On 6 October 2015, the Court of Justice of the European Union (“the Court” or “ECJ”) gave out its judgment in Case C-23/14 Post Danmark II on rebates. The judgment constitutes a recapitulation and systematisation of the Court’s previous case-law on this subject and it provides guidance to public enforcers as well as to dominant undertakings when designing their rebate schemes.
The judgment in Case C-67/14 Alimanovic came out on 15 September 2015. This case raises similar questions with Case C-333/13 Dano (blogged here). The Court of Justice (“CoJ”) made here another clarification regarding entitlement to “social assistance” under (the Citizenship) Directive 2004/38.
The Court of Justice (“the Court”) delivered its judgment on appeal in Case C-583/13 P Deutsche Bahn AG a.o. v European Commission, which deals with three important issues concerning the Commission’s powers of inspection in competition cases. These three issues, as defined by DB’s three pleas on appeal, refer to, first, the interpretation and application of the fundamental right to the inviolability of the home provided for in Articles 7 of the Chapter and Article 8 of the ECHR; second, the interpretation and application of the right to effective judicial protection provided for in Article 47 of the Chapter and Article 6(1) of the ECHR; and third, the rights of defence due to alleged irregularities vitiating the conduct of the first inspection.
In this post, we will look closer into the third issue, i.e. the required scope of the Commission’s inspection decisions. Continue reading
Another judgment of the Court of Justice on Article 263 (4) TFEU and what is a “regulatory act not entailing implementing measures”. And again, the Court held on 28 April 2015 in Case C-456/13 P T & L Sugars v Commission that the measure challenged was not “regulatory act not entailing implementing measures”. Does that judgment end the hopes of those who wished for a broader interpretation of Article 263 (4) TFEU and for a loosening of the rules on standing ?
After all, AG Cruz Villalòn was sympathetic to the idea in his Opinion of 14 October 2014 that the measures challenged were indeed “regulatory acts not entailing implementing measures” and advised that the action should be declared admissible.
The General Court has handed down a number of interesting judgments lately and we need to catch up after a blogging hiatus.
Let’s start with the judgment of 22 April 2015 in Case T‑320/09 Planet AE Anonymi Etairia Parochis Simvouleftikon Ipiresion v Commission, EU:T:2015:223, in which the Court annulled a series of decisions of the European Anti-Fraud Office (OLAF) requesting the applicant’s registration in the early warning system (‘EWS’) put in place to ostensibly protect the EU’s financial interests.
The interest of the case lies in the fact that the judgment is a sort of text book case of judicial review. The Court annulled the Commission decisions taken by OLAF on a number of grounds:
- the Commission had no powers to adopt the measures challenged,
- the Commission breached the fundamental rights of the applicant,
- the decisions were not properly reasoned.
The judgment of 23 April 2015 of the Court of Justice in Case C-376/13 Commission v Bulgaria EU:C:2015:266 sheds interesting light on when the Court considers that an infringement of EU law persists even after the Member State in question has amended its legislation to bring it into compliance.
Here’s some shameless self promotion !
Maria and I contributed to a terrific and rather unusual new book which is just out entitled “Horizontal Agreements and Cartels in EU Competition Law”, edited by good friends Frank Wijckmans and Filip Tuytschaever. The book is beautifully published by Oxford University Press.
Look at the publisher’s web page for more information.
The book is unusual, unique even, because each chapter is divided into two parts. A first part is written by a private practitioner and a second part is written by a public enforcer. In that way, the reader gets two different perspectives nourished by the experience of both.
Chapter 7, on judicial review, is written by Dirk Arts – he provides the practitioner’s perspective – and, yes ! Maria and myself, who provide the enforcer’s perspective. It will leave you breathless !
Here’s the table of contents:
1: Typology and Proof of Cartels
2: Detection of Cartels
3: Investigation of Cartels
4: Procedure Before the Commission
5: Public Sanctions
7: Judicial Review
8: Private Enforcement
9: Block Exemption Regulations R&D and Specialization
10: Other Horizontal Agreements (I): Joint Purchasing, Joint Selling, Standardization
11: Other Horizontal Agreements (II): Information Exchanges
Go out and buy it ! (All royalties are donated to charity).
Let’s get back to the judgment of the Court of Justice’s judgment of 19 March 2015 in Case C-286/13 P Dole Food Company and Dole Fresh Fruit Europe v Commission, EU:C:2015:184 and look at a couple of procedural points that came up. The post on an interesting substantive aspect is here.
The Court of Justice’s recent judgment of 26 March 2015 in Case C-596/13 P Commission v Moravia Gas Storage EU:C:2015:203 sets out – not for the first time – the principle according to which procedural rules in a new directive apply immediately to pending procedures.
Here’s what happened. Continue reading
There’s a lot in the Court of Justice’s judgment of 19 March 2015 in Case C-286/13 P Dole Food Company and Dole Fresh Fruit Europe v Commission, EU:C:2015:184. There are some neat procedural points, interesting things on the calculation of competition fines and quite a section on what constitutes a restriction of competition “by object”.
It will take several posts to cover all those points so I’ll just deal with the substantive, “restriction by object” point.
A while ago on 16 September 2014, Maria wrote a post on Case C- 67/13 P Groupement des cartes bancaires (“CB”) v European Commission. Many wondered whether that judgment would substantially change the understanding of restrictions of competition “by object” and “by effect”. A look at the Court’s judgment in Case C-286/13 P leads to the conclusion that rumours of a substantial change are either premature or unfounded.