A Burning Desire to Clarify(?) the Law for Public Undertakings: The Judgment in Greek Lignite (Case T-169/08)

The General Court has finally handed down the judgment in the Greek Lignite (brown coal) case. This is a long-running case resulting from a complaint (dating from 2003) concerning the exploitation of lignite in Greece. As it happens, lignite is the most abundant fuel in Greece, and access to lignite is essential for the production of (relatively) cheap electricity. Greek lignite reserves amount to approximately 4 million tonnes of which about half can be exploited by DEI, the Greek Public Power Company. No such rights have been assigned for the remaining 50% of the lignite reserves, and DEI operates all power plants in Greece that use lignite. The Commission found the exclusive rights for lignite contrary to Article 106(1) in connection with 102 TFEU in what is a broad and teleological reading of the Court’s jurisprudence in this field. The General Court, however, has a rather different reading of this case law, resulting in annulment of the Commission Decision.

Because Greece has liberalised its electricity market, all companies intending to supply electricity to the Greek wholesale market must hand in daily  price-quantity offers. By examining these offers along with the forecast demand for electricity, the network operator determines the amount of electricity needed to meet demand. This electricity is then fed into the grid. Renewable electricity receives first priority, following which conventional electricity producers get to feed their electricity into the grid, with the cheapest offer coming first and the rest following in the order of their ascending prices. The price-quantity offer quoted by the last production unit to feed into the grid will determine the market price.  In these circumstances, having access to lignite as a fuel for electricity production is required for the production of cheap electricity, which in turn is required to ensure that this electricity will actually be sold on the market.

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The diversion of the Acheloos river under EU environmental law

The CJEU handed down an important judgment two weeks ago on EU water policy which concerns a number of interesting definitional issues as well as the more general issue of legal effects of directives prior to their transposition deadline. The case concerned a preliminary reference from a Greek court in legal proceedings between the central Greek government and local authorities on the diversion of the river Acheloos in the north-west of Greece.

 Authorities and local environmental groups have been fighting each other for over 20 (!) years concerning this diversion project, with those in favour of the diversion at the losing side (I call upon our Greek readers to share with us any information on what on earth is going on there).

Anyway, in the current legal proceedings the question arose whether the government measures leading to the partial diversion of the Acheloos river for water supply and electricity generation purposes was in conformity with a number of EU directives on water policy. The judgment is way too extensive to deal with in a single blog post, so I would like to discuss two aspects of the judgment:

  • The legal effect of directive 2000/60 before the transposition period has expired (the Inter-Environment Wallonie doctrine);
  • The definition of ‘imperative reasons of overriding public interest’ in article 6 (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora.

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T-154/10: GC backs the Commission in finding “bankruptcy-proofness” as a (new) source of (illegal) State aid

In its Judgment of 20 September 2012 in case T‑154/10 French Republic vs. European Commission, the General Court of the EU (GC) has established a new test of “bankruptcy-proofness” as an advantage contrary to Article 107(1) TFEU that may generate a significant shake up in the control of State aid granted (implicitly) to establishments of an industrial and commercial character (EICC, or EPIC in their French acronym)–ie legal entities governed by public law which have distinct legal personality from the State, financial independence and certain special powers, including the performance of one or more public service tasks.

 In a nutshell, the controversy concerned the Commission’s position that there is (illegal) State aid where the legal form and status of EICCs shield them from general rules on bankruptcy and winding up under the relevant national legislation (in the case, French law). Indeed, in the view of the Commission as summarised by the GC,

 [the EICC concerned (La Poste)] was not subject to the ordinary law rules governing the administration and winding-up of firms in difficulty and that, according to point 1.2, second paragraph, fourth indent of the 2008 Notice [on the application of Articles 87 [EC] and 88 [EC] to State aid in the form of guarantees (OJ 2008 C 155, p. 10)], there is aid in the form of a guarantee where more favourable credit terms are obtained by undertakings whose legal status rules out bankruptcy or other insolvency procedures (T-154/10, at para. 23, emphasis added).

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POMFR: Beyond the Established Legal Orders

Have you wondered recently whatever happened to all that “fragmentation of international law” we used to worry about? Well, a 2011 volume edited by Malcolm Evans and Panos Koutrakos and published by Hart Publishing, that’s what happened. While I would like to introduce you briefly to the whole volume, there is one contribution I would particularly like to draw your attention to.

To put you in context, this is in my view a good book for those among us who were fascinated by the „fragmentation of international law“ debate starting (or at least becoming one of THE topics) in the 2000s; who have perhaps read Koskenniemi’s report for the International Law Commission or other literature on the topic (legal pluralism, Pauwelyn’s Conflict of Norms, you name it); who find themselves now stuck in one of the boxes and/or compartments of international or EU law; and who probably would love an update and overview over where we stand today.Continue reading

The EDF judgment of the CJEU in case C-124/10 P: towards a public investor test in EU State aid law?

On the 5th of June 2012, the Court of Justice of the EU (hereafter ‘CJEU’) delivered an important judgment in the field of European State aid law on the very notion of State aid and the application of the private investor test to situations where a priori a private investor could not adopt the same behaviour as the State. To put things in context, it will be recalled that the private investor test is normally used in order to determine whether a public company has been granted an advantage within the meaning of Article 107 TFUE, by comparing the behaviour of the State with that of a private investor operating in normal market conditions. It was settled case-law (see notably the case-law quoted by the Court at point 79 of its judgment) however that, when the State acts as a public authority (by using its fiscal prerogatives for example), this test cannot be applied as there is no private investor to which the State can be compared to.

For the first time with this EDF judgment, the CJEU attempts to set criteria in order to distinguish between the State acting as shareholder and the State exercising public power.

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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].

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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.

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