Food Law: Validity of Food Supplements Directive Upheld by the ECJ
In what may come as a surprise to many, the European Court of Justice (ECJ) has upheld the validity of the European Directive on food supplements (2002/46/EC), rejecting the arguments of a pan-European association of manufacturers, wholesalers, distributors, retailers, and consumers, and a trade association representing 580 companies. In April, the Advocate General delivered an Opinion in favour of the claimants in which he criticised the Directive (see Brussels Brief April 8, 2005). In particular, the Directive, which prohibits trade in food supplements not included in positive lists compiled at European level, was criticised for failing to lay down the criteria according to which additional supplements can be included in those positive lists. Accepting that the latter ‘should ideally have been included in the actual provisions of the Directive’, the ECJ found that those criteria were clearly set out in the non-legally binding recitals to the Directive. The Advocate General had also criticised the lack of guarantees for private persons in the procedure for modification of the positive lists. The ECJ remarked that ideally the Directive should have included provisions guaranteeing that the procedure would be transparent and completed within a reasonable time. Nevertheless, the ECJ was satisfied that the principle of sound administration, by which the Commission is bound, provided sufficient assurances.
IP: EU Tougher on Counterfeiting
The European Commission has proposed a Directive and a Framework Decision to combat infringements of intellectual property rights. Under the proposed Directive, all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements must be treated by European Union (EU) Member States as criminal offences. The proposed Framework Decision sets a threshold for criminal penalties applicable to the perpetrators of these offences: at least four years' imprisonment if the offence involves a criminal organisation or if it jeopardises public health and safety. The applicable fine must be at least EUR 100,000 to EUR 300,000 for cases involving criminal organisations or posing a risk to public health and safety. The proposal allows Member States to apply tougher penalties.
Consumer Protection: ECJ Overturns Damages Award to CEVA and Pfizer
Philip Bentley QC
In 1993 CEVA Santé Animale SA applied to the European Commission for the fixing of a minimum residue level (“MRL”) for progesterone in cattle and horses. Due to divergent scientific opinion as to the risks involved for human consumption of residues of progesterone in animal products, the Commission had to consult various scientific committees. It had still not come up with a definitive proposal in July 2000, when CEVA and Pfizer put the Commission on formal notice to take the necessary measures to fix an MRL for progesterone. After further consultation, the Commission finally came up with a proposal in July 2001. CEVA and Pfizer sued the Commission for damages for inaction during this period, and were successful before the Court of First Instance (CFI). The European Court of Justice (ECJ) has just overturned the CFI’s ruling on the grounds that this is an area in which the Commission must be given a discretion sufficient to allow it to determine, on a fully informed basis, the measures that are necessary and appropriate for the protection of public health. Given the complexity of the case, the ECJ held that the Commission had not disregarded the limits of its discretion.
Mergers: Commission Gives Second Phase Clearance of Siemens - VA Tech Deal Subject to Conditions
The European Commission has approved the acquisition of the Austrian group VA Tech by Siemens subject to a number of conditions. The Commission had initially found that the parties’ overlaps in areas such as power stations, electricity supply networks, trains, steelworks and large buildings gave rise to anticompetitive concerns. However, Siemens offered commitments that alleviated these concerns. In particular, Siemens committed to divest itself of VA Tech’s hydro power business, which is the European market leader for key components used in hydro-electric plants, such as turbines and generators. In addition, Siemens committed to ensure the independence of SMS Demag, in which it owns a 28 per cent shareholding, from the acquired VA Tech business. SMS Demag is VA Tech’s main competitor in the building of steel production plants.
Internal market: Final Phase in Consultations on Modernising EU Rules for Audiovisual Content
The European Commission has made public the preliminary conclusions drawn from the consultations of experts and stakeholders on the future EU rules for audiovisual content. These consultations have revealed that Europe’s audiovisual sector is undergoing dramatic changes. Soon telecom providers will be able to deliver broadcasting services of a quality equal to traditional television, while traditional content providers will enter the communications markets. This will allow consumers to watch or listen to audiovisual content on all sorts of technical platforms (television set, computer, mobile phone, personal digital assistant, etc). To take account of these developments, the present rules in the “Television Without Frontiers Directive” of 1989 must be replaced by a set of rules better adapted to cover audiovisual content services whatever the delivery platform. The Commission Services have published five papers on which interested parties now have the opportunity to comment by 5 September 2005. These papers focus on the following topics: i) Scope of modern rules for audiovisual content and jurisdictional matters, ii) commercial communications, iii) protection of minors and human dignity, iv) right of reply and v) cultural diversity. An audiovisual conference will also be co-organised with the UK Presidency in Liverpool from 20-22 September 2005. Following this final round of consultations, the Commission intends to present a proposal for new EU rules by the end of 2005.
Internal Market: Captains of Europe’s Information and Communication Technologies and Media Industry Sign Up to Commission Roadmap i2010 for Growth and Jobs
Technological and market developments are bringing about third generation mobile phones, digital television broadcasts, online music, Voice over IP and interactive Internet services. In this context, ten business leaders of Europe’s major telecommunications, Internet, television and music companies welcomed the European Commission’s response to these challenges given in its new initiative “i2010 – European Information Society 2010 for growth and jobs”. i2010 is a comprehensive strategy for modernising and deploying all EU policy instruments to encourage the development of the digital economy. The ten business leaders also agreed to work together with Member States and the European Commission on the basis of an “Agenda for Unlocking Europe’s Digital Economy”. The major issues are i) completion of the internal market for electronic communications and media services, ii) a more modern and flexible legal framework for audiovisual content, iii) efficient and interoperable Digital Rights Management and iv) strengthening investment in Information and Communication Technologies.
Environment: Eight Member States warned to implement WEEE and RoHS directives
The European Commission has sent a final warning (“reasoned opinion”) to the Member States that have still not implemented the Directive on Waste Electrical and Electronic Equipment (WEEE) into their national legislation. The Directive was adopted in 2002 to ensure that waste electrical and electronic equipment be collected, recycled and reused by means of imposing appropriate obligations on producers and importers of such equipment. Those provisions, including amendments adopted in 2003, were to be implemented into national law by 13 August 2004, which in turn was due to take effect on 13 August 2005. The Member States concerned are France, the United Kingdom, Italy, Finland, Greece, Estonia, Malta and Poland. France, the United Kingdom, Italy and Finland were also warned for failing to transpose the Directive on the Restriction of the use of certain Hazardous Substances in electrical and electronic equipment (the “RoHS” directive). If the Member States do not comply with their obligations within two months, the Commission may bring the matter before the European Court of Justice.
Environment: Commission Action Against Twelve Member States
The European Commission has sent twelve Member States a final warning (“reasoned opinion”) for failing to incorporate the Strategic Environmental Assessment Directive into national law. The Directive seeks to ensure that national decision-makers examine the environmental effects of plans and programmes before approving them, including plans on land use, road construction or waste management. The deadline for implementing national legislation was 21 July 2004. The Member States which failed to adopt appropriate measures are Austria, Belgium, Cyprus, Greece, Finland (concerning the province of Åland only), Italy, Luxembourg, Malta, Netherlands, Portugal, Slovakia and Spain. The legal action is part of a series of environment-related infringement procedures of the Commission against several Member States.
NEXT WEEK’S EVENTS
Monday 18 July – Friday 22 July 2005
General Affairs and External Relations Council (18 - 19 July 2005)
Agriculture and Fisheries Council (18 - 19 July 2005)
COURT OF JUSTICE
C-370/03 Greece v Commission
C-515/03 Eichsfelder Schlachtbetrieb
C-149/03 Commission v Belgium
Freedom of movement for persons
Social security for migrant workers
C-71/04 Xunta de Galicia
C-349/03 Commission v United Kingdom
COURT OF FIRST INSTANCE
No cases next week: Judicial vacation of the Court of First Instance from 18 July - 2 September 2005 inclusive