Publications / McDermott Newsletters / Brussels Brief - December 12, 2008

Brussels Brief - December 12, 2008

December 12, 2008

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KEY DEVELOPMENTS

Finance – State Aid:  New Commission Guidelines on Recapitalisation of Banks

Jacques Pieters

On 8 December 2008, the European Commission published Guidelines on how EU Member States can recapitalise troubled banks without risking an infringement of EU competition rules.  This comes in a week that has seen further approvals of State aid measures to banks in Austria and France.  The new Guidelines confirm and refine an earlier guidance document adopted on 13 October 2008.  They focus on safeguards that ensure that public money used to stabilise banks in the current economic climate is used to sustain lending to the real economy, rather than to finance aggressive commercial conduct to the detriment of competitors who manage without State aid.

The new Guidelines also envisage avoiding State intervention that exceeds the time necessary to deal with the consequences of the financial crisis and/or the time needed to return to a market that functions normally. 

According to the Guidelines, these objectives can be mainly achieved by making banks pay a risk premium for the capital received that is consistent with market principles and/or practices.  For example, banks faced with insolvency should pay a higher premium for the capital received and these premiums should rise if the State aid capital is needed for a longer time.  All recapitalisation projects will still have to be submitted to the Commission, accompanied by a restructuring plan that will ensure the long term survival and profitability of the bank in receipt of State aid.

 

Competition:  Consultation on Block Exemptions and Horizontal Guidelines

Andrea Hamilton

The European Commission has launched a public consultation concerning certain block exemption regulations (BERs) and the Commission’s Guidelines on Horizontal Cooperation Agreements (Horizontal Guidelines).  BERs are promulgated by the Commission.  They exempt from Article 81 of the EC Treaty, which concerns restrictive agreements, certain types of agreements that are typically pro-competitive.  The Commission’s current consultation focuses on two specific BERs:  the so-called “Specialisation” block exemption, Regulation (EC) No 2658/2000, and the “Research & Development” block exemption, Regulation (EC) No 2659/2000; both of which are set to expire on 31 December 2010.  The Horizontal Guidelines complement the BERs because they outline the Commission’s analytical approach to agreements among competitors that are not automatically exempt from Article 81 EC under the BERs. 

The regime of BERs and the guidelines under review have provided businesses operating in the European Union with greater legal certainty when concluding agreements with competitors aimed at joint production, joint purchasing and marketing, as well as joint research and development.  Companies have either benefited from an exemption altogether if certain criteria are met under the BERs, or from a relatively clear understanding of how the Commission would analyse their agreement under the Horizontal Guidelines.

As part of its current consultation, the Commission is seeking comments by 30 January 2009 from stakeholders who have applied the two BERs and accompanying Horizontal Guidelines.  The Commission states that it intends to use comments received to ensure that any post-2010 regime reflects market realities and provides for the possibility of fair cooperation among competitors.  

 

Telecommunications:  Commission Issues Guidelines to get Mobile TV on Europeans’ Mobile Phones

Mélanie Bruneau

The European Commission has published Guidelines identifying principles that EU Member State regulators and governments should follow when authorising operators to provide mobile TV services.  This is an important market in which worldwide mobile TV revenues are expected to reach more than EUR 7.8 billion in 2013.  The objective of these Guidelines and of the addition of the DVB-H standard to the EU list of official standards in March 2008, is to accelerate roll-out of the service across Europe.  Authorisations from Member States for mobile TV services are needed before any commercial launches by operators.  To date, only a few Member States, including Austria, Finland, France and Germany, have adopted legislation for new mobile TV services.  The Commission would like to maintain the momentum for mobile TV in the European Union in order to create a coherent and favourable regulatory environment for this new service. 

The Guidelines set forth the following principles:  a straightforward, transparent and non-discriminatory procedure for awarding licences should be implemented; the quality of the service delivered to customers, including indoor coverage and transmission quality, should be part of the award conditions; frequencies made available for mobile TV should be withdrawn if the service has not started within a reasonable period of time; and the industry should ensure that the DVB-H based mobile TV services proposed in each Member State are compatible. 

 

Energy:  Agreement Reached on Renewables Directive

Leigh Smith

On 9 December 2008, delegations from the European Parliament, the European Council and the European Commission reached agreement over the proposed EU directive on renewable energy.  The proposal has been broadly endorsed and will set a target of producing 20 per cent of Europe’s energy from renewable sources by 2020.

The proposal, presented by the Commission in early 2008, will require Member States to increase the amount of energy they produce from renewable sources.  Each Member State will be set different binding targets based on their current renewable outputs.  Combined, these national targets will increase the market share of renewables in Europe from 8.5 per cent today to 20 per cent by 2020.  However, the possibility of financial penalties for Member States that fail to meet interim targets was rejected.

Member States will also be able to include cooperation with other Member States towards their targets and under certain conditions import renewable energy from third country sources.  On the other hand, investment in third country sources will not count towards a State’s targets.

The directive is expected to be adopted in the first half of 2009.

 

Pharmaceuticals:  Commission Issues Pharmaceutical Package

Laura Zadunayski

On 10 December 2008, the European Commission adopted a package composed of a Communication and three legislative proposals with the objective of ensuring safe, innovative and accessible medicines to European citizens.  The Communication sets out a series of measures, both legislative and non-legislative, with the aim of tackling major issues such as innovation, counterfeit medicines, availability of medicines and cooperation with major and emerging partners.

The first proposal aims at ensuring access to reliable information on medicines by laying down clear rules on information provided by pharmaceutical companies on prescription-only medicines.

The second proposal aims at strengthening the system for safety monitoring of medicines (pharmacovigilance) by simplifying current rules and procedures, providing clear roles and responsibilities for key stakeholders, introducing a risk management plan for each new medicinal product and strengthening the reporting system for adverse reaction.

Finally, the third proposal aims at strengthening EU legislation against counterfeit medicines with measures in relation to the product itself such as safety features to ascertain identification, authenticity and traceability of medicines, measures in relation to active pharmaceutical ingredients imported from third countries and measures intended to strengthen supervision of actors in the distribution chain.

These proposals will now be transmitted to the European Parliament and the Council for discussion.

 

NEXT WEEK’S EVENTS

Monday 15 December – Friday 19 December 2008

 

COUNCIL MEETINGS

Employment, Social Policy, Health and Consumer Affairs Council (15 – 16 December 2008)

Agriculture and Fisheries Council (18 – 19 December 2008)

 

COURT OF JUSTICE

Judgments

Approximation of laws

C-73/07 Satakunnan Markkinapörssi and Satamedia

 

Citizenship of the Union

C-524/06 Huber

 

Company law

C-213/07 Michaniki

C-338/06 Commission v Spain

 

Competition

Joined Cases C-101/07 P, C-110/07 P Coop de France Bétail and Viande v Commission

 

Environment and consumers

C-127/07 Arcelor Atlantique and Lorraine and Others

 

External relations

C-47/07 P Masdar (UK) v Commission

 

Free movement of goods

C-205/07 Gysbrechts and Santurel Inter

 

Freedom of establishment

C-210/06 Cartesio

 

Intellectual property

C-16/06 P Éditions Albert René v Office for Harmonisation in the Internal Market

 

Principles of Community law

C-349/07 Sopropé

 

Social policy

C-306/07 Ruben Andersen

 

State aid

C-384/07 Wienstrom

 

Taxation

C-517/07 Afton Chemical

C-488/07 Royal Bank of Scotland

 

Opinions

Agriculture

C-343/07 Bavaria and Bavaria Italia

 

Area of Freedom, Security and Justice

C-420/07 Apostolides

 

Company law

C-250/07 Commission v Greece

 

Convention on jurisdiction

C-394/07 Gambazzi

 

Environment and consumers

C-300/07 Hans & Christophorus Oymanns

 

Free movement of goods

C-531/07 Fachverband der Buch- und Medienwirtschaft

 

Freedom of establishment

C-531/06 Commission v Italy

Joined Cases C-171/07, C-172/07 Apothekerkammer des Saarlandes and Others

 

Taxation

C-303/07 Aberdeen Property Fininvest Alpha

 

COURT OF FIRST INSTANCE

Judgments

Commercial policy

T-462/04 HEG and Graphite India v Council

 

Intellectual property

T-225/06 Budějovický Budvar v OHMI - Anheuser-Busch (BUD)

T-257/06 Budějovický Budvar v OHMI - Anheuser-Busch (BUD)

T-309/06 Budějovický Budvar v OHMI - Anheuser-Busch (BUD)

T-255/06 Budějovický Budvar v OHMI - Anheuser-Busch (BUD)

T-372/06 Bomba Energia Getränkevertriebs v OHMI - Eckes-Granini (Bomba)

T-259/06 Torres v OHMI - Navisa Industrial Vinícola Española (MANSO DE VELASCO)

T-285/06 Torres v OHMI - Bodegas Cándido (TORRE DE FRIAS)

T-286/06 Torres v OHMI - Vinícola de Tomelloso (TORRE DE GAZATE)

T-287/06 Torres v OHMI - Bodegas Peñalba López (Torre Albéniz)

T-8/07 Torres v OHMI - Gala-Salvador Dalí (TG Torre Galatea)

T-16/07 Torres v OHMI - Sociedad Cooperativa del Campo San Ginés (TORRE DE BENÍTEZ)

 

State aid

T-196/04 Ryanair v Commission

 

McDermott Will & Emery

McDermott Will and Emery