Brussels Brief - May 22, 2009
May 22, 2009
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Key Developments
Pharmaceuticals / Internal Market: Ownership and Operation of Pharmacies Can be Restricted to Pharmacists Alone
Mélanie Bruneau
In two recent cases, Commission v Italy and Apothekerkammer des Saarlandes and Others, the European Court of Justice (ECJ) found that the Italian and German legislations’ providing that only pharmacists may own and operate a pharmacy, is justified by the objective of ensuring that the provision of medicinal products to the public is reliable and of good quality.
The ECJ held that this national legislation is justified even though it constitutes a restriction of the freedom of establishment and the free movement of capital. As a result, a Member State may consider, at its discretion, that the operation of a pharmacy by a non-pharmacist may represent a risk to public health.
The ECJ also stated that it has not been established that a measure less restrictive than the exclusion of non-pharmacists would make it possible to ensure the level of reliability and quality in the provision of medicinal products to the public as effectively as the application of that exclusion. Therefore, the national legislations at issue are appropriate for securing attainment of the objective of protection of public health and do not go beyond what is necessary for reaching that objective.
Consumers: European Union Makes Progress in Cleaning up Airline Ticketing Websites
Matthew Kopetski
The European Commission has said that the results of the European Union’s “health check” of airline ticket selling websites show that significant progress has been made towards bringing these websites into compliance with European consumer protection rules. The Commission stated that, as a result of this investigation, 115 out of 137 airline websites have been brought into compliance with these rules. In addition, of the 67 major airline websites investigated, 52 received a "clean bill of health", meaning that those websites fully complied with the standards set out in a 14-point checklist, while the remaining made commitments to remedy the outstanding issues
This investigation was designed to monitor the situation surrounding online sales of airline tickets, taking into account the entry into force in September 2007 of the Directive on Unfair Commercial Practices and the Air Services Regulation. This was done on the basis of a 14-point checklist, agreed with the airline industry, which focused on clear pricing, the availability of offers and the existence of fair contractual terms.
The Commission is currently working with the airline industry to institute an industry wide agreement to uphold standards on airline ticket selling websites. The Commission is also preparing a Communication designed to strengthen the national bodies tasked with enforcing consumer protection on the internet.
Finance/Merger: Commission Approves Nationalisation of Hypo Real Estate
Contact Philip Bentley
The European Commission approved on 15 May, under the EC Merger Regulation (ECMR), the acquisition of Hypo Real Estate AG (Hypo), the German financial institution, by one of Germany’s state-owned financial institutions, the Financial Market Stabilisation Fund (SOFFIN). SOFFIN was established to avert the impact of the financial crisis and with this in mind it has the power to purchase shareholdings in financial institutions.
In April of this year, SOFFIN acquired Hypo, which is active in real estate financing and was an early victim of the financial crisis. In spite of the fact that the transaction constitutes a “nationalisation” of Hypo, the Commission concluded that the ECMR was applicable. The Commission’s reasoning was that Germany’s Financial Market Stabilisation Act and the terms of the transaction do not ensure that Hypo is operated as an independent commercial entity separate from other State owned financial institutions, in particular from Kreditanstalt fur Wiederaufbau (KfW). The Commission therefore reviewed the transaction under the ECMR and, on the substance, the transaction was cleared as there was no overlap.
This is the first time that a bank nationalisation has been notified to the Commission under the ECMR in the context of the financial crisis.
Direct Taxes: Commission Issues Reasoned Opinion on Austrian Fiscal Representatives Rules
Jacques Pieters
Austrian law requires foreign investment funds and real estate funds to appoint a fiscal representative that ensures compliance with Austrian tax law when the funds undertake business activities in Austria. This fiscal representative must be an Austrian credit institution or an Austrian chartered accountant.
The European Commission now considers these rules discriminatory since they do not apply to Austrian investment or real estate funds and form a disproportionate restriction to the freedom of services by barring foreign chartered accountants or credit institutions from becoming a fiscal representative in Austria.
In a reasoned opinion, the Commission has now requested Austria to adapt its legislation to avoid the case being referred to the European Court of Justice.
Telecoms: Commission Launches Infringement Case Against Slovakia Over Independence of Regulator
Katarzyna Wilk
The European Commission considers that the decision of the Slovak Parliament to dismiss the chairman of the national telecoms regulator (TÚRS) represents a serious violation of its independence.
According to EU telecoms rules, governments and parliaments are only permitted to remove a chairman in limited circumstances and must have serious reasons for taking such action. The Commission has taken the view that the reasons for the dismissal given by the Slovak Parliament violate the independence of the national regulators. It has sent two letters to bring the seriousness of the case to the attention of the Slovak government but has not received a satisfactory response. The Commission has now sent a letter of formal notice to Slovakia, the first stage of an infringement proceeding under Article 226 of the EC Treaty, which can eventually lead to a case before the European Court of Justice (ECJ).
Similar cases have been opened against Poland, which was referred to the ECJ, and Romania.
NEXT WEEK’S EVENTS
Monday 25 May – Friday 29 May 2009
COUNCIL MEETINGS
Agriculture and Fisheries Council (25 – 26 May 2009)
Competitiveness Council (28 – 29 May 2009)
COURT OF JUSTICE
No judgments or opinions scheduled for next week
COURT OF FIRST INSTANCE
No judgments scheduled for next week
