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Energy: Informal Agreement Reached on Energy Reform Package
The European Parliament has announced that an informal compromise position on the third energy reform package to liberalise the European Union’s gas and electricity markets has been negotiated by the Parliament Industry Committee and the Czech Presidency.
The result of their compromise is that European energy companies, such as France’s EDF and Germany’s RWE, will not have to sell their gas and electricity transmission networks, as previously suggested in the European Commission’s September 2007 reform proposals. In return, a series of concessions for energy consumers has been set out, including measures to give more freedom to switch suppliers, to install more accurate meters and to make a compensation scheme available if service quality levels are not met.
The Commission has welcomed the compromise, stating that opening the EU energy market would help to lower energy bills and allow wind farms and other clean energy producers better access to transmission grids.
If the compromise is to be adopted it will have to be endorsed by the Parliament's Industry Committee as well as representatives of the full Council (COREPER) by 31 March, before being tabled to a second reading plenary vote planned for the end of April. If approved by Parliament at the second reading, the Council is expected to formally adopt the package by the end of 2009.
Energy: Commission Confirms Sending Statement of Objections to Italian ENI Group
The European Commission has confirmed that it has sent a Statement of Objections to the Italian energy group ENI for alleged abuse of a dominant position in the management and operation of natural gas transmission pipelines from Austria (TAG pipeline) and Germany (TENP/Transitgas pipelines) to Italy. The Commission opened the investigation on its own initiative on 20 April 2007, following surprise inspections at ENI’s premises.
ENI's alleged abusive conduct consists of (i) the refusal to grant access to capacity available on the transport network (capacity hoarding), (ii) the granting of access in a less useful manner (capacity degradation) and (iii) strategic limitation of investment (strategic underinvestment) in ENI's international transmission pipeline system. According to the Commission, this conduct could exclude potential competitors in the Italian gas supply market, increasing dependence on ENI and its contracts with the upstream provider.
In February 2006, the Italian Competition Authority imposed a EUR 290 million fine on ENI for similar conduct concerning the Trans-Tunisian pipeline. This decision was partially annulled by the Rome Regional Administrative Tribunal and is now being appealed before the Italian Council of State.
Food & Beverage – Intellectual Property: Anheuser-Busch Prevented from Registering “Budweiser” as Community Trade Mark
The European Court of First Instance (CFI) has ruled that the American brewery Anheuser-Busch cannot register an EU-wide trade mark for its “Budweiser” brand because of the claim by Czech brewery Budějovický Budvar to the name in Germany and Austria.
In 1996, Anheuser-Busch applied to the Office for Harmonisation in the Internal Market (OHIM) to register the word “Budweiser” as a Community trademark for beer, ale, porter, and malted alcoholic and non-alcoholic beverages. Budějovický Budvar sought to block the application because it was already using the name in Germany and Austria for “beer of any kind”. Based on this fact, the OHIM rejected Anheuser-Busch’s application.
Anheuser-Busch subsequently brought an appeal before the CFI, which upheld the OHIM’s decision on the same grounds, stating that Budějovický Budvar was able to prove that it had been using the trade mark “Budweiser” for beer in Germany and Austria in the five years preceding Anheuser-Busch’s application for a Community trade mark.
With respect to malted non-alcoholic beverages, the CFI confirmed that these were also covered by Budějovický Budvar’s trade mark because “beer of any kind” by definition includes non-alcoholic beer. Allowing identical trade marks for two different products would have caused confusion among German and Austrian consumers who might mistakenly believe that malted non-alcoholic beverages sold by Anheuser-Busch under the trade mark “Budweiser” come from the same source as those sold by Budějovický Budvar.
For these reasons the CFI dismissed Anheuser-Busch’s action in its entirety.
Competition: Commission Adopts Report on Functioning of Insurance Block Exemption
The Insurance Block Exemption Regulation (BER) is due to expire on 31 March 2010. Ahead of this, the European Commission has submitted to the European Parliament and Council a report and working document that considers the functioning of the BER and suggests proposals for amendment.
According to the BER, certain agreements between insurance companies are exempt from the prohibition of restrictive business practices in Article 81, namely agreements on: (i) joint calculations, tables and studies; (ii) standard policy conditions and models on profits; (iii) common coverage of certain types of risks (i.e., insurance pools); and (iv) security devices and safety equipment.
In particular, the report promulgates that two forms of agreement, those in relation to joint calculations, tables and studies and co(re)insurance pools, are specific to the insurance sector and should continue to benefit from a block exemption. In contrast, agreements on standard policy conditions and those concerning security devices were not considered to be sector-specific and may not be renewed.
Before deciding whether to renew the BER or parts thereof, the Commission will hold a public event on 2 June 2009 where it will hear further representations on each category.
Intellectual Property: Commission Proposal to Create a Unified Patent Litigation System
The European Commission has proposed to the Council that a unified patent litigation system (UPLS) be established in the European Union. The proposal is to create a separate judicial body consisting of a decentralised court of first instance to ensure geographical and linguistic proximity, a single instance of appeal to ensure unity in case law and a role for the European Court of Justice in ensuring consistency with the rest of Community law.
At present, the granting of Europe-wide patent protection is provided for by the European Patent Convention. Patent enforcement, however, remains a matter of national competence and often compels patent holders to litigate simultaneously in multiple jurisdictions in cases where infringement has taken place in several EU Member States. This has a significant effect on the cost of litigation and entails a number of legal risks, notably managing the consequences of conflicting judgments in different countries regarding the same patent. It also affects the willingness and ability of patent-holders with limited resources (mainly small and medium-sized enterprises) to enforce their patent. The proposal for a UPLS would address these anomalies.
The Council now has to decide whether it will grant the Commission authorisation to open negotiations for adopting an agreement creating a UPLS.
NEXT WEEK’S EVENTS
Monday 30 March – Friday 3 April 2009
Transport, Telecommunications and Energy Council (TTE) – Transport (30 March 2009)
Transport, Telecommunications and Energy Council (TTE) – Telecommunications (31 March 2009)
COURT OF JUSTICE
Approximation of laws
C-83/08 Glückauf Brauerei
Area of Freedom, Security and Justice
C-134/08 Tyson Parketthandel
C-202/07 P France Télécom v Commission
C-260/07 Pedro IV Servicios
Convention on jurisdiction
Environment and consumers
C-373/07 P Mebrom v Commission
Free movement of goods
C-255/06 P-REV Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission
Joined Cases C-352/07, C-353/07, C-354/07, C-355/07, C-356/07, C-365/07, C-366/07, C-367/07, C-400/07 A. Menarini and Others
C-431/07 P Bouygues and Bouygues Télécom v Commission
C-415/07 Lodato & C.
C-416/07 Commission v Greece
C-385/07 P Duales System Deutschland v Commission
Joined Cases C-322/07 P, C-327/07 P, C-338/07 P Papierfabrik August Koehler v Commission
Freedom of movement for persons
C-269/07 Commission v Germany
Law governing the institutions
C-166/07 Parliament v Council
C-37/08 RCI Europe
COURT OF FIRST INSTANCE
Joined Cases T-379/05, T-118/06 Zuffa v OHMI (ULTIMATE FIGHTING)