Brussels I Regulation – Financial law and consumer protection
Regulation (EC) No 44/2001 – Jurisdiction in civil and commercial matters – Consumer, domiciled in one Member State, having purchased securities issued by a bank in another Member State from an intermediary established in a third member State – Jurisdiction for actions brought against the issuer of those securities
1. Under which provision of Brussels I Regulation may an applicant who, as a consumer, has acquired a bearer bond from a third party professional invoke jurisdiction for the purposes of an action brought against the issuer of the bond on the basis of the bond conditions, breach of the information and control obligations and liability for the prospectus?
a. Not under Article 15 (1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters due to the lack of an agreement between the consumer and the issuer of the bond.
b. Not under Article 5 (1) (a) of Regulation No 44/2001 due to the lack of a legal obligation freely consented to by the issuer towards the applicant.
c. In so far as that liability is not based on a matter relating to a contract, within the meaning of Article 5 (1) of the Regulation, under Article 5 (3) of Regulation No 44/2001.
In this respect, the courts where the applicant is domiciled have jurisdiction, on the basis of the place where the loss occurred, to hear and determine such an action, particularly when the damage alleged occurred directly in the applicant`s bank account held with a bank established within the area of jurisdiction of those courts.
2. In the context of the determination of international jurisdiction under Regulation No 44/2001, it is not necessary to conduct a comprehensive analysis of the evidence in relation to the disputed facts that are relevant both to the question of jurisdiction and to the existence of the claim. It is, however, permissible for the court hearing the case to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the allegations made by the defendant.
Articles 15(1), 5(1) and 5(3) of the Regulation No 44/2001 must be interpreted strictly since they constitute respectively a derogation from the general rule of jurisdiction laid down in Article 2 (1) of the regulation/rules of special jurisdictions for contracts, tort, delict or quasi-delict.
This being said, the Kolossa judgment brings valuable clarifications to the Kronhofer judgment (C-168/02) regarding the jurisdiction of the courts where the applicant is domiciled under Article 5(3) of Regulation No 44/2001. Provided that the bank account in which the loss occurred is held within the Member State of residence of the plaintiff (by contrast to the situation in the Kronhofer case), they are competent.
Competition — Administrative proceedings — European market for hydrogen peroxide and perborate — Publication of a decision finding an infringement of Article 101 TFEU — Rejection of a request for confidential treatment of information provided to the Commission pursuant to its Leniency Notice — Obligation to state reasons — Confidentiality — Professional secrecy — Legitimate expectations
Disclosing information concerning an infringement of EU competition law through the publication of a decision penalising that infringement, on the basis of Article 30 of Regulation No 1/2003, cannot, in principle, be conflated with allowing third parties access to documents contained in the Commission’s investigation file relating to such an infringement. Thus, in the present case, the publication of information relating to the circumstances constituting the infringement that was not contained in the non-confidential version of the HPP decision published in 2007 — were it to take place — would not result in the communication to third parties of the leniency applications submitted to the Commission by the applicants, of the minutes of the oral statements made by the applicants in the context of the leniency programme, or of the documents that the applicants voluntarily submitted to the Commission during the investigation.
There is no rule of law that the Commission would infringe simply because the proposed publication of information provided in the context of the leniency programme could have an impact on the implementation of that programme in future investigations. Furthermore, that particular argument involves the public interest in knowing as fully as possible the reasons for any Commission action, the interest of economic operators in knowing the sort of behaviour for which they are liable to be penalised, and the interest of the Commission in safeguarding the effectiveness of its leniency programme. Those specific interests are not peculiar to the applicants, with the result that it is for the Commission alone to balance, in the circumstances of the case at hand, the effectiveness of the leniency programme, on the one hand, and the interest of the public and of economic operators in knowing the content of its decision and taking action in order to protect their rights, on the other.
It is necessary to reject the applicants’ argument that the Commission is prohibited from making public, in any circumstances, information contained in leniency applications or statements made in the context of the leniency programme as a result of the 2002 or 2006 Leniency Notices.
In this judgment, the General Court confirmed that the Commission could in principle publish a non-confidential version of a cartel decision containing information submitted voluntarily by a cartel participant in an immunity application. No rules prevent the Commission from publishing such a version so long as it refrains from disclosing any business secrets of the cartel participant involved and the actual documents submitted in the immunity or leniency application. In those circumstances, the applicants’ legitimate expectations and right to good administration would not be infringed.
Régie communale autonome du stade Luc Varenne VEtat belge
Directive 77/388/EEC — VAT — Exemptions — Article 13B(b) — Concept of ‘exempted letting of immovable property’ — Provision, for consideration, of a football stadium — Contract for provision reserving certain rights and prerogatives to the owner — Supply, by the owner, of various services representing 80% of the charge specified in the contract
Article 13B(b) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment constitutes an exception to the general principle that VAT is to be levied on all services supplied for consideration by a taxable person and it must therefore be interpreted strictly.
As a result, this provision , must be interpreted as meaning that the act of making available, for consideration, a football stadium under a contract reserving certain rights and prerogatives to the stadium owner and providing for the supply, by the owner, of various services, including services of maintenance, cleaning, repair and upgrading, representing 80% of the charge which is agreed in the contact to be payable, does not constitute, as a general rule, a ‘letting of immovable property’ within the meaning of that provision. The finding of the facts is however for the referring court.
In the circumstances at issue of the main proceedings, what seems to be involved is the supply, by the corporation, of a more complicated service consisting of provision of access to sporting facilities, where the corporation takes charge of the supervision, management, maintenance and cleaning of those facilities. In this respect, the length of the period of enjoyment specified in the supply contract concerns a maximum of 18 days when football is played, such a period not being a priori negligible. The referring court will however have to assess whether, in the light of all the circumstances, the contractual period of enjoyment should rather be classified as being occasional and temporary, which would be additional evidence in support of the view being taken that the transaction at issue in the main proceedings, considered as a whole, should be classified as a supply of services rather than as a letting of immovable property
Regulation (EC) No 44/2001 – Article 5(3) — Special jurisdiction in matters relating to tort, delict or quasi-delict — Copyright — Dematerialised content — Placing online — Determination of the place of the event giving rise to the damage — Criteria
Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.
In this respect, unlike Article 15(1)(c) of Regulation No 44/2001, which was interpreted in the judgment in Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740), Article 5(3) does not require, in particular, that the activity concerned be ‘directed to’ the Member State in which the court seised is situated (see judgment in Pinckney, EU:C:2013:635, paragraph 42).
Competition – Abuse of dominant position – Airport services market – Decision rejecting a complaint – Article 13 (2) of regulation (EC) No 1/2003 – Case dealt with by a competition authority of a Member State – Rejection of the complaint on priority grounds – Decision of the competition authority drawing conclusions, in competition law, from an investigation conducted under national legislation applicable to the sector in question – Obligation to state reason
EasyJet Airline Co. Ltd is a British air carrier which lodged a complaint with the EU Commission that the charges set by Luchthaven Schiphol NV were discriminatory and excessive and amounted to an abuse of a dominant position in the airport services market according to Article 102 TFEU. In its decision C (2013) 2727 final of 3 May 2013, the Commission stated that the Netherlands competition authority had already dealt with the case on the basis of Article 102 TFEU and rejected the antitrust complaint.
Having a broad discretion when applying Article 13 of Regulation No 1/2003, the Commission may, in order to reject a complaint, rely on the fact that a competition authority of a Member State has previously rejected that complaint following a review based on conclusions reached by it in the course of an investigation conducted under separate provisions of national law, on condition that that review was conducted in the light of EU competition law rules.
The Commission noted that the Netherlands competition authority had in particular indicated the extent to which the findings of the investigation conducted under air navigation law where relevant to its review based on competition law, by describing the similarities between the two sets of rules, comparing the equivalence of the services and ascertaining the competitive disadvantage caused by Schiphol`s airport`s pricing.
According to the General Court, the Commission may reject a complaint on the basis of Article 13 (2) of Regulation No 1/2003 which has previously been rejected by a competition authority of a Member State on priority grounds.
State aid – Rescue aid and restructuring firms in difficulty – Restructuring aid envisaged by the French authorities in favor of SeaFrance SA – Increase in capital and loans granted by the SNCF to SeaFrance – Decision declaring the aid incompatible with the internal market – Definition of State aid – Criterion of private investor – Guidelines on State aid for saving and restructuring firms in difficulty
SeaFrance was a French public company indirectly 100 % owned by the SNCF. The two loans granted by the SNCF to SeaFrance constituted Sate aid according to article 107 (1) TFEU and pursued the same objective as the recapitalisation, namely the financing of the restructuring.
The various measures purposed in the recapitalisation plan and SeaFrance`s financial situation were so closely linked that they were inseparable as regards the private investor test. The overall expected rate of return on the rescue aid, the recapitalisation and the loans did not match the return that would be expected by a private investor. A private external creditor in a market economy would not have implemented in respect of SeaFrance all the measures implemented by the SNCF.
The SeaFrance restructuring aid was incompatible with the internal market. SeaFrance had not made a real contribution of its own, free of aid and as high as possible, necessary amounting to 50 % of the financing needs of the restructuring and aimed at allowing the markets to believe in the disability of the company`s return to viability within a reasonable period. The own contribution of SeaFrance to the financing of restructuring was too low and uncertain.
The fact that a loan could not be granted to SeaFrance by its sole shareholder SNCF, when such a shareholder also deal with a recapitalisation of the company, is not the result of any violation of the principle of equal treatment between public and private companies pursuant to article 345 TFEU, but the result of a correct application of the criterion of private investor.
The General Court confirms the Commission`s decision that the rescue aid granted by the SNCF in 2010 to SeaFrance and the restructuring measures set out in the 2011 plan (recapitalisation and loans) were indeed incompatible with the internal market.
Non-contractual liability – Competition – International removal services market in Belgium – Removals of officials and other servants of the Union – Decision finding an infringement of article 101 TFEU – Cover quotes – Scope of an institution`s responsibility – Force of res judicata – Duty of care – Causal link
According to the decision C(2008) 926 final of 11 March 2008, the Commission found that Ziegler participated in a cartel on the international removal services in Belgium, relating to the direct or indirect fixing of prices, market sharing and the manipulation of the procedure for the submission of tenders by means of over quotes.
Arguing that the practice of over quotes sollicitated by EU civil servants was still existing at the EU Commission and that the latter refrained from taking any steps to stop it, Ziegler brought an action for compensation
The latter has been dismissed to the extent that under article 340 (2) TFEU the EU is responsible for non-contractual cases, if its institutions or its servants caused damage in the performance of their duty and that the doings at issue of the civil servants of the EU Commission did not occur within this framework.
The Commission has not infringed an obligation to act against the other competitors and has fulfilled its duty of care. There is no obligation for the Commission to change the administrative removal rules for the EU officials. The Commission has a wide discretion regarding reimbursement removal for the EU officials, the choice to protect its financial interests, the application of the Regulations of Officials of the European Union and the initiation of disciplinary investigations.
Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V
Regulation (EC) No 1008/2008 — Air services — Second sentence of Article 23(1) — Price transparency — Computerised booking system — Air fares — Indication at all times of the final price.
The second sentence of Article 23(1) of Regulation No 1008/2008 provides that the final price to be paid is at all times to be indicated and is to include the applicable air fare or air rate as well as all applicable taxes, and charges, surcharges and fees which are unavoidable and foreseeable at the time of publication.
It follows from the actual wording of that provision that, in the context of a computerised booking system such as that at issue in the main proceedings, on the one hand, the final price to be paid must be indicated ‘at all times’, without any distinction being made between the moment when that price is indicated for the first time, the moment when the customer selects a particular flight, or the moment when the contract is finally concluded.
And, on the other hand, that the final price to be paid must be indicated not only for the air service specifically selected by the customer, but also for each air service in respect of which the fare is shown.
Indeed, in a comparability perspective, the Court has already had occasion to point out that that provision seeks to ensure that there is information and transparency with regard to the prices for air services and that, consequently, it contributes to safeguarding protection of customers having recourse to those services (judgments in ebookers.com Deutschland, EU:C:2012:487, paragraph 13, and Vueling Airlines, C‑487/12, EU:C:2014:2232, paragraph 32).
State aid — Practice of permitting London taxis to use bus lanes while prohibiting private hire vehicles from doing so — State resources — Economic advantage — Selective advantage — Effect on trade between Member States
Absence of State resources.
The fact that Black Cabs are not obliged to pay fines because of their use of bus lanes does not involve additional burdens on the public authorities, which might entail a commitment of State resources. It is not a decision not to collect fines which are payable, but a decision according to which Black cabs are permitted to use those bus lanes (§§ 40 and 41).
In addition, the State does not forgo revenues by granting a right of privileged access to a public infrastructure (the bus lane) in so far as this public infrastructure is not operated commercially by the public authorities (§§ 43 and 44).
Absence of selectivity by reference to undertakings which are in the same legal or factual situation.
Black cabs and minicabs are two categories of vehicles that must be distinguished in light of State aid rules. The “compellability” obligations and practical modalities imposed on Black cabs by their legal status, which are not mandatory, for minicabs results in a differentiation between these two operators (§§ 60 and 61).
Where the State, in order to pursue the realisation of an objective laid down by that State’s legislation (ensuring a safe and efficient transport system), grants a right of privileged access to public infrastructure which is not operated commercially by the public authorities to users of that infrastructure, the State does not necessarily confer an economic advantage for the purposes of Article 107(1) TFEU.
Economic and monetary policy — Validity of the decision of the Governing Council of the European Central Bank of 6 September 2012 — Technical features of Outright Monetary Transactions (OMTs) — National review of the constitutionality of European Union acts — Ultra vires acts — Constitutional identity — Sincere cooperation — Admissibility — Nature of an act open to legal challenge in the context of preliminary ruling proceedings — Communications strategy of the European Central Bank — Powers of the European Central Bank — Price stability — Restoring the monetary policy transmission channels — Articles 119 TFEU and 127(1) and (2) TFEU — Exceptional circumstances — Unconventional monetary policy measures — Principle of proportionality — Article 5(4) TEU — Article 123 TFEU — Prohibition of monetary financing of Member States in the euro area
The Outright Monetary Transactions (OMT) programme of the European Central Bank, announced on 6 September 2012, is compatible with Article 119 TFEU and Article 127(1) and (2) TFEU, provided that, in the event of that programme being implemented, the ECB refrains from any direct involvement in the financial assistance programmes to which the OMT programme is linked, and complies strictly with the obligation to state reasons and with the requirements deriving from the principle of proportionality.
For the OMT programme to be classified as a monetary policy measure, it is essential, as has already been pointed out, that the objectives come within the framework of that policy and that the instruments used are those proper to monetary policy. Linking the OMT programme to compliance with financial assistance programmes may be justified by the, undoubtedly legitimate, interest there is in eliminating any hint of ‘moral hazard’ that may result from a significant intervention by the ECB on the government bond market. However, the fact that the ECB plays an active part throughout the course of financial assistance programmes may make the OMT programme, inasmuch as it is unilaterally linked to those programmes, into something more than a monetary policy measure. Unilaterally making the purchase of government bonds subject to compliance with conditions when those conditions have been set by a third party is not the same as doing so when the ‘third party’ is not really a third party. In those circumstances, the purchase of debt securities subject to conditions may become another instrument for enforcing the conditions of the financial assistance programmes. The mere fact that the purchase may be perceived in that way — as an instrument which serves macroeconomic conditionality — may be sufficient in its impact to detract from or even distort the monetary policy objectives that the OMT programme pursues.
However, if exceptional circumstances were to arise which were grounds for activating the OMT programme, it would, for that programme to retain its function as a monetary policy measure, be essential for the ECB to detach itself thenceforth from all direct involvement in the monitoring of the financial assistance programme applied to the State concerned. Nothing would prevent the ECB from being kept informed and even from being heard, but under no circumstances would it be possible for the ECB, in a situation in which a programme such as OMT is under way, to continue to take part in the monitoring of the financial assistance programme to which the Member State is subject when, at the same time, that State is the recipient of substantial assistance from the ECB on the secondary government bond market. Accordingly, this functional distance between the two programmes must be maintained if the OMT programme is to retain its character of a monetary policy measure, aimed exclusively at restoring the monetary policy transmission channels.
The OMT programme is compatible with Article 123(1) TFEU, provided that, in the event of the programme being implemented, the timing of its implementation is such as to permit the actual formation of a market price in respect of the government bonds.
The fact that the ECB might be obliged — in the hypothetical event of a restructuring of a Member State’s debt — to waive, in full or in part, its claims securitised in government bonds, as a result of the OMT programme being activated, does not mean that the programme amounts to a monetary financing measure contrary to Article 123(1) TFEU.
A purchase of government bonds — even ones with a low credit rating — which may expose the ECB to a degree of risk of default, is not as such contrary, in the circumstances described, to the prohibition of monetary financing laid down in Article 123(1) TFEU.
Any implementation of the OMT programme must, if the substance of Article 123(1) TFEU is to be complied with, ensure that there is a real opportunity, even in the special circumstances in issue here, for a market price to form in respect of the government bonds concerned, in such a way that there continues to be a real difference between a purchase of bonds on the primary market and their purchase on the secondary market.
This opinion concerned a preliminary reference from the German Federal Constitutional Court hearing a case brought by certain individuals against the German Government’s decision to not contest the European Central Bank’s announcement in September 2012 of its intention to purchase government bonds issued by the Eurozone countries in order to instill stability on the bond market.
In this opinion, which will provide guidance for the judgment to be rendered in the coming months, Advocate General Cruz Villalón concludes that the ECB’s announced programme is lawful, as it comes within its monetary policy powers, is suitable and proportionate to the legitimate objective pursued and does not constitute monetary financing of Member States, prohibited under Article 123(1) TFEU.
However, any implementation of the programme would need to be subject to certain conditions being respected. Indeed, if implemented, to be compatible with the ECB’s monetary policy powers, the ECB would need to refrain from any direct involvement in the financial assistance programme that applies to the Member States concerned. In addition, the ECB would need to give sufficient reasoning for adopting an unconventional measure such as the programme concerned, identifying clearly and precisely the extraordinary circumstances that justify it.
Concerning the prohibition of monetary financing laid down in the TFEU, the Advocate General highlights that the TFEU does not prohibit transactions on the secondary market since if it did the Eurosystem would be deprived of a vital tool for the ordinary conduct of monetary policy. However, it does require that, when the ECB intervenes on that market, it does so with sufficient safeguards to ensure that its intervention does not infringe the prohibition of monetary financing. In that regard, if the ECB’s programme is implemented, its timing must be such as to permit the actual formation of a market price in respect of national government bonds.
Weekly update of CJEU and EFTA Court case law in various areas of EU law.