EU regulatory case law: December 2013
In our new monthly series, Apahia’s guest blogger Ines Grah takes a look at the recent judgements by the European Court of Justice and the General Court, highlighting the most relevant developments in energy, data protection, competition and environment.
Following is the summary of the latest European regulatory case law from December 2013 according to the subject matter covered. Click on ‘read more’ to find details about each case.
C-262/12 Vent De Colère and others – wind-generated energy. Read more
The referring court in case C- 262/12 Vent De Colère and Others asked The Court of Justice of the European Union whether a mechanism for offsetting in full the additional costs imposed on undertakings due to an obligation to purchase wind-generated electricity at a price above the market price, that is financed by final consumers, must be regarded as an intervention by the State or through State resources within the meaning of Article 107(1) TFEU.
The request has been made in proceedings brought by Association Vent De Colère! Fédération nationale and by 11 natural persons against two orders of the Minister for Ecology, Energy, Sustainable Development and Regional Planning and of the Minister for the Economy, Industry and Employment. The contested orders were laying down the conditions for the purchase of electricity generated by wind-power installations. Those orders were subsequently the subject of an action for annulment before the French Council of State, where applicants stated that they introduce State aid within the meaning of Article 107(1) TFEU. According to the referring court, the purchase of the electricity generated by wind-power installations at a price higher than its market value constitutes an advantage liable to affect trade between Member States and have an impact on competition. Previously the additional costs arising from the obligation to purchase imposed on Électricité de France and the non-nationalised distributors were offset in full through a public service fund for the generation of electricity financed by charges payable by the producers, suppliers and distributors referred to in the law. Those additional costs were then offset through the charges payable by the final consumers of electricity located in national territory, the amount of which was calculated in proportion to the quantity of electricity consumed and determined by the Minister for Energy by order on a proposal from the Commission de régulation de l’énergie.
The Court held that article 107(1) TFEU must be interpreted as meaning that a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that is financed by all final consumers of electricity in the national territory, constitutes an intervention through State resources.
C-425/12 Portgás – procedures for awarding public contracts in the water, energy, transport and telecommunications. Read more
The request to the Court of Justice of European Union for a preliminary ruling concerns the interpretation of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. It was made in proceedings between Portgás and the Ministry of Agriculture, the Sea, the Environment and Town and Country Planning concerning a decision ordering the recovery of financial aid which was granted to that company under the European Regional Development Fund, on the ground that, when it procured gas meters from another company, Portgás had not complied with the European Union law rules on public procurement.
Portgás is a company limited by shares under Portuguese law which is active in the natural gas production and distribution sector. It concluded a contract for the supply of gas meters with Soporgás – Sociedade Portuguesa de Gás Lda and submitted an application for Community co-financing under the European Regional Development Fund, which was approved. The contract awarding financial aid to cover the eligible expenditure of Project, which included the procurement of those gas meters. Following an audit carried out by Inspectorate General of Finances, the manager of the Operational Programme North ordered the recovery of the financial assistance which had been granted to Portgás in connection with that project, on the ground that, with regard to the procurement of those gas meters, Portgás had failed to comply with the European Union law rules on public procurement, with the result that all expenditure that had been the subject of public co-financing was ineligible. Portgás brought a special administrative action before the Porto Administrative and Customs Court by which it sought annulment of the decision ordering that recovery. Before that court, Portgás claimed that the Portuguese State could not require it, as a private undertaking, to comply with the provisions of Directive 93/38. According to Portgás, at the time when the contract was entered into with Soporgás – Sociedade Portuguesa de Gás Lda, the provisions of that directive had not yet been transposed into the Portuguese legal system and, therefore, they could not have direct effect in relation to Portgás. The Ministério contended before the referring court that Directive 93/38 is addressed not only to the Member States but also to all contracting entities, as defined in that directive. According to the Ministério, in its capacity as the holder of the only public service concession in the area covered by the concession, Portgás was subject to the obligations arising from that directive.
The Court ruled that articles 4(1), 14(1)(c)(i) and 15 of Council Directive 93/38/EEC must be interpreted as meaning that they cannot be relied on against a private undertaking solely on the ground that, in its capacity as the exclusive holder of a public-interest service concession, that undertaking comes within the group of persons covered by Directive 93/38, in circumstances where that directive has not yet been transposed into the domestic system of the Member State concerned. Such an undertaking, which has been given responsibility, pursuant to a measure adopted by the State, for providing, under the control of the State, a public-interest service and which has, for that purpose, special powers going beyond those which result from the normal rules applicable in relations between individuals, is obliged to comply with the provisions of Directive 93/38, as amended by Directive 98/4, and the authorities of a Member State may therefore rely on those provisions against it.
Information Society and Data protection
C-202/12 Innoweb – database right and ‘meta search engines’. Read more
In case C-202/12 Innoweb BV v Wegener ICT Media BV and Wegener Mediaventions BV, the Court of Justice of the European Union has given a judgment concerning database right and ‘meta search engines’. The protection under Directive 96/9/EC is intended to ensure that the person who has taken the initiative and assumed the risk of making a substantial investment in terms of human, technical and/or financial resources in the setting up and operation of a database, receives a return on his investment by protecting him against the unauthorised appropriation of the results of that investment. Questions from the Gerechtshof te ‘s Gravenhage (Netherlands) were essentially intended to ascertain whether the maker of a database may prevent that database from being included, for no consideration, in the service of the ‘dedicated meta search engine’.
The dispute concerns Innoweb’s operation, through its website, of a ‘dedicated meta search engine’ that enables searches to be carried out on third party websites and, in particular, on Wegener’s website, where a collection of car sales advertisements (‘car ads’) is displayed. A ‘meta search engine’ uses search engines from other web sites, transferring queries from its users to those other search engines – a feature which differentiates meta search engines from general search engines such as Google. A ‘meta search engine’ described as ‘dedicated’ is designed to enable searches to be made in one or more specific subject areas. Innoweb’s GasPedaal is such a ‘dedicated meta search engine’, designed to search for car ads: through a single query on GasPedaal, the user can simultaneously carry out searches of several collections of car ads listed on third party sites, including the AutoTrack, which is web site of Wegener.
The Court interpreted Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases as meaning that an operator who makes available on the Internet a ‘dedicated meta search engine’ re-utilises the whole or a substantial part of the contents of a database, where that ‘dedicated meta engine’:
- provides the end user with a search form which essentially offers the same range of functionality as the search form on the database site;
- ‘translates’ queries from end users into the search engine for the database site ‘in real time’, so that all the information on that database is searched through; and
- presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database site concerned for presenting results.
The Court explained that the operator of a ‘dedicated meta search engine’ re-utilises part of the contents of a database. That re-utilisation involves a substantial part of the contents of the database concerned, if not the entire contents, since a ‘dedicated meta search engine’ makes it possible to search the entire contents of that database, like a query entered directly in that database’s search engine. Accordingly, the number of results actually found and displayed for every query keyed into the dedicated search engine is irrelevant. The fact that, on the basis of the search criteria specified by the end user, only part of the database is actually consulted and displayed in no way detracts from the fact that the entire database is made available to that end user.
C-486/12 X – protection of individuals with regard to the processing of personal data. Read more
Court of Justice of the European Union in case C 486/12 X on conditions for exercising a right of access to personal data and levying of fees. Request for a preliminary ruling concerned the interpretation of Article 12 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. The request has been made in proceedings brought by X concerning payment of a fee for delivery of a certified transcript containing personal data.
In proceedings contesting a decision imposing a fine on X for a traffic offence, X sought to show that she had never received the notices requesting payment of that fine, as they had been sent to the wrong address. To that end, X asked her municipality of residence to disclose her personal data for the years 2008 and 2009, in particular her various addresses. In response, the municipality provided a certified transcript of the personal data and in exchange, demanded payment of a fee of EUR 12.80. X brought an action contesting that request for payment, but was unsuccessful. In her appeal before the referring court, X claims not to have requested a certified transcript, but simply to have sought to obtain her personal data and that no fees should have been levied. For its part, the municipality contends that the personal data in question cannot be provided in any way other than by certified transcript. As provision of a transcript to an individual is connected with satisfying the private interests of that individual, it is a service in respect of which, payment of a fee may be required.
Court of Justice of the European Union ruled that article 12(a) of Directive 95/46/EC must be interpreted as not precluding the levying of fees in respect of the communication of personal data by a public authority. In order to ensure that fees levied when the right to access personal data is exercised, are not excessive, the level of those fees must not exceed the cost of communicating such data.
For any Member State which requires payment of a fee from individuals exercising the right to access the data to fix that fee at a level which constitutes a fair balance between, on the one hand, the interest of the data subject in protecting his privacy, in particular through his right to have the data communicated to him in an intelligible form, so that he is able, if necessary, to exercise his rights to rectification, erasure and blocking of the data and his rights to object and to bring legal proceedings and, on the other, the burden which the obligation to communicate such data represents for the controller. In view of the importance, the fees which may be levied may not be fixed at a level likely to constitute an obstacle to the exercise of the right of access guaranteed by that provision. It should be held that, where a national public authority levies a fee on an individual exercising the right to access personal data relating to him, the level of that fee should not exceed the cost of communicating such data. That upper limit does not prevent the Member States from fixing such fees at a lower level in order to ensure that all individuals retain an effective right to access such data.
T-79/12 Cisco – Microsoft takeover of Skype is compatible with the single market. Read more
General Court of the European Union in case T-79/12 Cisco Systems and Messagenet v Commission held that Microsoft’s acquisition of Skype is compatible with the internal market. The merger does not restrict competition either on the consumer Internet-based communications market or on the business Internet – based communications market.
Skype provides internet – based communications services and software enabling instant messaging and voice and video communications. Microsoft is a United States company whose activities relate essentially to the design, development and sale of computer software and the supply of related services which include internet – based communications services and software offered to both the general public and business users. Microsoft notified to the Commission the concentration by which it intended to acquire control of Skype. Cisco and Messagenet, companies which supply internet – based communications services and software to undertakings and the general public respectively, submitted observations to the Commission by which they sought to demonstrate the anti-competitive effects that the planned merger would have.
The Commission declared that concentration is compatible with the internal market. Cisco and Messagenet then brought an action before the General Court for annulment of the Commission’s decision. The Court dismissed that action.
C-239/11 P – Siemens – dismissal of complaint – cartel. Read more
In joined cases C 239/11 P, C 489/11 P and C 498/11 P Siemens v Commission, the Court of Justice of the European Union dismissed the appeals brought by Siemens AG, Mitsubishi and Toshiba against the judgments of the General Court. The disputes concern a cartel relating to the sale of gas insulated switchgear (‘GIS’), which is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations.
The Commission concluded that the undertakings involved had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’) and imposed fines on them. General Court, first, in the judgment in Siemens v Commission, dismissed the action brought by Siemens seeking the annulment, in so far as it concerned it, of Commission Decision relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear), and, second, in the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, annulled the fines imposed respectively on Mitsubishi and Toshiba by the contested decision and dismissed their actions as to the remainder. Appellants sought the annulment of the judgments of the General Court of the European Union in Case T 110/07 Siemens v Commission, Case T 133/07 Mitsubishi Electric v Commission and in Case T 113/07 Toshiba v Commission (‘the judgments under appeal’).
The Court of Justice of the European Union dismissed their appeals.
T-240/10 Hungary v European Commission – genetically modified potato. Read more
In case T-240/10 Hungary v European Commission the General Court annulled the Commission’s decisions concerning authorisation to place on the market the genetically modified potato Amflora for the Commission infringed the procedural rules of the systems for authorising GMOs in the European Union.
The General Court has found that the Commission, before adopting the contested decisions, did not submit the amended drafts of those decisions to the competent committee. Therefore the Commission departed from the rules of the authorisation procedures. As a consequence, those decisions cannot be considered to be identical to the previous drafts and proposals. They must be treated as a new substantive assessment and not as a simple, purely formal confirmation of the assessments of the risks contained in the previous opinions. In that respect if the Commission had complied with those rules, the result of the procedure or the content of the contested decisions could have been substantially different.
C-292/12 Ragn – waste management. Read more
The Court of Justice of the European Union in case C 292/12 Ragn-Sells AS v. Sillamäe Linnavalitsus on waste management. The request for a preliminary ruling has been made in proceedings between Ragn Sells AS (‘Ragn-Sells’) and Sillamäe Linnavalitsus (Municipality of Sillamäe) concerning certain contract documents drawn up by that municipality in the course of a procedure for awarding a service concession for the collection and transport of waste produced on its territory.
The referring court asks about the compatibility of the obligation imposed by a local authority of a Member State on a future concessionaire of a concession for the collection and transport of waste to deliver certain types of waste collected on the territory of that municipality, namely either mixed municipal waste or industrial and building waste, to an undertaking established in the same Member State in order for it to be treated, with the relevant provisions of the Treaty guaranteeing the free movement of goods and also freedom of establishment and freedom to provide services, those provisions being Articles 35 TFEU (Treaty on the Functioning of the European Union), and 36 TFEU, on the one hand and Articles 49 TFEU and 56 TFEU, on the other. Besides that the referring court asks about the potential implications of the principle of proximity applicable to the treatment of certain types of waste, laid down in Article 16(3) of Directive 2008/98, for the imposition of such an obligation.
The Court ruled that the provisions of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, read in conjunction with Article 16 of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, must be interpreted as:
Permitting a local authority to require the undertaking responsible for the collection of waste on its territory to transport mixed municipal waste collected from private households and, as applicable, from other producers, to the nearest appropriate treatment facility established in the same Member State as that authority;
Not permitting a local authority to require the undertaking responsible for the collection of waste on its territory to transport industrial and building waste produced on its territory to the nearest appropriate treatment facility established in the same Member State as that authority, where that waste is intended for recovery, it the producers of that waste are themselves required to deliver the waste either to that undertaking or directly to that facility.
Articles 49 TFEU and 56 TFEU do not apply to a situation such as that in the main proceedings, which is confined in all respects within a single Member State.
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