the transposition period and direct effect of directive

In case C-551/13 SETAR, request for a preliminary ruling concerned the interpretation of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2003 L 312, p. 3).

The request has been made in proceedings between SETAR, proprietor of a hotel complex in the locality of S’Oru e Mari (Italy) in the Comune di Quartu S. Elena, concerning SETAR’s refusal to pay the municipal tax for the disposal of solid urban waste (‘the TARSU’). Question whether it is permissible for a private party to organise the disposal of its waste independently and accordingly to be exempted from liability for payment of the related municipal tax, and whether EU law precludes national legislation transposing Article 15(1) of Directive 2008/98 into national law in respect of which the entry into force is delayed pending the adoption of new national legislation laying down the technical rules and specifying the deadline for its entry into force was referred to Court for a preliminary ruling.

The Court ruled that EU law and Directive 2008/98/EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which transposes into national law a provision of that directive, but the entry into force of which is deferred pending the adoption of a subsequent internal measure, if that entry into force takes place after the end of the transposition period prescribed by the directive. Article 15(1) of Directive 2008/98/EC, read in conjunction with Articles 4 and 13 of that directive, must be interpreted as not precluding national legislation under which no provision is made permitting a waste producer or waste holder to dispose of that waste independently and accordingly to be exempted from liability for payment of a municipal tax for the disposal of waste, provided that that legislation meets the requirements entailed by the principle of proportionality.

Case C-196/13 Commission v. Italy on failure of Italy to fulfil obligations on waste management

The Court in the case C-196/13 Commission v. Italy declared that, by failing to adopt all the measures necessary to ensure compliance with the judgment in Commission v Italy C 135/05, the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU.

It ordered the Italian Republic to pay the European Commission, from the day on which the present judgment is delivered until the judgment in Commission v Italy has been complied with, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 42 800 000, from which the sum of EUR 400 000 is to be deducted in respect of each of the sites containing hazardous waste that has by then been brought into conformity with the judgment in Commission v Italy and the sum of EUR 200 000 is to be deducted in respect of every other site that has by then been brought into conformity with that judgment. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of an initial amount — being the amount of the penalty payment set for the preceding six-month period — from which the same deductions are to be made in respect of sites, covered by the finding of a failure to fulfil obligations, that have been brought into conformity during the six-month period under consideration. The Court ordered the Italian Republic to pay the European Commission, a lump sum of EUR 40 million and to pay the costs.

Since the Commission issued the reasoned opinion on 26 June 2009, the reference date for assessing whether there has been a failure to fulfil obligations is the deferred deadline of 30 September 2009. The Court observed that it is common ground in the present case that, on expiry of the deferred deadline, cleaning-up works for certain sites were still in progress or had not been started. In respect of other sites, the Italian Republic has not provided any information that would make it possible to establish the date on which the cleaning-up operations, if any, were implemented.

The inevitable conclusion is that the cleaning-up works required for the sites referred to by the Commission had not been completed by the deferred deadline. It follows that the Commission’s complaint alleging the continuing infringement of Article 4 of Directive 75/442 is well founded. The Italian Republic in no way contends that, where the holder of the waste in question did not recover or dispose of it, that waste was handled by a private or public waste collector or by an undertaking which carries out those operations. That Member State submits only that the sites in question had been closed down by the deferred deadline and that the relevant criminal penalties laid down in Italian law are adequate. It follows that, on the expiry of the deferred deadline, the Italian Republic continued to default on the specific obligation imposed on it by Article 8 of Directive 75/442, and that the Commission’s complaint regarding the infringement of that provision must be upheld.  In the present case, suffice it to state that the Italian Republic has not contended — still less proved — that, by the deferred deadline, it had exhaustively recorded and identified, in accordance with Article 2(1) of Directive 91/689, all the hazardous waste discharged in the landfills referred to by the Commission.

On that date, therefore, the Italian Republic still failed to ensure compliance with the obligation arising under that provision. It should be observed that the Italian Republic in no way contends that conditioning plans for the purposes of Article 14 of Directive 1999/31 for the sites in question were filed with the competent authority. The Italian Republic states merely that, by the deferred deadline, all the landfills had been closed down. However, as can be seen from that Member State’s pleadings, some of those landfills were opened without a permit and no formal closing-down measure was adopted for those sites. In those circumstances, the inevitable conclusion is that, on that date, the Italian Republic also still failed to fulfil its obligations under Article 14(a) to (c) of Directive 1999/31. The Court concluded that, by failing to adopt, by the deferred deadline, all the measures necessary to ensure compliance with the judgment in Commission v Italy, the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU.

Case C‑378/13 Commission v. Greece on failure of Greece to fulfil obligations on waste management

In case C 378/13 Commission v. Greece the Court declared that, by failing to adopt all the measures necessary to comply with the judgment in Commission v Greece C 502/03, the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU.

It ordered the Hellenic Republic to pay to the Commission, from the day on which judgment is delivered in the present case until the judgment in Commission v Greece has been complied with, in the event that the failure to fulfil obligations established in paragraph 1 of the operative part of the present judgment persists until that day, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 14 520 000, from which the sum of EUR 40 000 is to be deducted in respect of each uncontrolled waste disposal site, covered by the infringement established, that has by then been closed down or cleaned up since 13 May 2014, and the sum of EUR 80 000 is to be deducted in respect of each such site that has by then been both closed down and cleaned up. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of the amount of the penalty payment set for the preceding six-month period, from which the same deductions are to be made in respect of the closing down and/or cleaning up of sites, covered by the failure to fulfil obligations established, effected during the six-month period in question. It ordered the Hellenic Republic to pay to the Commission, the lump sum of EUR 10 million and to pay the costs.

As the Commission sent the Hellenic Republic a supplementary letter of formal notice, in accordance with the procedure laid down in Article 260(2) TFEU, the reference date referred to in the preceding paragraph is the deadline set in that letter, namely, 29 December 2010. However, it is undisputed that, on that date, not all the landfills at issue had been closed down and cleaned up. As regards the Hellenic Republic’s argument concerning the difficulties it had been facing in connection with the closure and cleaning up of all the illegal landfills at issue, the Court recalled that, according to settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under EU law. Therefore by failing to take all the measures necessary to comply with the judgment in Commission v Greece, the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU.

Data protection

Case C‑212/13 Ryneš on concept of ‘in the course of a purely personal or household activity’ in processing of personal data

In case C 212/13 Ryneš, the Court held that the second indent of Article 3(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, does not amount to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.

The Court pointed out that image of a person recorded by a camera constitutes personal data because it makes it possible to identify the person concerned. Similarly, video surveillance involving the recording and storage of personal data falls within the scope of the Directive, since it constitutes automatic data processing. The exception provided for in the directive in the case of data processing carried out by a natural person in the course of purely personal or household activities must be narrowly construed. Accordingly, video surveillance which covers a public space and which is accordingly directed outwards from the private setting of the person processing the data cannot be regarded as an activity which is a ‘purely personal or household activity’. In applying the Directive, the national court must, at the same time, bear in mind the fact that directive makes it possible to take into account the legitimate interest of the person who has engaged in the processing of personal data (‘the controller’) in protecting the property, health and life of his family and himself.

Competition

Case C‑413/13 FNV Kunsten Informatie en Media on definition of ‘undertaking’ and ‘employee’. Provision laying down minimum rates for independent service providers and the substantive scope of Article 101(1) TFEU

The request for a preliminary ruling in case C 413/13 FNV Kunsten Informatie en Media concerns the interpretation of the substantive scope of Article 101(1) TFEU. The request has been made in proceedings between FNV Kunsten Informatie en Media (‘FNV’), a trade union, and the Staat der Nederlanden concerning the validity of a reflection document by which the Netherlands Competition Authority (‘the NMa’) found that the provision of a collective labour agreement setting minimum fees for the supply of independent services is not excluded from the scope of Article 101(1) TFEU.

The Court held that on a proper construction of EU law, it is only when self-employed service providers who are members of one of the contracting employees’ organisations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, are ‘false self-employed’, in other words, service providers in a situation comparable to that of those workers, that a provision of a collective labour agreement, such as that at issue in the main proceedings, which sets minimum fees for those self-employed service providers, does not fall within the scope of Article 101(1) TFEU. It is for the national court to ascertain whether that is so.

Case T-72/09 Pilkington Group Ltd and Others v Commission on agreements, decisions and concerted practices in European car glass market

In the case T-72/09 Pilkington Group Ltd and Others v Commission the General Court upholds the Commission’s decision concerning the Pilkington group’s participation in the car glass cartel. It thus confirms the fine of €357 million imposed on Pilkington.

Pilkington Group forms one of the largest manufacturers of glass and glazing products in the world, in particular in the automobile sector. The Court finds that the Commission was right to characterise the conduct of the members of the cartel as a single and continuous infringement aimed at maintaining overall stability of the participants’ market shares. The Court also notes that Pilkington has not put forward any evidence capable of establishing that its participation in the meetings of the members of the cartel was without any anti-competitive intention and that it distanced itself publicly from what was discussed at those meetings.  As regards the calculation of the fine, the Court considers that the statements made in the contested decision enabled Pilkington to understand the factors on the basis of which the Commission examined the gravity and the duration of the infringement, as well as the method of calculation used in order to set the amount of the fine. As regards Pilkington’s claims that the Court should exercise its unlimited jurisdiction by reducing the fine, the Court considers that, in the light of all the circumstances of the case, the fine appears proportionate and adequate.

Case T-201/11 Si.mobil v. Commission on abuse of dominant position in Slovenian mobile telephone services market

General Court in the case T-201/11 Si.mobil v. Commission (with regard to the retail mobile telephone market) rules on the Commission’s rejection of a complaint on the ground that the competition authority of a Member State is already dealing with the case.

For that purpose, the Commission must be satisfied, on the one hand, that a competition authority of a Member State is dealing with the case that has been referred to the Commission and, on the other, that the case relates to the same agreement, decision of an association, or practice. Provided those two conditions are fulfilled, EU law does not lay down any rules on the allocation of powers as between the Commission and the competition authorities of the Member States, so that Si.mobil did not have a right to have the case dealt with by the Commission. In so far as concerns the wholesale mobile access and call origination services market, the Court rejects Si.mobil’s arguments, sharing the Commission’s view that there was not a sufficient degree of EU interest in conducting a further investigation of the case.

Case T-251/11 Austria v Commission the General Court confirms the Commission’s decision that the partial exemption from the obligation of purchasing green electricity, which Austria plans to grant to energy-intensive businesses, constitutes unlawful State aid

In the case T-251/11 Austria v Commission the General Court confirms the Commission’s decision that the partial exemption from the obligation of purchasing green electricity, which Austria plans to grant to energy-intensive businesses, constitutes unlawful State aid.

Case T-487/11 Banco Privado Português and Massa Insolvente do Banco Privado Português v Commission on state aid in banking sector

In case T-487/11 Banco Privado Português, SA and Massa Insolvente do Banco Privado Português, SA v Commission the General Court confirms the Commission decision ordering the recovery of State aid granted by Portugal to Banco Privado Português.

The Court points out that the Commission was consistent and coherent in its assessment of the State guarantee as an aid measure, since BPP enjoyed an advantage deriving from State resources. The Commission correctly concluded that the risk of BPP’s returning to the market and of the distortion of competition and disruption of trade between Member States did not disappear until the banking licence was actually revoked. According to the Court, the Commission did not err in finding that, given that no restructuring or liquidation plan had been submitted by 5 June 2009, the State guarantee and its extension beyond that date had to be declared incompatible with the internal market. The Court declares that the order for the recovery of the aid is justified by the need to re-establish the situation existing on the market prior to the grant of the guarantee by virtue of which BPP enjoyed an economic advantage liable to affect trade between Member States and to distort competition. The Court confirms, moreover, that the Commission did not err in calculating the amount to be recovered. Nor did it breach the principle of legitimate expectations. Lastly, the Court states that there has been no breach of the principle of equal treatment.

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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