Regulatory case law, April 2015: use of biometric data and disputes between telecoms providers

In April the European Court of Justice among other ruled on the use of biometric data collected for purposes other than the issue of passports and travel documents, and disputes between undertakings providing electronic communications networks or services.

 

Competition

Case C-227/14 P LG Display Co. Ltd and LG Display Taiwan Co. Ltd v Commission on participation in the cartel on the market for LCD panels

The Court in Case C-227/14 P LG Display Co. Ltd and LG Display Taiwan Co. Ltd v Commission confirmed the fine of 210 million EUR imposed on LG Display for its participation in the cartel on the market for LCD panels

The Commission imposed fines totalling 648.925 million EUR on six Korean and Taiwanese producers of LCD panels because of their participation in a cartel from 2001 until 2006. The General Court essentially upheld the Commission decision but reduced by 5 million EUR the fine imposed on LG Display. LG Display then brought an appeal before the Court of Justice seeking a greater reduction in the fine. The Court dismissed LG Display’s appeal and confirmed the fine as reduced by the General Court at the sum of 210 million EUR.

The Court stated that sales of LCD panels which LG Display made to its parent companies (LG Electronics and Philips) as part of their joint venture agreement at a preferential price must be regarded as sales made to independent third parties (external sales) and not as sales made to entities belonging to the same undertaking (internal sales). LG Display does not form a single undertaking with its parent companies and therefore does not constitute a vertically-integrated undertaking. Sales of LCD panels made by LG Display to its parent companies were properly included in order to calculate the amount of the fine. That is because the amount of the fine is solely determined according to the sales made on the market affected by the infringement, irrespective of whether the prices of those sales were or were not influenced by the cartel.

As regards the partial immunity from a fine claimed by LG Display for the year 2005, the Court held that such an immunity could not be granted, since the information provided by LG Display (that the cartel had continued in 2005) related to facts which were not previously unknown to the Commission (since another undertaking, Samsung, had earlier provided information on that subject).

Case C-143/14 TMK Europe on anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel

In the Case C-143/14 TMK Europe the Court found that the question raised has disclosed nothing to affect the validity of Council Regulation (EC) No 2320/97 of 17 November 1997, imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia.

The reference for a preliminary ruling concerned the validity of Council Regulation (EC) No 2320/97 of 17 November 1997 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia (OJ 1997 L 322, p. 1). It has been made in proceedings between TMK Europe and the Hauptzollamt (the principal customs office in Frankfurt am Oder) concerning anti-dumping duties claimed from TMK Europe under Regulation No 2320/97 on the basis of imports made between 2001 and 2003.

The Court considered that neither TMK Europe nor Sinara, the company it succeeded, is identified in Regulation No 2320/97 as an exporting undertaking. Nor do they appear as importing undertakings having been affected by the preparatory inquiries for that regulation. Even though Sinara has been linked to the group of Russian exporting undertakings that participated in the anti-dumping procedure, it is not apparent from the documents before the Court either that the cost of exportation used to determine the anti-dumping duties has been calculated based on the price of resale within the Community by that importer, or that the anti-dumping duty itself has been calculated on the basis of those resale prices. Sinara was not sufficiently linked to the Russian exporting undertakings or fell within a particular situation differentiating it from all other economic operators, for it to be considered that that undertaking was concerned directly and individually, in the sense of Article 230 EC during the period allowed by that article for seeking annulment of Regulation No 2320/97 of 17 November 1997.

In those circumstances, and even if all the rights and obligations of Sinara had been transferred to TMK Europe, TMK Europe could not undoubtedly have sought the annulment of Regulation No 2320/97, in so far as that regulation fixed an anti-dumping duty on the importation of seamless pipes originating in Russia. Such an assessment of the situation of the importing undertaking in the light of Regulation No 2320/97 cannot be called into question either because the exporting undertakings have not cooperated with the anti-dumping procedure or, because TMK Europe could have challenged the basis for Regulation No 1322/2004. It follows from the foregoing that TMK Europe could raise the plea of illegality in relation to Regulation No 2320/97 before the national court, which was not, therefore, bound by the definitive character of the anti-dumping duty imposed by that regulation.

TMK Europe has not provided evidence, merely arguing that the fact that the Commission opened the investigation giving rise to the competition decision must necessarily have had an effect on the anti-dumping investigation, and further arguing that the mere fact that the outcome of the first of these investigations finally led the Council to suspend Regulation No 2320/97 is sufficient for it to be accepted that the first investigation influenced the anti-dumping investigation. It follows that TMK Europe has not provided proof that factors other than those relating to imports could have been so significant as to call into question the existence of a causal link between the harm suffered by Community industry and the dumped imports.

Case C-690/13 Trapeza Eurobank Ergasias on the meaning of a State aid referring to privileges granted to a bank

The Case C-690/13 Trapeza Eurobank Ergasias on the meaning of a State aid referring to privileges granted to a bank. The request for a preliminary ruling concerned the interpretation of Article 87(1) EC and the last sentence of Article 88(3) EC. It has been made in proceedings between Trapeza Eurobank Ergasias, on the one hand, and Agrotiki Trapeza tis Ellados AE (ATE) and Mr Sidiropoulos, on the other hand, concerning the validity of the registration of a mortgage by ATE on immovable property belonging to Mr Sidiropoulos.

The Court ruled that article 87(1) EC must be interpreted as meaning that its scope of application may cover privileges in accordance with which a bank has the right unilaterally to register a mortgage over immovable property belonging to farmers or other persons engaged in similar agricultural activities, the right to seek enforcement with an ordinary private document and the right to be exempted from the payment of fees and duties connected with that registration. It is, however, for the referring court to determine whether that is the case in the main proceedings.

The answer to question 1(a) is capable of being affected by the fact that privileges conferred by national legislation upon an independent bank acting for the public benefit, at the time of its establishment, in consideration for entering into agricultural credit operations and specific tasks entrusted to that bank, are still in force, and that even after the functions of that bank were extended to cover all banking activities and that bank has become a public limited company.

It is for the referring court to determine whether, in the light of all the relevant legal and factual circumstances, the four cumulative conditions justifying, in accordance with the Court’s case-law, the finding that those privileges constitute compensation for services provided by that bank in order to discharge public service obligations, and that they thus escape being classified as State aid, are satisfied. Article 87(1) EC must be interpreted as meaning that where privileges, fall within the scope of application of that provision, the Member State which established them is required to follow the preliminary examination procedure provided for in Article 88(3) EC provided that those privileges became new aid after the entry into force of the Treaty in the Member State concerned and that the limitation period laid down by Article 15(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] has not expired, which is a matter for the referring court to verify.

Articles 87(1) EC and 88(3) EC must be interpreted as meaning that where the referring court considers that the privileges at issue constitute, in view of the answer to question 2, new State aid, it is required to exclude the application of national provisions establishing such privileges on account of their incompatibility with those provisions of the Treaty.

Information society

-Case C-3/14 Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog on resolution of disputes between undertakings providing electronic communications networks or services

The Court in the case C-3/14 Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog on resolution of disputes between undertakings providing electronic communications networks or services

The request for a preliminary ruling concerned the interpretation of Articles 6, 7(3) and 20 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) (‘the Framework Directive’) and of 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) (OJ 2002 L 108, p. 51).

It has been made in proceedings between Prezes Urzędu Komunikacji Elektronicznej (President of the Office of Electronic Communications) and Telefonia Dialog, on the one hand, and T-Mobile Polska SA, on the other, concerning a decision made by the President of the UKE in a dispute between those undertakings.

The Court ruled that articles 7(3) and 20 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) must be interpreted as meaning that a national regulatory authority is required to implement the procedure laid down in the former of those provisions if, in resolving a dispute between undertakings providing electronic communications networks or services in a Member State, it intends to impose obligations designed to ensure access to non-geographic numbers in accordance with 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) and those obligations may affect trade between Member States. Article 7(3) of Directive 2002/21 must be interpreted as meaning that a measure adopted by a national regulatory authority in order to ensure that end-users have access to non-geographic numbers in accordance with Article 28 of Directive 2002/22 affects trade between Member States, within the meaning of that provision, if it may have, other than in an insignificant manner, an influence, direct or indirect, actual or potential, on that trade, this being a matter for the referring court to determine.

Case C-388/13 UPC Magyarország on erroneous information provided by a telecommunications undertaking to one of its subscribers

The case C-388/13 UPC Magyarország on erroneous information provided by a telecommunications undertaking to one of its subscribers which has resulted in additional costs for the latter

The request for a preliminary ruling has been made in proceedings between the Nemzeti Fogyasztóvédelmi Hatóság (the Hungarian consumer protection authority) and UPC Magyarország Kft. (‘UPC’) concerning erroneous information which had been provided by UPC to one of its subscribers and which gave rise to additional costs for that subscriber.

The Court ruled that Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as meaning that the communication, by a professional to a consumer, of erroneous information must be classified as a ‘misleading commercial practice’, within the meaning of that directive, even though that information concerned only one single consumer.

Directive 2005/29 must be interpreted as meaning that, if a commercial practice meets all of the criteria specified in Article 6(1) of that directive for classification as a misleading practice in relation to the consumer, it is not necessary further to determine whether such a practice is also contrary to the requirements of professional diligence, as referred to in Article 5(2)(a) of that directive, in order for it legitimately to be regarded as unfair and, consequently, prohibited in accordance with Article 5(1) of that directive.

Environment

Case C-570/13 Gruber on the assessment of the effects of certain public and private projects on the environment

The case C-570/13 Gruber on the assessment of the effects of certain public and private projects on the environment

The request for a preliminary ruling concerned the interpretation of Article 11 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012, L 26, p. 1). It has been made in proceedings between Ms Gruber, on the one hand, and UVK, EMA and the Federal Minister for Economic Affairs, the Family and Youth, concerning a decision authorising the construction and operation of a retail park on land bordering property belonging to Ms Gruber.

The Court ruled that article 11 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment must be interpreted as precluding national legislation, pursuant to which an administrative decision declaring that a particular project does not require an environmental impact assessment, which is binding on neighbours who were precluded from bringing an action against that administrative decision, where those neighbours, who are part of the ‘public concerned’ within the meaning of Article 1(2) of that directive, satisfy the criteria laid down by national law concerning ‘sufficient interest’ or ‘impairment of a right’. It is for the referring court to verify whether that condition is fulfilled in the case before it. Where it is so fulfilled, that court must hold that the administrative decision not to carry out such an assessment is not binding on those neighbours.

Personal data

Joined cases C-446/12 to C-449/12 Willems and Others on use of biometric data collected for purposes other than the issue of passports and travel documents

Joined cases C-446/12 to C-449/12 Willems and Others on use of biometric data collected for purposes other than the issue of passports and travel documents and on establishment or use of databases containing biometric data.

The requests for a preliminary ruling concerned the interpretation of Articles 1(3) and 4(3) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States (OJ 2004 L 385, p. 1), as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 6 May 2009 (OJ 2009 L 142, p. 1, and corrigendum OJ 2009 L 188, p. 127) (‘Regulation No 2252/2004’).

They have been made in proceedings between Mr Willems, Mr Kooistra, Ms Roest and Ms van Luijk and the Burgemeester van Nuth, the Burgemeester van Skarsterlân, the Burgemeester van Amsterdam and the Burgemeester van Den Haag, respectively (‘the Burgemeesters’), concerning the refusal by the latter to issue the applicants in the main proceedings with a passport (C 446/12, C 448/12 and C 449/12) and an identity card (C 447/12) unless their biometric data was recorded at the same time.

The Court ruled that Article 1(3) of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 6 May 2009, must be interpreted as meaning that that regulation is not applicable to identity cards issued by a Member States to its nationals, such as Netherlands identity cards, regardless of the period of validity and the possibility of using them for the purposes of travel outside that State.

Article 4(3) of Regulation No 2252/2004, as amended by Regulation No 444/2009, must be interpreted as meaning that it does not require the Member States to guarantee, in their legislation, that biometric data collected and stored in accordance with that regulation will not be collected, processed and used for purposes other than the issue of the passport or travel document, since that is not a matter which falls within the scope of that regulation.

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