Brussels Brief - June 19, 2009
June 19, 2009
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Key Developments
Antitrust: Commission Statement on Microsoft Internet Explorer Announcement
Matthew Kopetski
The European Commission has issued an official statement suggesting that Microsoft’s announcement that it will offer Windows 7 in the European Economic Area (EEA) without Internet Explorer (IE) may not be sufficient to remedy alleged infringements of European competition rules.
The Commission stated that it had doubts that this action would give consumers a genuine choice of web browsers and therefore it may not be sufficient to remedy Microsoft’s alleged abuses of its dominant position in the computer operating system market. With regard to retail sales of Windows 7, the Commission said that Microsoft’s decision appears to further limit consumer choice. However, the Commission’s statement on sales to computer manufacturers was more positive. It noted that this decision should give manufacturers the ability to choose whether to install IE, another browser, or multiple browsers.
The Commission’s investigation into whether Microsoft has abused its dominant position in the PC operating system market by tying IE to Windows is on-going.
Intellectual Property – Trademark: CFI Annuls OHIM Decision on “Last Minute Tour”
Andrea Hamilton
The Court of First Instance (CFI) has annulled the Office for Harmonisation in the Internal Market‘s (“OHIM”) decision concerning the validity of the “Last Minute Tour” trade mark, following a challenge from a competitor. OHIM is responsible for managing Community trade marks.
The dispute arose in 2003 when a firm known as Last Minute Tour (LMT) obtained a European trade mark registration comprised of the name “Last Minute Tour.” A United Kingdom-based firm known as Last Minute Network (LMN), however, had previously been refused a European trade mark registration for its sign “lastminute.com” in 2000. LMN applied to OHIM to declare the mark “Last Minute Tour” invalid under the Community trade mark Regulation. LMN argued that this Regulation permits the owner of a non-registered national mark (i.e. LMN) to have cancelled a later-registered Community trade mark (i.e. “Last Minute Tour”), if national law gave the owner of the non-registered trade mark the right to prohibit use of the registered trade mark. Such a right existed, LMN argued, under the UK law of “passing off”, which can be used to enforce unregistered trade mark rights if certain criteria are met. OHIM denied LMN’s application, and LMN appealed to the CFI.
The CFI backed LMN’s arguments and annulled OHIM’s decision to deny LMN’s challenge to the “Last Minute Tour” Community mark. In particular, the CFI concluded that OHIM misinterpreted the criteria of the UK law of passing off. The CFI therefore ordered OHIM to re-examine LMN’s application to cancel LMT’s Community trade mark “Last Minute Tour.” This decision is significant because a company has essentially won the right to have a competing firm’s European trade mark cancelled on the basis of its national rights. The parties have two months to appeal to the European Court of Justice.
Trade: Commission Finds U.S. Anti-Gambling Laws Infringe WTO Rules
Katarzyna Wilk
In a report published on 10 June 2009, the European Commission has found that U.S. laws prohibiting the cross-border supply of remote gambling and betting services and the enforcement of those laws against EU companies are in violation of Articles XVI (Market Access) and XVII (National Treatment) of the General Agreement on Trade in Services (GATS) and are not justified under Article XIV (General Exceptions).
The report is the result of a formal examination procedure initiated on 11 March 2008 under the EU Trade Barriers Regulation. The Commission launched the procedure following a complaint lodged by the Remote Gambling Association, which represents several of the EU operators that were forced to flee the U.S. market in 2006 as a result of legal proceedings brought against them by the U.S. authorities.
The Commission's investigation has concluded that the U.S. prohibition on online gambling is an obstacle to trade that has serious adverse effects on EU economic interests. These effects include: (i) revenue and stock market value lost by the affected companies as a result of their absence from the U.S. market and (ii) the threat of serious sanctions hanging over them that affect their normal operation outside the United States.
Although the Report finds that WTO proceedings would be justified, the Commission has indicated its preference to pursue a negotiated solution, notably in the light of the ongoing U.S. withdrawal from its GATS commitments on gambling and betting services.
State Aid/Transport: Commission adapts position on State Aid to Ship Management Companies
Jacques Pieters
The maritime transport sector benefits from State aid under the optional tonnage tax scheme if the national rules of a Member State provides for such a tax. If a company opts in to the scheme, it is taxed on the basis of a fictional income calculated on the basis of the net registered tonnage, rather than on the actual profit or loss of that company The result is generally beneficial for the shipping company. The tonnage tax also applies usually to ship management companies. These are companies that perform services that are normally taken care of by ship owners themselves (recruiting, safety supervision, training, etc,).
Previously, ship management companies were only eligible for the tonnage tax scheme if they provided both technical management and crew management services for ship owners. From now on, the scheme will be available where a ship management company provides either one.
The possibility to opt in to the tonnage tax scheme will be conditional upon the full compliance of the companies/ships involved with international safety rules and the application of the substantial provisions of the 2006 Maritime Labour Convention.
Technology: Commission Consults on Regulatory Strategy to Promote Broadband
Mélanie Bruneau
The European Commission has launched a public consultation on its revised draft Recommendation for the regulation of next generation access (NGA) broadband networks. A previous public consultation, which took place at the end of 2008, showed general support for a common regulatory approach to NGA broadband access to avoid Single Market distortions and create legal certainty for stakeholders. Comments received from stakeholders in the course of the 2008 consultation have been used by the Commission to prepare the revised draft Recommendation.
This revised draft aims to develop a pan-European framework in order to provide national regulators across Europe with clear guidance on the regulatory approach to be taken to ensure investment in NGA networks while guaranteeing effective competition. The draft includes mechanisms to divide the investment risk between investors and operators seeking access to NGA networks. It also defines conditions under which co-investment schemes could be deemed pro-competitive. In addition, the draft provides that deployment by the dominant operator of multiple fibres could justify less stringent regulatory obligations.
The public consultation will be open until 24 July 2009. The Commission plans to take the comments into account and adopt the final Recommendation by the end of 2009.
NEXT WEEK’S EVENTS
Monday 22 June – Friday 26 June 2009
COUNCIL MEETINGS
Agriculture and Fisheries Council (22 – 23 June 2009)
Environment Council (25 June 2009)
COURT OF JUSTICE
Judgments
Agriculture
C-430/07 Exportslachterij J. Gosschalk & Zoon
Area of Freedom, Security and Justice
C-14/08 Roda Golf & Beach Resort
Freedom to provide services
C-356/08 Commission v Austria
Opinion
Environment and consumers
C-205/08 Alpe Adria Energia
Freedom of movement for persons
C-73/08 Bressol e.a. and Chaverot e.a.
Freedom to provide services
C-200/08 Commission v France
Free movement of capital
C-247/08 Gaz de France - Berliner
Transport
C-301/08 Bogiatzi (épouse Ventouras)
COURT OF FIRST INSTANCE
No judgments scheduled for next week.
