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ECJ: Advocate General Recommends Dismissal of Germany’s Action Against Tobacco Advertising Directive
Contact Philip Bentley QC
The Advocate General has recommended that the European Court of Justice (ECJ) should dismiss the action brought by Germany seeking partial annulment of the Tobacco Advertising Directive. The Directive bans tobacco advertising in the print media, on the radio, over the internet and at international sports events in Europe. Germany has challenged the legal basis for the Directive, Article 95 EC, which allows the Community to adopt measures for the approximation of national provisions which have as their object the establishment of the internal market. The Advocate General observed that differences between national rules create obstacles to the free movement of goods and services and preclude the circulation between Member States of radio and electronic programmes containing such advertising. Such obstacles justify the choice of legal basis for the Directive and therefore the ECJ should dismiss the action brought by Germany.
Internal Market: Call for Evidence on Transparency in Bond Markets and Other Non-Equity Markets
The European Commission has launched a call for evidence on transparency in bond and other non-equity markets. The Commission is investigating whether it would be appropriate to impose any pre- or post-trade transparency provisions for markets in financial instruments other than shares. The Commission’s call for evidence specifies that in conducting its review, the Commission intends to prioritise cash bond markets as well as related derivatives markets and other markets such as those for asset-backed securities. In particular, the call for evidence asks whether there are demonstrable problems in any of these markets that might be solved by mandatory transparency. All interested stakeholders, including industry and individuals, may send their replies by 15 September 2006. The Commission will then present a report to the European Parliament and Council by the end of October 2007.
ECJ: State Liability for Manifest Infringement of Community Law by a Supreme Court
On a referral by an Italian court, the European Court of Justice (ECJ) has further explained Community law on a Member State’s liability for the acts of its courts. Italian legislation provides that the State can be liable for the acts of a court only if it is guilty of intentional fault or serious misconduct, but that in no circumstances can there be liability arising out of the court’s interpretation of the law or assessment of the facts and evidence. The ECJ ruled that the exclusion of state liability in matters of legal interpretation or assessment of the facts and evidence could not be applied to cases where a court adjudicating at last instance had manifestly infringed Community law. The ECJ also ruled that limitation of state liability solely to cases of intentional fault or serious misconduct on the part of the national court could not be applied so as to exclude liability for a manifest infringement of Community law in the sense of the ECJ’s judgment in Case C-224/01, Köbler.
State Aid: German Bio-Diesel Producer Ineligible for SME Bonus
The European Commission has concluded that Nordbrandenburger UmesterungsWerke & Co. KG (NUW), a bio-diesel producer, does not qualify for State aid reserved for small and medium-sized enterprises (SMEs). Germany intended to grant NUW an aid package that included a bonus reserved for SMEs, subject to Commission approval. The Commission’s investigation, however, revealed that NUW’s majority shareholder holds shares in several companies owned by family members. Since these companies are active at different levels of the same markets as NUW, the Commission found that they could act as an integrated unit. Moreover, as a whole, the companies’ turnover and employee data exceed the thresholds set forth in Community rules defining SMEs (Commission Recommendation 2003/361/EC). In view of these facts, the Commission concluded that NUW is ineligible to receive an SME bonus.
Mergers: Commission Approves Acquisition of Athlon by De Lage Landen
The European Commission has cleared the proposed acquisition of sole control of Athlon by De Lage Landen. Athlon is an international provider of car leasing and car body repairs. De Lage Landen is an international provider of asset finance and vendor finance programmes and a wholly owned subsidiary of Rabobank, a Dutch cooperative banking organisation. Although the parties’ activities overlap in the Dutch market for fleet leasing and management services, the Commission concluded that the proposed transaction would not give rise to any significant reduction of competition in the European Economic Area. In reaching its decision the Commission considered the high number of actual or potential competitors active in the relevant market and the small combined market share arising from the transaction.
Air Transport: EU-Singapore Aviation Agreement
The European Union and Singapore have signed an agreement eliminating the nationality restrictions contained in existing bilateral aviation agreements between the individual EU Member States and Singapore. The new agreement reflects the view that the EU must now be considered and treated as one block by the international aviation community. In practice, this means that EU airlines will be able to operate flights between any EU Member State and Singapore. Singapore is the first country in Asia to sign such a “horizontal” aviation agreement with the EU. Similar aviation agreements have already been signed with Chile, Ukraine, Georgia, and several Balkan countries, and more agreements are expected to follow in the coming months.
Fisheries: New Fisheries Partnership Agreement
The European Union and Greenland have reached a new Fisheries Partnership Agreement (FPA) for a period of six years beginning on 1 January 2007. The new FPA will replace the current agreement, which has been in force since 1985. The FPA reduces fishing opportunities for the EU of several species in Greenland waters. Part of the fishing quota will go to the EU fleet and another part will be used for exchange of quotas with third countries to balance EU fisheries agreements in the North Atlantic. In exchange for fishery rights, the EU will pay a contribution of EUR 15,847,244 in addition to over EUR 2,000,000 in licence fees from fishing vessel operators.
Mergers: Commission Clears Joint Venture in Laminate Floorings Market
The European Commission has given the green light to the creation of a joint venture between Sonae Indùstria and Tarkett. Sonae Indùstria belongs to the Portuguese conglomerate group Sonae, and is active in several markets such as chemicals, wood-based panels and other wood-based products. Tarkett is a German company producing and distributing various floor coverings. The parties will contribute their laminate flooring production and sales departments to the joint venture, based in Germany and Luxembourg respectively. The Commission's examination of the case showed that the operation would not have any anti-competitive effects, because the new entity will face competition from strong players with significant market shares.
Internal Market: Consultations on ‘CE’ Product Marking
Philip Bentley QC
The European Commission has launched public consultations on the simplification of the technical harmonisation of product standards. The main issues raised are: (i) providing efficient options for a manufacturer to demonstrate that a product conforms to legal requirements; (ii) reinforcing the quality of conformity assessment bodies and strengthening the procedures for their accreditation; (iii) ensuring that the ‘CE’ mark, by which the manufacturer declares that the product conforms to the applicable standards, is clearly understood and better protected; and (iv) monitoring to ensure compliance. After the consultation, the Commission plans to finalise its legislative proposal by the end of 2006.
NEXT WEEK’S EVENTS
Monday 19 June – Friday 23 June 2006
Agriculture and Fisheries Council (19 – 20 June 2006)
COURT OF JUSTICE
C-419/04 Conseil général de la Vienne
C-24/05 P Storck v Office for Harmonisation in the Internal Market
C-25/05 P Storck v Office for Harmonisation in the Internal Market
Joined Cases C-182/03, C-217/03 Belgium v Commission
C-399/03 Commission v Council
Environment and consumers
C-216/05 Commission v Ireland
Freedom to provide services
C-345/04 Centro Equestro da Leziria Grande
Law governing the institutions
C-266/05 P Sison v Council
COURT OF FIRST INSTANCE
T-251/04 Greece v Commission
T-47/02 Danzer v Council