Regulatory case law, March 2015: broadcasting sports online, reduced VAT in electronic books and action against an NRA

The European Court of Justice ruled on broadcasting sports online, reduced VAT in electronic books, and taking action against a decision of a regulatory authority.

Information society

Case C‑279/13 C More Entertainment on infringement of copyright and related rights by direct broadcast of a sporting fixture on an internet site

The request for a preliminary ruling concerned the interpretation of Article 3(2) 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 (OJ 2001 L 167, p. 10). It has been made in proceedings between C More Entertainment and Mr Sandberg concerning the placing by him on an internet site of clickable links by means of which internet users can gain access to the live broadcast, on another site, of ice hockey games without having to pay the sum asked by the operator of the other site.

The Court ruled that article must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright.

Case C‑463/12 Copydan Båndkopi on harmonisation of certain aspects of copyright and related rights in the information society

In the Case C 463/12 Copydan Båndkopi the request for a preliminary ruling concerned the interpretation of Articles 5(2)(b) and 6 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 (OJ 2001 L 167, p. 10). It has been made in proceedings between Copydan and Nokia concerning the payment of the levy intended to finance the fair compensation payable under the exception to the reproduction right provided for in Article 5(2)(b) of that directive (‘the private copying levy’).

The Court ruled that article 5(2)(b) of Directive 2001/29/EC does not preclude national legislation which provides that fair compensation is to be paid, in accordance with the exception to the reproduction right for copies made for private use, in respect of multifunctional media such as mobile telephone memory cards, irrespective of whether the main function of such media is to make such copies, provided that one of the functions of the media, be it merely an ancillary function, enables the operator to use them for that purpose.

However, the question whether the function is a main or an ancillary one and the relative importance of the medium’s capacity to make copies are liable to affect the amount of fair compensation payable. In so far as the prejudice to the rightholder may be regarded as minimal, the making available of such a function need not give rise to an obligation to pay fair compensation. Beside that it does not preclude national legislation which makes the supply of media that may be used for copying for private use, such as mobile telephone memory cards, subject to the levy intended to finance fair compensation payable in accordance with the exception to the reproduction right for copies for private use, but does not make the supply of components whose main purpose is to store copies for private use, such as the internal memories of MP3 players, subject to that levy, provided that those different categories of media and components are not comparable or the different treatment they receive is justified, which is a matter for the national court to determine.

It also does not preclude national legislation which requires payment of the levy intended to finance fair compensation, in accordance with the exception to the reproduction right for copies for private use, by producers and importers who sell mobile telephone memory cards to business customers and are aware that those cards will be sold on by those customers but do not know whether the final purchasers of the cards will be individuals or business customers, on condition that: the introduction of such a system is justified by practical difficulties; the persons responsible for payment are exempt from the levy if they can establish that they have supplied the mobile telephone memory cards to persons other than natural persons for purposes clearly unrelated to copying for private use, it being understood that the exemption cannot be restricted to the supply of business customers registered with the organisation responsible for administering the levy; the system provides for a right to reimbursement of that levy which is effective and does not make it excessively difficult to repay the levy and only the final purchaser of such a memory card may obtain reimbursement by submitting an appropriate application to that organisation.

Article 5(2)(b) of Directive 2001/29, read in the light of recital 35 in the preamble to that directive, must be interpreted as permitting the Member States to provide, in certain cases covered by the exception to the reproduction right for copies for private use, for an exemption from the requirement under that exception to pay fair compensation, provided that the prejudice caused to rightholders in such cases is minimal. It is within the discretion of the Member States to set the threshold for such prejudice, it being understood that that threshold must, inter alia, be applied in a manner consistent with the principle of equal treatment.

Directive 2001/29 is to be interpreted as meaning that, where a Member State has decided, pursuant to Article 5(2) of that directive, to exclude, from the material scope of that provision, any right for rightholders to authorise reproduction of their works for private use, any authorisation given by a rightholder for the use of files containing his works can have no bearing on the fair compensation payable in accordance with the exception to the reproduction right for reproductions made in accordance with Article 5(2)(b) of that directive with the aid of such files and cannot, of itself, give rise to an obligation on the part of the user of the files concerned to pay remuneration of any kind to the rightholder.

The implementation of technological measures under Article 6 of that Directive for devices used to reproduce protected works, such as DVDs, CDs, MP3 players and computers, can have no effect on the requirement to pay fair compensation in accordance with the exception to the reproduction right in respect of reproductions made for private use by means of such devices. However, the implementation of such measures may have an effect on the actual level of such compensation.

The Directive precludes national legislation which provides for fair compensation, in accordance with the exception to the reproduction right, in respect of reproductions made using unlawful sources, namely from protected works which are made available to the public without the rightholder’s consent. However the directive does not preclude national legislation which provides for fair compensation, in accordance with the exception to the reproduction right, in respect of reproductions of protected works made by a natural person by or with the aid of a device which belongs to a third party.

Cases C-479/13 and C-502/13 Commission v France and Commission v Luxembourg on reduced rate of VAT to the supply of electronic books

In Cases C-479/13 and C-502/13 Commission v France and Commission v Luxembourg the Court held France and Luxembourg cannot apply a reduced rate of VAT to the supply of electronic books, in contrast with paper books

In Case C 502/13, European Commission v. Luxembourg, the Court declared that, by applying a rate of value added tax of 3% to the supply of digital or electronic books, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 96 to 99, 110 and 114 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax as amended by Council Directive 2010/88/EU of 7 December 2010, read in conjunction with Annexes II and III to that directive and Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC.

In order to be able to read an electronic book, physical support, such as a computer, is required. However such support is not included in the supply of electronic books. In the light of the terms of point 6 of Annex III, it follows that that provision does not include in its scope the supply of electronic books. Since the supply of electronic books is an electronically supplied service within the meaning of the second subparagraph of Article 98(2) of the VAT Directive, and since that provision precludes the possibility of applying a reduced rate of VAT to such services, it is not possible to interpret point 6 of Annex III to the VAT Directive to include within its scope the supply of electronic books without failing to have regard to the EU legislature’s intention that a reduced rate of VAT should not apply to those services.

Case C‑628/13 Lafonta on inside information and concept of ‘information of a precise nature’

The Court in Case C 628/13 Lafonta on inside information and concept of ‘information of a precise nature’ with potential effect in a particular direction on the prices of financial instruments

In Case C 628/13 Lafonta the request for a preliminary ruling concerned the interpretation of point (1) of Article 1 of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (OJ 2003 L 96, p. 16) and Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards the definition and public disclosure of inside information and the definition of market manipulation (OJ 2003 L 339, p. 70).

It has been made in proceedings between Mr Lafonta and the French Financial Markets Authority: ‘the AMF’ concerning the decision of 13 December 2010 by which the Penalties Commission of the AMF ordered Mr Lafonta to pay a financial penalty for failing to make public, inter alia, information relating to a financial operation which enabled Wendel SA to acquire a significant shareholding in the Saint-Gobain group. The Court ruled that on a proper construction of interpreted provision as regards the definition and public disclosure of inside information and the definition of market manipulation, in order for information to be regarded as being of a precise nature for the purposes of those provisions, it need not be possible to infer from that information, with a sufficient degree of probability, that, once it is made public, its potential effect on the prices of the financial instruments concerned will be in a particular direction.

 

Competition

Case C‑667/13 Banco Privado Português in Massa Insolvente do Banco Privado Português on state guarantee underwriting a loan constitutes state aid

In Case C 667/13 Banco Privado Português in Massa Insolvente do Banco Privado Português the Court answered the question whether state guarantee underwriting a loan constitutes state aid.

The request for a preliminary ruling concerned, first, the validity of Commission Decision 2011/346/EU of 20 July 2010 on the State aid C 33/09 (ex NN 57/09, CP 191/09) implemented by Portugal in the form of a State guarantee to BPP (OJ 2011 L 159, p. 95) and, secondly, the interpretation of Article 14(1) and (2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU](OJ 1999 L 83, p. 1).

It has been made in proceedings between the Portuguese State, on the one hand, and Banco Privado Português SA (‘BPP’), in liquidation, and the general body of creditors of BPP, on the other, concerning the inclusion of that State’s claim in the liabilities of BPP, in the context of its winding-up, for an amount of EUR 24 462 921.24, plus any interest due, representing the amount to be recovered of the unlawful aid granted to BPP by means of a State guarantee to that bank underwriting a loan of EUR 450 million (‘the guarantee’). The Court ruled that examination of the questions referred for a preliminary ruling by the Tribunal do Comércio de Lisboa (Portugal) has disclosed nothing capable of affecting the validity of Commission Decision 2011/346/EU of 20 July 2010 on the State aid C 33/09 (ex NN 57/09, CP 191/09) implemented by Portugal in the form of a State guarantee to BPP.

Case C‑672/13 OTP Bank on whether housing aid granted prior to the accession of Hungary to the European Union to certain categories of household constitutes state aid

The request for a preliminary ruling concerned the interpretation of Articles 107 TFEU and 108 TFEU and has been made in proceedings between OTP Bank, a Hungarian credit institution, and the Hungarian State and the Hungarian State Treasury concerning a claim for reimbursement under a guarantee granted by the Hungarian State to OTP Bank.

The Court ruled that the guarantee provided by the Hungarian State under Paragraph 25(1) and (2) of Government Decree No 12/2001 of 31 January 2001 concerning aid intended to facilitate access to housing, granted exclusively to credit institutions prima facie constitutes ‘State aid’ within the meaning of Article 107(1) TFEU. However, it is for the referring court to ascertain more specifically the selective nature of such a guarantee by determining, in particular, whether, following the amendment of the Decree of 2001 which is supposed to have taken place in 2008, that guarantee may be granted to economic operators other than credit institutions and, in the affirmative, whether that fact may call into question the selective nature of that guarantee.

If the referring court classifies the State guarantee at issue in the main proceedings as ‘State aid’ within the meaning of Article 107(1) TFEU, such a guarantee must be regarded as new aid and is, on that ground, subject to the obligation of prior notification to the European Commission in accordance with Article 108(3) TFEU. It is for the referring court to verify whether the Member State concerned has complied with that obligation and, if that is not the case, to declare that guarantee unlawful. The beneficiaries of a State guarantee, such as that at issue in the main proceedings, granted without regard for Article 108(3) TFEU and, therefore, unlawful, do not have any remedies available in accordance with EU law.

Case T-175/12 Deutsche Börse AG v Commission on merger between Deutsche Börse and NYSE Euronext

In Case T-175/12 Deutsche Börse AG v Commission the General Court confirms the Commission’s decision prohibiting the proposed merger between Deutsche Börse and NYSE Euronext

The General Court considers, first, that none of the arguments put forward by Deutsche Börse can call into question the Commission’s conclusions on the definition of the relevant market. According to the General Court, the Commission did not make errors of law or assessment in considering that exchange-traded derivatives (ETDs) and over-the-counter derivatives (OTC derivatives) belonged to separate markets. Secondly, the General Court rejects Deutsche Börse’s arguments relating to the efficiency gains which the merger could have brought and to the commitments made by the companies for the purpose of counteracting the significant restrictions of effective competition.

Environment

Case C‑510/13 E.ON Földgáz Trade on action against a decision of a regulatory authority

The Court in Case C 510/13 E.ON Földgáz Trade held that provisions of new directive don’t apply in an action against a decision of a regulatory authority, adopted before the expiry of period allowed for transposition of the directive.

The request for a preliminary ruling concerned the interpretation of Article 25 of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57), and of Articles 41 and 54 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94). It has been made in proceedings between E.ON Földgáz and the Hungarian regulatory authority, concerning the amendment by that authority of the rules of the gas network code relating to long-term reserve capacity and managing congestion.

The Court held that Directive 2009/73/EC, the period allowed for whose transposition expired on 3 March 2011 and, in particular, the new provisions introduced in Article 41(17) thereof, must be interpreted as not applying to an action against a decision of a regulatory authority, such as that at issue in the main proceedings, adopted before the expiry of that period allowed for transposition and which was still pending on that date.

Article 5 of Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks, read in conjunction with the Annex to that regulation, and Article 47 of the Charter, must be interpreted as precluding national legislation concerning the exercise of rights of action before the court or tribunal having jurisdiction to review the lawfulness of acts of a regulatory authority, which, in circumstances such as those at issue in the main proceedings, does not make it possible to confer on an operator, such as E.ON Földgáz Trade Zrt, locus standi for the purpose of bringing an action against a decision of that authority relating to the gas network code.

Case C-534/13 Ministero dell'Ambiente e della Tutela del Territorio e del Mare and Others v Fipa Group Srl and Others: Italian legislation under which owners of land who are not polluters are not required to adopt preventive and remedial measures is compatible with EU law

In Case C-534/13 Ministero dell’Ambiente e della Tutela del Territorio e del Mare and Others v Fipa Group Srl and Others the Court held that Italian legislation under which owners of land who are not polluters are not required to adopt preventive and remedial measures is compatible with EU law. Member States are free to provide that those owners are only to incur financial liability, where such measures are taken by the authorities.

This request for a preliminary ruling concerned the interpretation of the principles of EU environmental law, namely, the ‘polluter pays’ principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority, as laid down in Article 191(2) TFEU, and in Articles 1 and 8(3) of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56), reflecting recitals 13 and 24 of the preamble thereto.

It has been made in three sets of proceedings, respectively between: (i) the Environment Ministry, the Health Ministry and Ispra, on the one hand, and Fipa Group Srl, on the other; (ii) the Environment Ministry, the Health Ministry and Ispra, on the one hand, and Tws Automation Srl, on the other; and (iii) the Environment Ministry and the Health Ministry, on the one hand, and Ivan Srl, on the other. All three sets of proceedings concern specific emergency safety measures relating to properties contaminated by various chemical substances.

The Court held that Directive 2004/35/EC must be interpreted as not precluding national legislation, which, in cases where it is impossible to identify the polluter of a plot of land or to have that person adopt remedial measures, does not permit the competent authority to require the owner of the land (who is not responsible for the pollution) to adopt preventive and remedial measures, that person being required merely to reimburse the costs relating to the measures undertaken by the competent authority within the limit of the market value of the site, determined after those measures have been carried out.

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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