Regulatory case law, July 2015: obligations of the Water Framework Directive and prudent private investors

This past July the European Court of Justice annulled a Commission telecoms decision because the prudent private investor test was applied incorrectly, and ruled on the deepening of a navigable river in connection with the Water Framework Directive.

 

Competition

C-170/13 Huawei Technologies: an action for a prohibitory injunction against an alleged infringer

In the case C-170/13 Huawei Technologies the Court held that the bringing of an action for a prohibitory injunction against an alleged infringer by the proprietor of a standard-essential patent which holds a dominant position may constitute an abuse of that dominant position in certain circumstances.

 

The Court ruled that article 102 TFEU must be interpreted as meaning that the proprietor of a patent essential to a standard established by a standardisation body, which has given an irrevocable undertaking to that body to grant a licence to third parties on fair, reasonable and non-discriminatory (‘FRAND’) terms, does not abuse its dominant position, within the meaning of that article, by bringing an action for infringement seeking an injunction prohibiting the infringement of its patent or seeking the recall of products for the manufacture of which that patent has been used, as long as: (a.) prior to bringing that action, the proprietor has, first, alerted the alleged infringer of the infringement complained about by designating that patent and specifying the way in which it has been infringed, and, secondly, after the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms, presented to that infringer a specific, written offer for a licence on such terms, specifying, in particular, the royalty and the way in which it is to be calculated, and (b.) where the alleged infringer continues to use the patent in question, the alleged infringer has not diligently responded to that offer, in accordance with recognised commercial practices in the field and in good faith, this being a matter which must be established on the basis of objective factors and which implies, in particular, that there are no delaying tactics.

 

Article 102 TFEU must be interpreted as not prohibiting, in circumstances such as those in the main proceedings, an undertaking in a dominant position and holding a patent essential to a standard established by a standardisation body, which has given an undertaking to the standardisation body to grant licences for that patent on FRAND terms, from bringing an action for infringement against the alleged infringer of its patent and seeking the rendering of accounts in relation to past acts of use of that patent or an award of damages in respect of those acts of use.

C 63/14 Commission v France: recovering aid granted for ferry services

In the case C 63/14 Commission v France the Court declared that France has failed to fulfil its obligations by failing to recover aid amounting to €220 million granted to SNCM for certain ferry services between Marseille and Corsica.

 

By failing to take all the measures necessary to recover from to Société Nationale Corse-Méditerranée (SNCM) the State aid declared illegal and incompatible with the internal market by Article 2(1) of Commission Decision 2013/435/EU of 2 May 2013 on State aid SA.22843 (2012/C) (ex 2012/NN) within the periods prescribed, by failing to cancel all the payments of aid referred to in Article 2(1) of that decision within the periods prescribed, and by failing to inform the commission of the measures taken to comply with that decision within the period prescribed, the French Republic has failed to fulfil its obligations under Article 298, fourth paragraph, TFEU and Articles 3 to 5 of that decision.

C-231/14 P InnoLux Corp. v Commission: participation in the cartel on the market for LCD panels

By its judgment in the case C-231/14 P InnoLux Corp. v Commission the Court confirmed the €288 million fine imposed on InnoLux for its participation in the cartel on the market for LCD panels.

 

When the goods concerned by the cartel have been incorporated into finished products by a vertically-integrated undertaking outside the EEA, the Commission may take into account, for the purposes of calculating the fine to be imposed on that undertaking because of the cartel, the sales of its finished products in the EEA to independent third-party undertakings

C 39/14 BVVG: objections to the sale of agricultural land

The case C 39/14 BVVG on national provision allowing the competent authorities to object to the sale of agricultural land where the price offered is considered ‘grossly disproportionate’ to the market value.

 

The Court ruled that article 107(1) TFEU must be interpreted as meaning that a rule of national law, such as that at issue in the main proceedings, which, for the purposes of safeguarding the interests of agricultural holdings, effectively prohibits an emanation of the State from selling agricultural land to the highest bidder in a public call for tenders, where the competent local authority considers that his bid is grossly disproportionate to the estimated value of that land, cannot be classified as ‘State aid’, provided that the application of that rule results in a price which is as close as possible to the market value of the agricultural land concerned, that being a matter for the referring court to ascertain.

C-172/14 ING Pensii: sharing clients on a private pension fund market

Case C-172/14 ING Pensii on arrangement for sharing clients on a private pension fund market and whether there is a restriction of competition within the meaning of Article 101 TFEU.

 

The Court held that article 101(1) TFEU must be interpreted as meaning that agreements to share clients, such as those concluded between the private pensions funds in the main proceedings, constitute agreements with an anti-competitive object, the number of clients affected by such an agreement being irrelevant for the purpose of assessing the requirement relating to the restriction of competition within the internal market.

Joined Cases T-425/04 RENV France v Commission and T-444/04 Orange v Commission: annulment of Commission decision

By its judgment in Joined Cases T-425/04 RENV France v Commission and T-444/04 Orange v Commission the General Court annulled the Commission’s decision on the ground that it had not correctly applied the test of the prudent private investor.

 

The shareholder loan offered to France Télécom by the French authorities at a time when the telephone operator was undergoing a major crisis cannot be classified as State aid.

 

Environment

C-653/13 Commission v Italy: incorrect application of Waste Directive

In the case C-653/13 Commission v Italy the Court ordered Italy to pay a lump sum of €20 million and a daily late-payment penalty of €120 000 as a result of its incorrect application of the Waste Directive in the region of Campania.

C-461/13 Bund für Umwelt und Naturschutz Deutschland: obligations laid down by the Water Framework Directive

In the case C-461/13 Bund für Umwelt und Naturschutz Deutschland the Court held that obligations laid down by the Water Framework Directive concerning enhancement and prevention of deterioration apply to individual projects such as the deepening of a navigable river. The directive precludes authorisation of such a project where it may cause a deterioration of the status of the body of water concerned and no derogation applies.

 

Article 4(1)(a)(i) to (iii) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy must be interpreted as meaning that the Member States are required — unless a derogation is granted — to refuse authorisation for an individual project where it may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive.

 

The concept of ‘deterioration of the status’ of a body of surface water in Article 4(1)(a)(i) of Directive 2000/60 must be interpreted as meaning that there is deterioration as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. However, if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a ‘deterioration of the status’ of a body of surface water, within the meaning of Article 4(1)(a)(i).

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