Regulatory case law, September 2015: atmospheric pollution and reimbursement of government licences

In September the European Court of Justice ruled on refusal to grant reimbursement of the charges paid for government licences under subscription contracts for mobile telephony service, and the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations.

 

Competition

Case C-398/13 P Inuit Tapiriit Kanatami and Others v Commission: validity of the regulation on trade in seal products

In Case C-398/13 P Inuit Tapiriit Kanatami and Others v Commission the Court of Justice confirms the validity of the regulation on trade in seal products.

 

In support of their appeal, the appellants put forward two grounds, alleging errors of law committed by the General Court in its assessment of the basic regulation’s legality. The Court held that EU legislature could legitimately adopt that regulation in response to the divergences existing between national rules on the marketing of seal products.

Cases C-597/13 P Total SA v Commission and C-634/13 P Total Marketing Services SA v Commission: an undertaking publicly distancing itself from a cartel

 

In Cases C-597/13 P Total SA v Commission and C-634/13 P Total Marketing Services SA v Commission the Court dismisses Total France’s appeal but upholds that of Total in part by holding that the General Court should have granted Total the same reduction in the fine as granted to its subsidiary.

 

The Court holds that the General Court erred in law in considering that an undertaking’s publicly distancing itself from a cartel constitutes the only means available to an undertaking of proving that it has ceased participating in a cartel, even in the case where that company has not participated in some anti-competitive meetings.

 

Nevertheless, that error of law cannot lead to the setting aside of the judgment in so far as Total France’s participation in the infringement in those periods is concerned. It held that the General Court erred in law in not bringing Total’s fine into line with the reduced fine of its subsidiary, Total France. Therefore it reduces the fine imposed on Total jointly and severally with Total France from €128 million to €125 million.

Case C-89/14 A2A: EU law does not preclude Italian legislation

In the case C-89/14 A2A the Court decided that EU law does not preclude Italian legislation which, by reference to an EU regulation not in force at the time, provides for the application of compound interest to the recovery of State aid. Thus the company A2A will have to repay not only €170 million in capital, but also €120 million in compound interest.

 

The request has been made in proceedings between A2A and the Agenzia delle Entrate (Revenue Authority) concerning the recovery, with compound interest, of State aid declared incompatible with the common market by Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding.

 

The Court held that Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, and Articles 11 and 13 of Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Regulation No 659/1999, do not preclude national legislation, such as Article 24(4) of Decree-Law No 185/2008 of 29 November 2008, on urgent measures to support families, work, employment and business, and to restructure the national strategic framework to combat the crisis, converted into law, with amendments, by Law No 2 of 28 January 2009, which, by means of a reference to Regulation No 794/2004, provides for the application of compound interest to the recovery of State aid, even though the decision declaring that aid incompatible with the common market and ordering its recovery was adopted and notified to the Member State concerned before that regulation entered into force.

Cases T-82/13 Panasonic Corp. and MT Picture Display Co. Ltd v Commission, T-84/13 Samsung SDI Co. Ltd and Others v Commission, T-91/13 LG Electronics, Inc. v Commission, T-92/13 Koninklijke Philips Electronics NV v Commission and T-104/13 Toshiba Corp. v Commission: reducing fines imposed by the Commission

 

In Cases T-82/13 Panasonic Corp. and MT Picture Display Co. Ltd v Commission, T-84/13 Samsung SDI Co. Ltd and Others v Commission, T-91/13 LG Electronics, Inc. v Commission, T-92/13 Koninklijke Philips Electronics NV v Commission and T-104/13 Toshiba Corp. v Commission, the General Court reduces the fines imposed by the Commission on Panasonic and on Toshiba for their participation in a cartel on the European market for tubes for television sets. However, it confirms the fines imposed on the other members of the cartel.

 

Environment

Case C-81/14 Nannoka Vulcanus Industries: atmospheric pollution, volatile organic compounds and emission reductions

Case C-81/14 Nannoka Vulcanus Industries on atmospheric pollution, volatile organic compounds, emission reductions and use of organic solvents in certain activities and installations

 

The request for a preliminary ruling concerns the interpretation of Annex IIB to Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations. It has been made in proceedings between Nannoka and the Executive Board of the Provincial Committee for the Region of Gelderland, concerning the Board’s order requiring Nannoka to discontinue and rectify, on pain of imposition of periodic penalties, its infringement of the Netherlands legislation transposing Directive 1999/13.

 

The Court ruled that the Council Directive 1999/13 must be interpreted as meaning that the time extension provided for in point (i) of the first paragraph of Annex IIB(2) to that directive may be given to the operator of an ‘installation’ within the meaning of Article 2(1) of that directive, for the implementation of his plan to reduce emissions of volatile organic compounds, where substitutes containing little or no solvent are still under development, even though, for that installation, a constant solid content of product can be assumed and used to define the reference point for emission reductions.

 

Point (i) of the first paragraph of Annex IIB(2) to Directive 1999/13 must be interpreted as meaning that a time extension for the implementation of a scheme to reduce emissions of volatile organic compounds requires an authorisation from the competent authorities, which presupposes a prior application from the operator concerned.

 

When determining whether a time extension must be given to an operator for the implementation of a plan to reduce emissions of volatile organic compounds and fixing the duration of the time extension which may be given, it is for those competent authorities, within the discretion available to them, to verify in particular that substitutes which may be used in the installations concerned and which may reduce the emissions of volatile organic compounds are actually under development, that the work in progress, in the light of the evidence provided, is capable of perfecting such substitutes and that there is no alternative measure which may result in similar or even greater emission reductions, at a lower cost, and, in particular, that other substitutes are not already available.

 

Furthermore, account should be taken of the relationship between, on the one hand, the emission reductions which can be achieved by means of the substitutes under development and the cost of those substitutes and, on the other hand, the additional emissions engendered by the time extension and the cost of any alternative measures. The duration of the time extension must not go beyond what is necessary for substitutes to be developed. That must be assessed in the light of all the relevant factors and, in particular, the magnitude of the additional emissions engendered by the time extension and the cost of any alternative measures as compared with the magnitude of the emission reductions that will be achieved by the substitutes under development and the cost of those substitutes.

Case C-106/14 FCD and FMB: on duties to notify and provide information on substances of very high concern present in articles

The case C-106/14 FCD and FMB on duties to notify and provide information on substances of very high concern present in articles.

 

The reference has been made in proceedings between the Federation of businesses in the trade and distribution sector, ‘the FCD’ and the Federation of DIY and home improvement shops, ‘the FMB’, on the one hand, and the French Minister for Ecology, Sustainable Development, Transport and Housing, on the other, concerning the validity of the ‘Notice to economic operators on the duty to communicate information on substances contained in articles in accordance with Articles 7(2) and 33 of Regulation No 1907/2006 (REACH) — Interpretation of the 0.1% (weight by weight) threshold cited in Articles 7(2) and 33’, (JORF of 8 June 2011, p. 9763, ‘the Notice of 8 June 2011’).

 

The Court held that Article 7(2) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, as amended by Commission Regulation (EU) No 366/2011 of 14 April 2011, must be interpreted as meaning that, for the purposes of application of that provision, it is for the producer to determine whether a substance of very high concern identified in accordance with Article 59(1) of that regulation, as amended, is present in a concentration above 0.1% weight by weight of any article it produces and, for the importer of a product made up of more than one article, to determine for each article whether such a substance is present in a concentration above 0.1% weight by weight of that article. Article 33 of Regulation No 1907/2006, as amended, must be interpreted as meaning that, for the purposes of application of that provision, it is for the supplier of a product one or more constituent articles of which contain(s) a substance of very high concern identified in accordance with Article 59(1) of that regulation in a concentration above 0.1% weight by weight of that article, to inform the recipient and, on request, the consumer, of the presence of that substance by providing them, as a minimum, with the name of the substance in question.

Case C-473/14 Dimos Kropias Attikis: establishment of protection measures in metropolitan parks

The case C-473/14 Dimos Kropias Attikis on the assessment of the effects of certain plans and programmes on the environment

 

The request for a preliminary ruling has been made in proceedings between the municipality of Kropia, Attica and the Minister for the Environment, Energy and Climate Change for the annulment of presidential decree No 187/2011 of 14 June 2011 on the establishment of protection measures in respect of the Mount Hymettus area and the Goudi and Ilissia metropolitan parks.

 

The Court interpreted articles 2(a) and 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment as meaning that the adoption of a measure containing a plan or programme relating to town and country planning and land use falling within the scope of Directive 2001/42 that modifies an existing plan or programme may not be exempted from the obligation to carry out an environmental assessment under that directive on the ground that that measure is intended to give more specific expression to and implement a master plan established by a hierarchically superior measure that has not itself been the subject of such an environmental assessment.

 

Telecommunications

Case C-85/14 KPN: electronic communications networks and services

The request has been made in proceedings between KPN and the Authority for Consumers and Markets concerning an injunction, together with a financial penalty, requiring KPN to lower its tariffs for call transit services to non-geographic numbers.

 

The Court ruled that EU law must be interpreted as allowing a relevant national authority to impose a tariff obligation, such as that at issue in the main proceedings, under Article 28 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, to remove an obstacle to calling non-geographic numbers within the European Union which is not technical in nature, but which results from the tariffs applied, without a market analysis having been carried out showing that the undertaking concerned has significant market power, if such an obligation constitutes a necessary and proportionate step to ensure that end-users are able to access services using non-geographic numbers within the European Union.

 

It is for the national court to determine whether that condition is satisfied and whether the tariff obligation is objective, transparent, proportionate, non-discriminatory, based on the nature of the problem identified and justified in the light of the objectives laid down in Article 8 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 Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, and whether the procedures laid down in Articles 6, 7 and 7a of Directive 2002/21, as amended by Directive 2009/140, have been followed.

 

EU law must be interpreted as meaning that a Member State may provide that a tariff obligation under Article 28 of Directive 2002/22, as amended by Directive 2009/136, such as that at issue in the main proceedings, be imposed by a national authority other than the national regulatory authority usually responsible for applying the European Union’s new regulatory framework for electronic communications networks and services, provided that that authority satisfies the conditions of competence, independence, impartiality and transparency required by Directive 2002/21, as amended by Directive 2009/140, and that the decisions which it takes can form the subject of an effective appeal to a body independent of the interested parties, this being a matter for the referring court to determine.

Case C-416/14 Fratelli De Pra and SAIV: reimbursement of the charges paid for government licences

The request has been made in proceedings between Fratelli De Pra SpA and the Agenzia Belluno Tax Authority, in the first case, and SAIV and the Vicenza Tax Authority, in the second, concerning the refusal by those tax authorities to grant a request for reimbursement of the charges paid for government licences (‘TCG’) paid by De Pra and SAIV under subscription contracts for mobile telephony service.

 

The Court held that Directives: 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, in particular Article 8 thereof; 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); 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), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009; 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); and 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 must be interpreted as not precluding national rules on the application of a charge such as the charge paid for a government licence under which the use of terminal equipment for terrestrial mobile radio communication under a subscription contract is subject to a general authorisation or a licence and to the payment of such a charge, provided that the subscription contract itself is equivalent to a licence or general authorisation and, accordingly, no intervention is required in that regard by the public administrative authorities.

 

Article 20 of Directive 2002/22, as amended by Directive 2009/136, and Article 8 of Directive 1999/5 must be interpreted as not precluding, for the purposes of the application of a charge such as the charge paid for a government licence, a subscription contract for mobile telephony services from being equated with a general authorisation or a radio station licence, which must moreover include details of the type of equipment concerned and the corresponding certification.

 

In a case such as that in the main proceedings, European Union law, as laid down in Directives 1999/5, 2002/19, 2002/20, as amended by Directive 2009/140, 2002/21 and 2002/22, as amended by Directive 2009/136, and in Article 20 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding differential treatment of users of terminal equipment for terrestrial mobile radio communication, depending on whether they conclude a subscription contract for mobile telephony services or purchase those services in the form of pay-as-you-go or top-up cards, under which only the former are subject to rules such as those establishing the charge paid for a government licence.

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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