Publications / McDermott Newsletters / Brussels Brief - September 21, 2007

Brussels Brief - September 21, 2007

September 21, 2007

Full Printable Version in PDF Format

(Adobe Acrobat Reader required, available for free download here)

KEY DEVELOPMENTS

Competition:  CFI Rules on the Microsoft Saga

Morten Nissen

The European Court of First Instance (CFI) has upheld the European Commission's 2004 Decision that imposed a fine of EUR 497 million on Microsoft for abusing its dominant position.  The abusive conduct related to Microsoft’s refusal to supply its competitors with "interoperability information" and the tying of Windows Media Player to the Windows PC operating system.  By way of remedy, the Commission required Microsoft to disclose the specifications of its client/server and server/server communication protocols to any company wishing to develop and distribute work group server operating systems.  It also required Microsoft to offer for sale a version of Windows without Windows Media Player.  The only part of the 2004 Decision annulled by the CFI related to the appointment of a monitoring trustee, to be paid for by Microsoft.  The CFI Judgment may be appealed by Microsoft.

 

Competition:  CFI Denies Legal Professional Privilege to In-House Lawyers

Yannis Virvilis

The Court of First Instance (CFI) has issued its long-awaited Judgment in the Akzo Nobel and Akcros Chemicals case that relates to the confidentiality of communications between in-house lawyers and their internal “clients”.  The dispute arose in 2003 when European Commission officials dawn-raided the offices of Akzo and Akcros and seized a number of documents that the companies claimed were covered by legal professional privilege, as recognised by European law.  The CFI ruled that, by allowing the companies only a cursory look at the documents in question, the Commission had infringed the procedure that should be followed in such cases.   However, the CFI dismissed Akzo’s action on substance.  It upheld a 1982 Judgment, finding that legal professional privilege does not apply when a lawyer is bound to their client by a relationship of employment, thus excluding communications between a company and its in-house lawyers.

Competition:  Public Consultation on Draft Guidelines for Maritime Transport

Geert Dierickx

The European Commission has published draft guidelines on the new competitive regime in the maritime sector that was adopted in September 2006 by the European Council.  Under the new regime, the block exemption that applied to the sector was repealed and the scope of the competition implementing rules was extended to cabotage and tramp shipping services.  The Commission invites interested parties to comment on the draft guidelines before November 2007, with the intention of adopting these in 2008.

 

Competition:  Commission Fines Members of Fasteners Cartels EUR 329 Million

Juan Gutiérrez

The European Commission has fined YKK, Coats and four other textiles groups a total of almost EUR 329 million for operating cartels in the markets for fasteners and attaching machines in Europe and worldwide.  The Commission found four separate cartels in which these companies co-ordinated price increases, fixed minimum prices, allocated customers, shared markets and exchanged other commercially important and confidential information.  Prym, which was also found to have participated in the cartels, received full immunity from fines under the Commission's leniency programme and smaller reductions were granted to YKK and Coats in return for co-operating with the Commission.   (See Brussels Brief of 14 September 2007)

 

Trade:  EU and South Korea Hold Third Round of FTA Negotiations

Emanuel De Duonni

On 17 September 2007, the European Union and South Korea began third round negotiations on a Free Trade Agreement (FTA), following the EU’s ambitious 100 per cent trade liberalisation offer, made in July.  In 2006, EU-South Korea trade reached EUR 60 billion and studies suggest that if South Korea is willing to match the EU’s proposal, the proposed deal could increase trade between 30 and 40 per cent.  A consensus would allow European businesses to access key market areas including automobiles and investment services.  This would be in line with the Commission’s Global Europe strategy, which aims to increase EU presence in emerging markets.

 

Energy:  Commission Proposal for a Third Legislative Package

Elena Kostadinova

The European Commission has proposed new legislation which seeks to resolve structural failings in the electricity and gas markets and improve a number of areas.  The technical measures cover five main areas: (i) unbundling; (ii) regulatory oversight and co-operation; (iii) network cooperation; (iv) transparency and record keeping; and (v) access to storage and liquefied natural gas (LNG) facilities.  The most controversial issue has been the proposed ownership unbundling (the separation of the operation of electricity and gas transmission networks and supply and generation activities).  According to the proposal, network operators would no longer be affiliated to, or part of, a group which is also active in supply and generation.  There may be a derogation whereby the network assets would remain with a company also active in supply, but the technical and commercial operation of those assets would be put in an independent company to be designated by the Member State concerned.  Despite this, France and Germany have already expressed their concerns about ownership unbundling.

 

State Aid:  Commission Authorises Two French R&D Aid Projects Totalling EUR 119 Million

Benoît Keane

The European Commission has cleared two financial aid programmes to be provided by the French Industrial Innovation Agency under the European Union’s State aid rules on R&D.  The first programme, NanoSmart, is designed to improve the performance of microelectronic and optoelectronic components in the nanotechnology industry.  It is to be carried out by the company SOITEC in partnership with the research centre CEA-LETI and has been granted EUR 80 million.  The second programme, HOMES, is intended to research means of improving the energy efficiency of buildings.  Schneider Electric and 15 other companies and research centres will participate in the HOMES programme, which has been granted EUR 39 million. 

 

Telecommunications:  Commission Supports Common Approach to Lower Mobile Rates

Chen Dingsheng

In a procedure under the EU Telecom Rules regarding mobile termination rates in France, the European Commission welcomed the French regulator’s proposal for a common European approach to lower mobile rates and the calculation of cost-oriented mobile termination rates.  The Commission is ready to guarantee a harmonised approach across the European Union, and will work closely with the European Regulators Group to achieve this.  The Commission considers that the French measure will provide an effective temporary instrument to promote competition and encourage new entrants’ investments, but that a consistent methodology throughout the EU would still have to be adopted.

 

NEXT WEEK’S EVENTS

Monday 24 September – Friday 28 September 2007

 

COUNCIL MEETINGS

Competitiveness Council (27 September 2007)

 

COURT OF JUSTICE

Judgments

Approximation of laws

C-115/07 Commission v Czech Republic

 

Commercial policy

C-351/04 Ikea Wholesale

 

Industrial Policy

C-529/06 Commission v Luxembourg

C-35/07 Commission v Portugal

 

Taxation

C-409/04 Teleos and Others

C-146/05 Collée

C-184/05 Twoh International

 

Opinions

Justice and Home Affairs

C-133/06 Parliament v Council

 

Transport

C-396/06 Kramme

 

COURT OF FIRST INSTANCE

Judgments

Agriculture

Joined Cases T-8/95, T-9/95 Pelle v Council and Commission

 

Intellectual property

T-418/03 La Mer Technology v OHMI - Laboratoires Goëmar (LA MER)

 

McDermott Will & Emery

McDermott Will and Emery