Allianz and the Object-Effect Dichotomy in Article 101(1) TFEU: A Practical Solution Meets Not So Practical Competition Law

Two separate insurance companies Allianz and Generali concluded a number of contracts with autorepair shops on the prices and other conditions that would apply for cars insured by these companies repaired by those shops. Moreover, Allianz and Generali also concluded similar contracts with the dealers who operated car repair shops. Finally, they concluded similar agreements with the association of car dealers. In this category of agreement, the prices for car repairs would increase with the number of insurances sold by the dealers. Allianz and Generali, therefore sought to link the number of insurances sold by the dealers to the remuneration for car repairs. This is obviously designed to increase or at least consolidate the market share of Allianz and Generali on the market for car insurances. Apart from this business strategy, the idea behind these agreements was that auto repair shops could start repairing immediately on the basis of the predetermined tariffs, something that is clearly a practical solution to get people back on the road as quickly as possible.

The Hungarian Competition Authority (referred to in the judgment as GVH; HCA hereafter), however, considered these agreements to restrict competition by object on the market for car insurance contracts and the market for car repair services within the meaning of the Hungarian equivalent of Article 101 TFEU. As it happens, this provision closely mimics Article 101 TFEU, in line with the trend towards a spontaneous harmonisation of competition law throughout the EU (see the preamble and explanatory memorandum to the Hungarian competition act referred to in paragraphs 3 and 5 of the judgement). Because the HCA considered that there was no effect on trade, Article 101 TFEU was not applied by the national competition authority. The prohibition decision issued by the HCA was challenged by Allianz, in particular on the grounds that the agreement did not restrict competition by object. the decision by the HCA was partially reversed and then restored upon appeal, against which Allianz appealed to the Hungarian Supreme Court. The Supreme Court then made a preliminary reference essentially asking whether the agreements at hand fall within the object category.

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Walking the Data Protection Tightrope: The Google Privacy Policy Investigations

On 2 April 2013, Data Protection Authorities (DPAs) in six EU Member States (France, Germany, Italy, the Netherlands, Spain and the United Kingdom) announced the launch of an official investigation regarding the compliance of Google’s revamped privacy policy with national data protection rules.

This announcement came over one year after the EU’s advisory body on data protection – the Article 29 Working Party – first contacted Google regarding the changes to its privacy policy which came into force on 1 March 2012. Since this first contact, Google formally responded to two questionnaires sent on behalf of the Article 29 Working Party and based on its responses, the Working Party sent Google a letter attaching its main findings and recommendations in October of last year.

Google’s new privacy policy effectively merges the individual privacy policies which were previously in place for Google services. Therefore, rather than having separate privacy policies for services such as Gmail, Google +, Google Maps and YouTube, users of Google services can now access one comprehensive document outlining Google’s privacy policy for all services. ‘Sounds wonderful’ you may be thinking: however, not so, according to national DPAs in the EU. This amalgamated privacy policy may be problematic from a data protection perspective for two (overlapping) reasons: its alleged lack of transparency and the data pooling it facilitates.Continue reading

General Court rulings on Iranian Banks threaten to torpedo EU’s foreign policy ambitions

In a series of recent judgments, the Fourth Chamber of the General Court of the European Union (“the General Court”) annulled the designation of some of the largest privately held commercial Iranian banks on the EU’s sanctions list. On 11 December 2012, sanctions against Sina Bank (Case T-15/11 Sina Bank v. Council) were annulled. Similarly, sanctions against Bank Mellat (Case T-496/10 Bank Mellat v. Council) were struck down on 29 January 2013. On 5 February, sanctions targeting Bank Saderat (Case T-494/10 Bank Saderat Iran v. Council) met the same fate, further illustrating the General Court’s willingness to annul sanctions if their adoption is not based on sufficient evidence and if the entity concerned is not given ample time to review and respond to the evidence against it.

The EU has significantly tightened its sanctions regime against Iran over the last two years in order to end the proliferation of sensitive nuclear activities and to halt the program the Western world fears is aimed at creating a nuclear bomb. To date, some 30 cases concerning EU sanctions against Iran are still pending before the General Court which include applications by the Central Bank of Iran and the National Iranian Oil Company.

Below, I discuss the Bank Mallat and Bank Saderat judgments before reflecting on the potential implications – if any – of the recent Opinion in Kadi II and the possible ramifications of the cases on the EU’s foreign policy agenda.Continue reading

Leth: Court Rules Out Francovich Claim on the Basis of the Environmental Impact Assessment Directive

The facts of the Leth case are relatively simple. Ms. Leth bought a house close to Vienna-Schwechat Airport. However, following her purchase of that property, several works were carried out on the airport, most probably increasing the use and thus noise it produced. Probably much to miss Leth’s disliking, it further turned out that many of these works were carried out without any environmental impact assessment. The reason for this absence of an environmental impact assessment was a belief on the part of the Austrian authorities that no such assessment was necessary on the basis of the national laws implementing the Environmental Impact Assessment Directive (Currently codified in the EIA Directive). This is a widely held belief on the part of authorities that prefer executive action over cumbersome procedures that are time-consuming and costly. However, often this belief is the result more of a desired outcome than a correct interpretation of the EIA Directive, making this one of the most frequently invoked directives in EU environmental law. Indeed, significant aspects of direct effect have been established and refined on the basis of cases turning on the EIA Directive (think of Kraaijeveld and Wells).

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The irony of the international relations exception in the transparency Regulation

If one thing resorts clearly from the ACTA saga, it is that the atmosphere of secrecy in which ACTA was negotiated (required allegedly to enable mutual trust between the parties in the negotiations) completely backfired and deteriorated trust in the European Commission by European citizens and the European Parliament, resulting in ACTA’s ultimate demise. In a case decided yesterday by the General Court this tension between secrecy needed for the effective conduct of negotiations and the right of citizens to be informed was readily apparent in determining whether the Commission was acting lawfully in its decision to refuse access to documents related to those negotiations to European Member of Parliament Sophie in ‘t Veld.

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Court of Justice rejects Switzerland’s appeal concerning Zurich airport

After an Odyssey of nearly 10 years, the legal proceedings of Switzerland against German restrictions on flights to and from Zurich airport have come to an end:  The CJEU, in its judgement delivered on 7 March 2013 (Case C‑547/10 P), has rejected Switzerland’s appeal against the judgment of the General Court of 9 September 2010 (Case T‑319/05), by which the General Court had rejected Switzerland‘s action for annulment against Commission Decision 2004/12/EC of 5 December 2003 (OJ 2004 L 4, p. 13), thus allowing Germany to continue to apply unilateral restrictions on flights to and from Zurich airport over German territory.

Beyond its undoubtedly grave consequences for the airport of Zurich and all other affected stakeholders, the case was also particularly interesting from the point of view of Swiss-EU relations in general: As Advocate General Jääskinen pointed out in his Opinion delivered on 13 September 2012, this is the first time Switzerland initiated an action for annulment before the EU judiciary. Unfortunately, like the General Court before, the CJEU did not take the opportunity to assess the legal consequences of the Swiss-EU Agreements on the procedural status of Switzerland before the CJEU.Continue reading

Sturgeon again, Grand Chamber rules on compensation for delayed flights in Folkerts

Here’s another Court judgment on the infamous (or clarifying, depending on your perspective) Court ruling in Sturgeon. Last November, we reported on the ruling in the joined cases Nelson (C-581/10) and TUI Travel (C-629/10), in which the Court confirmed the judgment in Sturgeon. The Court held that Airline Passengers have the right to the fixed monetary compensation under Article 7(1) of Regulation 261/2004 (the Regulation) in case of a delay of three hours or more. This time, it’s about the question at which stage of the carriage the delay must occur. For the purpose of entitlement to compensation under Article 7(1), is the length of the delay in reaching the final destination alone determinant? Or does entitlement to compensation for such a delay additionally requires that the conditions set out in Article 6(1) of the regulation be met, that is to say, that the departure of the flight in question was already delayed beyond the limits set out in Article 6(1)? If not, for the purpose of determining whether there was a delay, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination?

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Casting the net of fundamental rights protection: C-617/10 Åkerberg Fransson

Today’s decision by the Grand Chamber in C-617/10 Åkerberg Fransson is a landmark decision on the scope of the Charter of Fundamental Rights, EU constitutional law, and the relationship between national and EU law in general. As I explained in an earlier post, it was not clear, until today, whether the Charter had the same scope of fundamental rights protection as under the ‘old’ regime of fundamental rights protection ensured by the CJEU. The CJEU dealt with the issue head on stating that article 51 (1) of the Charter ‘confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union’ (para. 18).

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