Publications / McDermott Newsletters / Brussels Brief - November 16, 2007

Brussels Brief - November 16, 2007

November 16, 2007

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KEY DEVELOPMENTS

Mergers:  Google—DoubleClick Deal Enters Second Phase

Yannis Virvilis

The European Commission has opened an in-depth second phase investigation into the proposed acquisition by Google of the online advertising technology company, DoubleClick.  During the first phase of the proceedings the Commission found that the deal, which is contested by rivals such as Microsoft and Yahoo, might restrict competition in the markets for intermediation and “ad serving” in online advertising.  During this second phase, the Commission will investigate whether, in the absence of this transaction, DoubleClick could become an effective competitor in the market and whether vertical concerns might arise.

 

Environment:  CFI Upholds German Adjustments to Emissions Allowances

Elena Kostadinova

The European Court of First Instance (CFI) has ruled that the German rules on ex-post reduction of emissions allowances granted to installations covered by the EU Emissions Trading Scheme (ETS) are compatible with EU rules.  Under the ETS, Germany determined the total amount of allowances and their allocation to the different installations in Germany for the period 2005 to 2007.  The German rules required the withdrawal of allowances in a limited number of cases where the amount of the allowances became disproportionate to the actual emissions.  According to the Commission, however, Germany had no right to adopt such ex-post adjustments because they would dissuade installations from reducing the volume of their emissions.  The CFI analysed the ETS rules and concluded that they do not preclude Germany from applying the ex-post adjustments in question and that these adjustments would not prejudice the objectives of the ETS.

 

Air Transport:  EU Action Against Misleading Web Sales of Airline Tickets

Philip Torbøl

The European Commission, together with the national consumer rights authorities in 15 EU Member States and Norway, has scrutinised over 400 websites selling airline tickets to verify their compliance with consumer law.  Irregularities were found on 226 websites.  The main irregularities included prices being quoted exclusive of taxes, unclear information on the availability of certain offers and misleading contract terms where, for example, consumers have to explicitly opt out of insurance clauses.  Many of the websites concerned are those through which airlines themselves distribute their tickets directly to consumers.  The Commission and the national authorities will now contact the companies and request them to clarify or change their practices.  Those which fail to comply may face legal action, fines and even the closure of their websites. 

 

Telecommunications:  Commission Proposes Single European Telecoms Market

Chen Dingsheng

The European Commission has adopted a Telecoms Reform Package whereby EU citizens would benefit from better and cheaper communication services, regardless of where they live or travel within the European Union.  The Commission proposes: (i) strengthening consumer rights; (ii) increasing choice by reinforcing competition between telecoms operators; (iii) promoting investment in new communication infrastructures, in particular by freeing radio spectrum for wireless broadband services; and (iv) making communication networks more reliable and secure.  The Commission recommends that all national regulators have the opportunity to impose functional separation, and proposes establishing a European Telecom Market Authority by combining the functions of the current European Regulators Group and the European Network and Information Security Agency. 

 

CFI:  No Protection of Meeting Participants’ Identities in Unfair Trade Proceedings

Patricia Armesto

Bavarian Lager, an importer of German beer, requested the European Commission to disclose the names of participants in a meeting between the Commission, the UK authorities and the Confédération des Brasseurs du Marché Commun concerning exclusive purchasing contracts.  The Commission disclosed some, but not all, of the information requested, arguing that Bavarian Lager had not established that the disclosure of individuals’ names was needed to protect its interests.  Bavarian Lager applied to the Court of First Instance (CFI) for the annulment of this decision.  The CFI held that, in this case, disclosure of the names of representatives of a collective body would not affect the protection of the privacy and integrity of the individuals concerned.  The CFI therefore annulled the Commission’s decision.

 

State Aid:  Commission Investigates R&D Aid for Peugeot-Citroën’s Hybrid Diesel Car

Geert Dierickx

The European Commission has launched an investigation to determine whether French plans to grant EUR 96 million in aid to Peugeot-Citroën for the development of a hybrid diesel car are compatible with EU State aid rules.  Although the Commission fully supports the development of less polluting cars, it considers that Peugeot-Citroën, the second largest European car manufacturer, could have undertaken such development without being subsidised.  Only where the market is unable to trigger R&D activities in a specific field is State aid acceptable and even then it must be well-targeted.  However, given that other car manufacturers have already announced similar projects, the Commission is concerned that the State aid would simply finance Peugeot-Citroën’s R&D activities.

 

Trade:  First Meeting of Transatlantic Economic Council

Kate DaSilva

The EU—US Transatlantic Economic Council (TEC) met for the first time on 9 November 2007.  Since April 2007, the TEC has made substantial progress in removing barriers to trade and investment.  Key areas that the TEC agreed to promote include (i) standards for biofuels; (ii) transatlantic investment and global investment regimes; (iii) mutual recognition of US and EU trade partnership programmes (e.g. AEO and C-TPAT); (iv) harmonised accounting standards; and (v) a common format for introducing new drugs for rare diseases.  The TEC also agreed to enhance co-operation on import safety.  In addition, the European Commission has proposed legislation that will allow products to be labelled with both imperial and metric measurements.  The Commission will review issues concerning US poultry treated with pathogen reduction treatments and propose legislation that will allow patients to access information regarding legal pharmaceuticals.

 

Internal Market:  Commission Loses “An Post” Procurement Case Against Ireland

Bróna Heenan

The European Commission has lost its legal action against Ireland for entrusting a services contract for the payment of social welfare benefits to An Post, the Irish postal service, without any prior advertisement.  Both parties agreed that the particular services contract was not subject to a prior advertisement requirement under the EU procurement rules (as a Part B services contract).  However, the Commission considered that fundamental EC Treaty principles required that such a contract be advertised in advance.  In cases like these it is for the Commission to prove that the particular contract had cross-border interest.  The Court dismissed the case on the grounds that the Commission had not provided sufficient evidence of cross-border interest.

 

State Aid:  Commission Opens Formal Investigation into French Plans to Grant Tax Aid to Insurers

Mélanie Bruneau

The European Commission has opened a formal investigation to examine whether France’s plans to grant various tax benefits to insurers in respect of certain sickness, death and invalidity policies of a social nature are compatible with EU State aid rules.  The French authorities argue that these measures are compatible with Article 87(2)(a) of the EC Treaty, a relatively infrequently used provision.  The Commission nevertheless has doubts whether the three conditions set by Article 87(2)(a) are met, namely whether (i) the aid measures have a social character; (ii) the benefits will, in fact, be passed on to individual consumers; and (iii) the measures are non-discriminatory.  The opening of a formal investigation will give interested third parties the opportunity to submit their comments.

 

NEXT WEEK’S EVENTS

Monday 19 November – Friday 23 November 2007

 

COUNCIL MEETINGS

General Affairs and External Relations Council (GAERC) - Including Defence and Development Ministers (19 – 20 November 2007)

Competitiveness Council (22 – 23 November 2007)

ECOFIN Council (Budget) (23 November 2007)

 

COURT OF JUSTICE

Judgments

Fisheries policy

C-6/06 P Cofradía de pescadores "San Pedro" de Bermeo and Others v Council

 

Industrial Policy

C-262/06 Deutsche Telekom

 

State aid

C-525/04 P Spain v Lenzing

C-260/05 P Sniace v Commission

 

Opinions

Agriculture

C-51/05 P Commission v Cantina sociale di Dolianova and Others

 

Company law

C-393/06 Ing. Aigner

 

Competition

C-446/05 Doulamis

 

Environment and consumers

C-308/06 The International Association of Independent Tanker Owners and Others

C-412/06 Hamilton

 

COURT OF FIRST INSTANCE

Judgments

Intellectual property

T-149/06 Castellani v OHMI - Markant Handels und Service (CASTELLANI)

T-458/05 Tegometall International v OHMI - Wuppermann (TEK)

T-111/06 Wesergold Getränkeindustrie v OHMI - Lidl Stiftung (VITAL& FIT)

 

McDermott Will & Emery

McDermott Will and Emery