Regulatory case law, January 2015: protection of databases and ownership changes in frequency allocation

In the first month of 2015 the European Court of Justice ruled on the legal protection of databases in 3rd party use, modification of ownership in frequency allocation and copyright in placing protected photographs online.

Information society

Case C 30/14, Ryanair on legal protection of databases, which are not protected by copyright or the sui generis right and contractual limitation on the rights of users of the database

In case C 30/14, Ryanair Ltd v PR Aviation BV the request for a preliminary ruling relates to the interpretation of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20). That request has been made in proceedings between Ryanair and PR Aviation concerning the use by the latter, for commercial purposes, of data from Ryanair’s website. The Court ruled that Directive 96/9/EC must be interpreted as meaning that it is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.

Case C-282/13 T- Mobile Austria on rights of use for radio frequencies and numbers

Court in case C-282/13 T- Mobile Austria on rights of use for radio frequencies and numbers and right of appeal against a decision of a national regulatory authority. The Court interpreted the meaning of ‘undertaking affected by a decision of a national regulatory authority’, transfer of individual rights to use radio frequencies and reallocation of rights to use radio frequencies following the merger of two undertakings.

The request for a preliminary ruling concerns the interpretation of Articles 4 and 9b 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) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘the Framework Directive’), and Article 5(6) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140 (‘the Authorisation Directive’).

It has been made in proceedings between T-Mobile Austria and the Telekom-Control-Kommission ‘the TCK’ concerning the TCK’s refusal to grant T-Mobile Austria status as a ‘party’ to a procedure for the authorisation of the modification of the ownership structure resulting from the takeover of Orange Austria Telecommunication GmbH (‘Orange’) by Hutchison 3G Austria GmbH, now Hutchison Drei Austria GmbH (‘Hutchison Drei Austria’), and the possibility of bringing an appeal against the decision adopted by the TCK at the end of that procedure. The Court ruled that Articles 4(1) and 9b of Directive 2002/21/EC, must be interpreted as meaning that an undertaking, in circumstances such as those of the case before the referring court, may be regarded as a person ‘affected’, where that undertaking, which provides electronic communications networks or services, is a competitor of the undertaking or undertakings party to a procedure for the authorisation of a transfer of rights to use radio frequencies and the addressees of the decision of the national regulatory authority, and where that decision is likely to have an impact on that first undertaking’s position on the market.

Case C-441/13 Hejduk on special jurisdiction in matters relating to tort, delict or quasi-delict in copyrights.

The request for a preliminary ruling concerns the interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). It has been made in proceedings between Ms Hejduk, domiciled in Vienna (Austria), and EnergieAgentur, which has its seat in Düsseldorf (Germany), concerning an application for a declaration of an infringement of copyright as a result of photographs created by Ms Hejduk being made available on the website of EnergieAgentur without her consent.

The Court held that article 5(3) of Council Regulation (EC) No 44/2001 must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.

 

Competition

C-518/13 - Eventech the Court on allowing London taxis to use bus lanes while prohibiting private hire vehicles from doing so does not appear to involve State aid

C-518/13 – Eventech the Court on allowing London taxis to use bus lanes while prohibiting private hire vehicles from doing so does not appear to involve State aid. Since taxis are in a factual and legal situation which is distinct from that of private hire vehicles, that permission does not appear to be such as to confer, through State resources, a selective economic advantage

The request for a preliminary ruling concerns the interpretation of Article 107(1) TFEU.It has been made in proceedings between Eventech and the Parking Adjudicator concerning the lawfulness of a policy implemented by Transport for London (‘TfL’) and by the majority of London Boroughs which consists in permitting London taxis (‘Black Cabs’) to use most London bus lanes during the hours when the bus lane restrictions are operational, while prohibiting private hire vehicles (‘minicabs’) from using those bus lanes, except for the purpose of picking up and setting down passengers who have pre-booked such a vehicle (‘the bus lanes policy’).

The Court ruled the practice of permitting, in order to establish a safe and efficient transport system, Black Cabs to use bus lanes on public roads during the hours when the traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except in order to pick up and set down passengers who have pre-booked such vehicles, does not appear, though it is for the referring court to determine, to be such as to involve a commitment of State resources or to confer on Black Cabs a selective economic advantage for the purpose of Article 107(1) TFEU. It is conceivable that the practice of permitting Black Cabs to use bus lanes on public roads during the hours when the traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except in order to pick up or set down passengers who have pre-booked such vehicles, may be such as to affect trade between Member States within the meaning of Article 107(1) TFEU, which it is for the referring court to determine.

Case T - 1/12 France v European Commission dismisses France’s action and thereby confirms that the aid granted to SeaFrance was indeed incompatible with the internal market

SeaFrance, now wound up, was a French public limited company that was indirectly 100% owned by the French public entity the SNCF. It operated maritime passenger and freight transport services between the ports of Calais and Dover. In 2009, SeaFrance owned six vessels and employed 1 550 staff. From 2008, SeaFrance’s financial situation systematically deteriorated owing to unfavourable conditions, internal difficulties and industrial action. The SNCF therefore set up a credit line in favour of SeaFrance.

By decision of 24 October 2011,2 the Commission found that the rescue aid agreed in 2010 and the restructuring measures set out in the 2011 plan (recapitalisation and loans) constituted State aid incompatible with the internal market. The Commission therefore ordered that the rescue aid granted in 2010 be recovered. France was challenging the Commission’s decision before the General Court of the European Union and was seeking its annulment. The Court dismissed the action and explained the various measures, having regarded in particular to their timescale, their purpose and SeaFrance’s circumstances at the time are so closely linked that they are inseparable as regards the private investor test. A private investor in a market economy would not have implemented in respect of SeaFrance all the measures implemented by the SNCF. Finally, the General Court considered that the Commission correctly assessed the compatibility of the SeaFrance restructuring aid with the internal market.

Case T-355/13 - easyJet Airline v Commission provides clarification as to the functioning of the European Network of Competition Authorities.

The General Court in case T-355/13 – easyJet Airline v Commission provides clarification as to the functioning of the European Network of Competition Authorities. The European Commission was justified in law in rejecting the complaint lodged by easyJet against Schiphol airport’s pricing on the basis that that complaint had already been dealt with by a national competition authority.

Case T-58/13 - Club Hotel Loutraki and Others on lottery and state aid

General Court in case T-58/13 – Club Hotel Loutraki and Others v Commission held that the exclusive right of the Greek gambling body to operate 35 000 Video Lottery Terminals and 13 games of chance does not constitute State aid.

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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