EU-Competition Law in the Overseas: some recent French precedents

Parts of the territory of some EU-Member States are situated overseas. Does EU-Competition law apply there? Some recent French precedents answer this question. According to Art. 52 TEU the EU-treaties apply to the 27 Member States mentioned therefore. EU-law applies, in principle, to the whole territory of those Member States including the overseas parts of their territory. In Art. 355 TFEU, the territorial scope of the EU-treaties is further specified. There are more or less three ‘categories’ or ‘degrees’ of territorial scope with regard to the overseas (for a more extensive and general description see Kochenov’s article).

  1. First, the Outermost Regions, where EU-law applies, with the possibility for temporary exceptions to the acquis of the EU; although the term ‘temporary’ is perhaps not the right word, since the derogations are constantly extended. The Outermost Regions consist of the French départements d’outre-mer, the Spanish Canary Islands and the Portuguese Azores and Madeira.
  2. Secondly, the Overseas Countries and Territories (OCT) , where EU-law applies, with the possibility for more permanent exceptions to the acquis of the Union. On the OCTs a special regime of EU-law is applicable: the association regime (of Part IV of the TFEU). The OCTs are listed in Annex II to the TFEU and consist of Danish Greenland, the French territoires and collectivités d’outre-mer, the Caribbean part of the Netherlands and most of 12 British Overseas Territories.
  3. And thirdly, custom made regimes for specific parts of some Member States, such as the Channel Islands and Åland Islands. In addition some custom made regimes can be found in the accessions treaties, such as Gibraltar and the Spanish territories Ceuta and Mellila, which are situated on the African continent.

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Opinion of Advocate General Jääskinen in Case C-5/11 Donner

The case I wish to highlight in this post is the Opinion of Advocate General Jääskinen in Case C-5/11 Donner, concerning a rather crafty and ingenious attempt by Mr. Donner to circumvent the application of certain German copyright laws. Mr. Donner sold various types of ‘Bauhaus’ furniture which was protected by German copyright, but not protected by Italian copyright. Although Mr Donner targeted German customers through advertisements in Germany and a website in German, he sold these products not in Germany but from a warehouse in Italy through cooperation with an Italian company called Dimensione. Those products could nonetheless be delivered optionally to German customers by the Italian company Imspem (owned by Mr. Donner).

One of the questions the Advocate General answers in this case is whether the conduct of Mr. Donner leads to ‘distribution to the public’, that is the German public, within the meaning of the Copyright Directive. Mr. Donner, of course, considers that these products were distributed to the public in Italy, not in Germany. The Copyright Directive provides in Article 4(1) that ‘Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise’. The Advocate General considers that the products were distributed to the public in Germany:

55.      In the situation of cross border distance selling arrangements, the assessment of whether copies are made available to the public in the Member State where enforcement of copyright is sought must be based on the criteria elaborated by the Court in L’Oréal and Others. (38) If a seller targets consumers in a given Member State and creates or makes available to them a specific delivery arrangement and method of payment that enables consumers to purchase copies of copyright protected works in that Member State, then there is distribution by sale in that Member State. (39) The existence of a German language website, the content of Dimensione’s marketing material, and their sustained cooperation with Inspem, as an undertaking engaged in sales and delivery to Germany, all point toward a targeted exercise. What is important is whether the seller has created a targeted sales and delivery channel for buyers to acquire works that are copyright protected in the buyer’s Member State.

56.      In this respect the way the delivery of the copies is organised is of secondary importance. There is distribution by sale from Member State A to the targeted public in Member State B even if under the distribution scheme the copies of the works are delivered by mail or a distribution service. But the extent of the involvement of the carrier in the selling arrangement affects the question whether the carrier is to be considered as a participant in the distribution scheme or merely an intermediary referred to in Article 8(3) of the Copyright Directive, (40) whose services are used by a third party. Such an intermediary may be made subject to injunctions, but not to sanctions under Article 8(1) of the Copyright Directive and the corresponding provision in Article 11 of the Enforcement Directive.

Post Danmark: does the ECJ take the effects based approach further than a mere price/cost-test and does it oblige the national judge to apply that effects based approach ex nunc?

In a grand chamber judgment in case C‑209/10, Post Danmark, the European Court of Justice (ECJ) handed down a preliminary ruling on the interpretation of abuse of a dominant position (Art. 102 TFEU). The case was referred to the ECJ by a Danish judge in a dispute between Post Danmark and Konkurrencerådet, the Danish competition authority.

I have three remarks concerning this judgment:

  • first, it seems to me that the ECJ does not embrace the average incremental costs instead of average variable costs as the relevant economic parameter for analysing a per se abuse;
  • secondly, the ECJ requires the Danish judge to apply the as-efficient-competitor-test and seems to take it further than a mere price/cost-test to decide on the question whether the pricing practices of Post Danmark were anti-competitive in effect; he must take into account all relevant circumstances;
  • lastly, when the Danish judge takes into account all those circumstances, it seems that the ECJ prescribes an ex nunc appreciation, which might be a restriction of procedural autonomy.

In the Danish market for the distribution of unaddressed mail (direct mail of brochures, guides, newspapers, etc.) the two largest players are Post Danmark and Forbruger-Kontakt (FK). This market is fully liberalised. Next to that, Post Danmark is the universal postal service provider. It uses its distribution network for both the universal postal service and the distribution of unaddressed mail. In 2003, in the Danish market for the distribution of unaddressed mail Post Danmark had a market share of 44 % which increased to 55 % in 2004. According to the Danish competition authority Post Danmark held a dominant position in that market because of such high market shares and because it could maintain its distribution network covering the whole country because of it being the universal postal service provider, regardless of its activities on the market for unaddressed mail.
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Horizontal direct effect of article 34 TFEU?

In her recent Opinion in case C-171/11 Fra.bo SpA v. Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW), Advocate General Trstenjak has broken a lance for horizontal direct effect of article 34 TFEU. Until now, the Court has always denied horizontal direct effect of the free movement of goods provisions, in contrast to the other fundamental freedoms.

In her reasoning she uses the analogy of the application of horizontal direct effect to justify the extension of the free movement of goods rules to apply to private persons. The case concerned the refusal by a German private organisation DVGW to certify the brass sockets produced by the Italian company Fra.bo. If certified by DVGW, German legislation would presume that the brass sockets were in conformity with its legislation and usable in German water supply.

Instead of interpreting the concept of public body in such a broad way as to include DVGW, the Advocate General choose to apply the Bosman,Viking and Laval cases by analogy, arguing that “rules of any other nature aimed at regulating in a collective manner gainful employment, self-employment and the provision of services” should also be extended to the case at hand and the free movement of goods.

This was so because DVGW had, in fact, legislative cometence:

 42.      Compte tenu de cette compétence de fait dont disposent DVGW et sa filiale à 100 % pour déterminer quels produits pour le montage, l’extension, la modification ou l’entretien d’installations d’eau potable situées après le point de raccordement du bâtiment ont des chances de se vendre sur le marché allemand et, donc, peuvent être commercialisés, leur activité de normalisation et de certification ne peut pas être exclue du champ d’application de la libre circulation des marchandises.

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Brussels I and public notice under national law

The case of G/Cornelius de Visser (C-292/10) resembles the Lindner case (C-327/10), on which we reported earlier. The case involves numerous issues, some of which will be dealt with in this post. The factual background of the case simply cannot pass unmentioned. A German girl, Ms G, approached the owner (Mr de Visser) of the domain name www.****.de (I call upon the reader’s imagination here) to show her interest in having photographs taken of herself (their intended use being ‘für eine Party’). The photographs were duly made in Germany and Ms G agreed that they would be published. However, her consent was strictly limited to the pictures being used ‘for a party’, and did not include widespread distribution online.

Taunted by co-workers as she was (according to the judgment she was ‘shown the photographs (…) by work colleagues’), she initiated proceedings in Germany against De Visser. Mr de Visser was registered as owner of the domain with an address in Terneuzen and a postal address in Venlo (both in the Netherlands). It had not, however, been possible to effect service at those addresses in the Netherlands, since both letters were returned marked ‘Unknown at this address’. The Consulate of the Netherlands in Munich stated, on request, that Mr de Visser was not listed in any population register in the Netherlands. To sum up, as was the case in Lindner, the defendant was nowhere to be found. Since both the Hague Convention on the service of documents 1965 and the EU Service Regulation are inapplicable in the case of a defendant with unknown address, the German judge resorted to public notice of the document under German procedural law. This was done by affixing a notice of that service to the bulletin board of the Landgericht Regensburg from 11 February to 15 March 2010. Could this be deemed in conformity with Article 6 ECHR and Article 47 Charter of Fundamental Rights of the EU? The Court held:Continue reading

Cases C-162/10 Phonographic Performance (Ireland) Limited (PPL), and C-135/10 Società Consortile Fonografici (SCF)

Last week, the ECJ released two judgments regarding the issue of copyrights on music broadcasts. According to EU law (specifically, Directive 2006/115), artists have a right to remuneration when recordings of their work are communicated to the public. But what exactly does ‘communication to the public’ entail?

In the PPL case, an Irish court asked the ECJ for a preliminary ruling to clarify whether ‘communication to the public’ includes broadcasts by a hotel to guests in hotel bedrooms, and whether Ireland was therefore in violation of European law when it exempted hotels from paying remuneration for these broadcasts. In the SCF case, an Italian court asked the ECJ to clarify whether ‘communication to the public’ includes background music played by a dentist in a dental practice.

The Court held that determining whether the hotel’s or the dentist’s broadcasts were ‘communication to the public’ would require an individual, case-specific analysis focused on three overlapping factors:

  • the role of the user, which engages in ‘communication’ when it intervenes to give access to a protected work
  • the concept of the public, which refers to an “indeterminate number of potential listeners” and “implies a fairly large number of persons”
  • whether the communication is of a profit-making nature, as judged by whether the user benefits, whether the user targets the public, and whether the public is receptive in some way, rather than merely listening by chance

While both the hotel and the dentist were ‘users’ engaging in communication, the ECJ found that the two situations differed with respect to the second and third criteria. The hotel’s customers were a ‘public’ because they were of ‘indeterminate number’ and were ‘a fairly large number of persons’ (PPL, paras. 41-42). The dentist’s clients, on the other hand, were not a ‘public’ because they formed a consistent, determinate group, and because only a small number would be present in the office listening to the broadcast at the same time (SCF, paras. 95-96). Similarly, the hotel’s broadcast was of a ‘profit-making nature’ because it was “an additional service which has an influence on the hotel’s standing and, therefore, on the price of its rooms” and “is likely to attract additional guests who are interested in that additional service” (PPL, para. 44). The dentist’s broadcast, on the other hand, was not of a ‘profit-making nature’ because the dentist “cannot reasonably either expect a rise in the number of patients because of that broadcast alone or increase the price of the treatment he provides” and because the patients are not ‘receptive’, but rather listen to the music merely by chance (SCF, paras. 97-98).

As a result, the dentist is not making a ‘communication to the public’ and is not required to pay remuneration. The hotel, however, is making such a communication, and is required to pay remuneration. According to the ECJ, therefore, Ireland should not have exempted hotels from this requirement.

AG Bot in P.I. (Case C-348/09): Committing a crime disqualifies EU Citizens from permanent residence

In his Opinion in the P.I. case delivered on March 6 this year, AG Bot came up with a curious reading of ‘integration into society’ when dealing with a potential expulsion of an EU citizen who is a permanent resident. In the view of the learned AG committing a crime ‘shows a total lack of desire to integrate into society’ (para. 60), disqualifying the criminal from protection against expulsion (para. 49). This curious reasoning potentially deprives the status of permanent residence under directive 2004/38/EC of much of identifiable meaning.

The Citizenship directive (directive 2004/38/EC) regulates the conditions under which nationals of a Member State can move to and reside freely within the territory of the Member States. In short, the directive introduces a system in which the longer you live in another Member State, the more rights you have. For the Court, the length of residence is proof of a certain level of integration into the society of the host Member State (see for instance case C-158/07 Jacqueline Förster).

Expulsion, for example, is almost impossible after 10 years of prior legal residence. Article 28(3)(a) provides that an expulsion decision may only be taken against Union citizens legally resident for a period of 10 years on ‘imperative grounds of public security, as defined by Member States’. From Tsakouridis (C-145/09) we already know that dealing in drugs can provide such an ‘imperative ground of public security’. But what if we are dealing with the rape of a step-daughter? The issue of the case in P.I basically comes down to the need for the Court to clarify when EU citizen permanent residents can be sent back to their Member State of nationality, which, in turn, necessitates answering the question about the meaning of the ‘imperative grounds of public security’.

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Copyright for football league fixture lists?

Here is a nice judgment of the Court for football fans. Have you ever wondered why English  Premier League match fixtures on the internet are made unavailable while other fixtures are? The reason is that the FA and Football Dataco think these fixture lists are protected by copyright. For some of us that does not seem to make any sense: especially on the continent copyright is a property right rewarded because of creativity, not managing an agenda (no matter how difficult and laborous that can be). Football Dataco and the FA thought otherwise, emphasizing the very significant labour and skill that went into creating match fixtures for football matches in England and Scotland.

The FA and Football Dataco  got into a legal battle with Yahoo and other companies over this. The Court of Appeal subsequently referred the case to the Court to ask whether article 3(1) of the Copyright Directive (Directive 96/9/EC) granted copyright to the creators of annual match fixtures. The Court answered that ‘no other criteria than that of the originality is to be applied to determine the eligibility of a database for copyright protection’:

41      Therefore, on the one hand, provided that the selection or arrangement of the data ­– namely, in a case such as the one in the main proceedings, data corresponding to the date, the time and the identity of teams relating to the different fixtures of the league concerned (see paragraph 26 of the present judgment) ­– is an original expression of the creativity of the author of the database, it is irrelevant for the purpose of assessing the eligibility of the database for the copyright protection provided for by Directive 96/9 whether or not that selection or arrangement includes ‘adding important significance’ to that data, as mentioned in section (b) of the referring court’s first question.

42      On the other hand, the fact that the setting up of the database required, irrespective of the creation of the data which it contains, significant labour and skill of its author, as mentioned in section (c) of that same question, cannot as such justify the protection of it by copyright under Directive 96/9, if that labour and that skill do not express any originality in the selection or arrangement of that data.

Consequently:

–        the intellectual effort and skill of creating that data are not relevant in order to assess the eligibility of that database for protection by that right;

–        it is irrelevant, for that purpose, whether or not the selection or arrangement of that data includes the addition of important significance to that data, and

–        the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.

It is now up to the Court of Appeal to determine whether creating annual match fixtures is an original expression of the creativity of Football Dataco or not.

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