T-119/09: GC backs broad Commission discretion not to pursue antitrust cases in absence of “Community interest”

In its Judgment of 13 September 2012 in case T‑119/09 Protégé International Ltd v European Commission and Pernod Ricard SA, the General Court has backed the Commission’s decision not to pursue a complaint filed by Protégé International Ltd regarding a potential abuse of a dominant position by Pernod Ricard SA in the whisky market, in view of the absence of a sufficient “Community interest” [Decision C (2009) 505 (Case COMP/39414 – International Protégé / Pernod Ricard)].

The GC basically restates the prexisting case law of the CJEU on the Commission’s discretion to pursue or drop cases in view of their “Community interest” and extends it to the post-Regulation 1/2003 enforcement scenario (as expressly mentioned in Recital 18 of that Regulation). Most importantly, the GC expressly shows certain judicial deference towards the Commission’s assessment of the existence (or lack of) “Community interest”, which review will be limited to check that the Commission’s assessment guaranteees that the facts have been accurately stated and that there has been no manifest error or appraisal or misuse of power (on such “marginal review”, see the key contribution by M Jaeger, “Standard of review in Competition Cases Involving Complex Economic Assessments: Towards the Margnialisation of the Marginal Review?” (2011) J of Eur Comp Law & Practice 2(4):295-314].

Continue reading

Case C‑83/11: Secretary of State for the Home Department v Muhammad Sazzadur Rahman and others

This period around the end of summer breaks is probably a busy time for everyone, so I will keep it short; as always, readers of this blog are very much welcome to point out and discuss some points in more detail in the comments if so desired. In this case, the Court was asked about the content of the obligation to ‘facilitate’, in accordance with national legislation, entry and residence for ‘any other family members’ (set out in Article 3(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely) who are dependants of a Union citizen. For this wider circle of ‘other family members’ (as opposed to the narrow circle of family members set out in Article 2 (2) of the Directive), Member States enjoy a broader margin of discretion and do not have to grant an ‘automatic’ right of entry and residence (para 20). The Court also clarified some matters on the situation of dependence that must be given for such a family member under Article 3 (2), but I’ll focus on the first point for the purpose of this post. Continue reading

Boat refugees, the democratic deficit and EU constitutional law

Not many EU lawyers get excited when it comes to comitology, but with Case C-355/10 Parliament v. Council we have every reason to. Not only is the case materially interesting – it concerns operations of EU Member States against illegal immigration and boat refugees – it is also of fundamental constitutional importance because the CJEU ruled that provisions which require ‘political’ choices cannot be delegated by the EU legislature and, what is more, this assessment is amenable for judicial review. In my opinion, this judgment can be seen as an attempt by the Court to address one of the ‘democratic deficit’ problems of the EU, namely excessive regulation at comitology level, by putting clear limits on delegation of legislative powers by the EU institutions. It is also a victory for the Parliament, an institution that has always felt uneasy about comitology.

Continue reading

Typo in the TFEU

I wanted to share something with our readers, I thought it would be fun to write about a random discovery I made in the Treaty on the Functioning of the European Union. There is a typo in the English version of the Treaty. Remarkable, but true. I thought they would check the thing a number of times before sending it to the presses, but nonetheless article 28 (2) TFEU as available on the eur-lex website is translated incorrectly.

Continue reading

One rule to rule them all: the report on Rome I and voluntary assignment

As was pointed out in an earlier post, the Commission report under Article 27(2) Rome I Regulation (Regulation (EC) 593/2008 on the law applicable to contractual obligations) will be based on a recent study by the BIICL titled “Study on the question of effectiveness of an assignment or subrogation of a claim against third parties and the priority of the assigned or subrogated claim over a right of another person”. Although the title is a bit misleading (as the study itself indicates, the study deals not with the effectiveness but with the law applicable to the effectiveness of an assignment or subrogation of a claim against third parties and to priority issues), this is a thorough and excellent study. The report consists of a collection of statistical data, an EU-wide empirical analysis, national reports from twelve Member States and a comprehensive analysis of the question of whether it would be desirable to amend Art. 14 Rome I Regulation to include the third-party aspects of assignment.

The results of the questionnaire show that a vast majority of stakeholders who addressed this particular issue indicated that a uniform EU solution would be of positive impact to their business. Reduction of legal costs and due diligence, increased legal certainty and higher transaction volumes are regarded as positive effects of the introduction of a uniform rule on the property aspects of an assignment. In view of this, it seems highly unlikely that those who argue in favour of preserving the status quo (the description of which can be found in the earlier post) will win the day. The maxim ‘any rule is better than no rule at all’ wins at the expense of the principle ‘no rule better than a bad rule’. In other words,  legal certainty is a commodity to be valued in itself and there is a general need for a rule that covers all proprietary aspects of assignment. Which rule will it be?

Continue reading

C-337/09 P Zhejiang Xinan Chemical Industrial Group (Xinanchem)

One of the most interesting and complex issues in international trade over the past decade has been how to deal with the opening Chinese market. As China has become more integrated into international markets and has joined the WTO, its trading partners have sometimes struggled with the non-market aspects of its economy. Industries hard hit by Chinese competition have argued that Chinese interference with its internal market and support for domestic companies amount to unfair trading practices, and that they should consequently be compensated or controlled. Regulators have had sympathy for these concerns, applying trade remedies like countervailing measures and anti-dumping duties to Chinese products. However, this practice has led to counter-accusations of protectionism and discrimination. The recent spate of complaints both by and against China in the WTO is evidence of this struggle.

Last week’s Xinanchem judgment, however, is a significant step along the path toward normalized trade relations between China and the EU. In this case, which Advocate General Kokott called “of fundamental importance for future trade relations between the European Union and a number of dynamic emerging countries, such as the People’s Republic of China” (AG para. 1), the Grand Chamber of the ECJ dismissed the Council’s appeal of a General Court judgment in favor of the Chinese company.

Continue reading

Introducing a new category of posts: Readings we particularly enjoyed, or put differently Pas obligatoire, mais fortement recommandé (POMFR)

On one of these random internet-research expeditions probably many of us do while we would have lots of better and more urgent things to do I discovered JOTWELL. The basic idea (see their ‘Mission Statement’ here) of this Journal of Things We Like (Lots) is that in today’s world of legal mass production/publication, it becomes increasingly difficult to stay on top of things. While people are generally able to keep abreast with their field, they find it difficult to judge what is worth reading in neighbouring fields or at a more general level. JOTWELL should thus close this lacuna in US law by providing information as to what is ‘new, important, and interesting in most areas of the law’.

The project of founding a veritable journal for this purpose as these US scholars have done may be beyond the reach of this blog. Still, the underlying idea of creating space for sharing readings merits further consideration. This is what the new category of blog posts on ‘pas obligatoire mais fortement recommandé/POMFR’ is going to be about.Continue reading

VALE: a never ending story on free movement of companies within the EU finally ended?

On 12 July 2012 the European Court of Justice (ECJ) ruled in the VALE case (C-378/10) that

“Articles 49 TFEU and 54 TFEU are to be interpreted as precluding national legislation which enables companies established under national law to convert, but does not allow, in a general manner, companies governed by the law of another Member State to convert to companies governed by national law by incorporating such a company.”

The case concerned a cross-border conversion of a company established under Italian law, VALE Construzioni Srl, into a company incorporated under Hungarian law, VALE Építési kft. Under Italian law it is possible for a company to convert into a company established under foreign law. Under Hungarian law only companies incorporated under the law of Hungary are allowed to convert. The VALE case is the ‘mirror image’ of the Cartesio case (C-210/06) which concerns a transfer of a registered office of a company under Hungarian law to Italy without a conversion. In the Vale case the Court stated that a Member State may restrict a company governed by its law to retain the status of the company established under the law of that Member State if the company intends to move its seat to another Member State, thereby breaking the connecting factor required under the national law of the Member State of incorporation. However, the Member State of origin of that company cannot prevent a company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so.

Continue reading

X