Judgment T-89/09 17.03.2015 | Parties | Jurisdiction | Formation | Judge Rapporteur | Advocate General | Subject-matter |
Request for annulment | Pollmeier Massivholz GmbH & Co. KG V European Commission | General Court | 1st Ch. | M. E. Buttigieg | / | State aid |
Keywords | Public measures concerning the establishment of a sawmill in the Land of Hesse – No opening of the formal investigation procedure – Serious difficulties – Calculation of the aid component of State guarantees – Commission Notice on State aid in the form of guarantees – Failing undertaking – Sale of public land – Rights of defence – Duty to state reasons. | |||||
Significant points | 1) In the case at hand, the lack of examination by the Commission of the lawfulness of using the rate of 0.5% of the guaranteed amount for determining the aid component of the contested guarantees in light of the 2000 Notice on State aid in the form of guarantees constitutes an indication of serious difficulties as regards whether or not the contested guarantees could be qualified as de minimis The presence of such difficulties should have led the Commission to open the formal investigation procedure.It is apparent from the case-law that the notion of serious difficulties, the presence of which obliges the Commission to open the formal investigation procedure, is an objective one. Whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the common market. It follows that judicial review by the General Court of the existence of serious difficulties will, by nature, go beyond consideration of whether or not there has been a manifest error of assessment (see judgment of 10 July 2012, Smurfit Kappa Group/Commission, T‑304/08, Rec, EU:T:2012:351, paragraph 80 and the case-law). 2) It is also apparent from the case‑law that if the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes evidence of the existence of serious difficulties (see judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T-388/03, Rec, EU:T:2009:30, paragraph 95 and the case‑law cited). 3) Concerning the nature of the review to be conducted by the General Court, it should be highlighted, on the one hand, that the Court must, in principle and having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU and, on the other hand, that the judicial review by the Court on the existence of serious difficulties will, by nature, go beyond consideration of whether or not there has been a manifest error of assessment. [Our own translation – no official translation currently available] |
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Noteworthy | Any decision of the EU Commission not to initiate the formal procedure in a State aid investigation is subject to judicial review. Following an in-depth and detailed analysis of the decision of the EU Commission at hand, the General Court has reached the conclusion that the EU Commission failed to apply the relevant legal framework, that is to say the 2000 Commission Notice on State aid in the form of guarantees, when assessing whether the measure concerned constituted State aid within the meaning of Article 107(1) TFEU. This judgment confirms that the scrutiny of the General Court in State aid matters is intense. It also echoes the previous judgment of the General Court of 7th November 2012 regarding the public hospitals in Brussels (Iris), in the case T-137/10. In that case, the General Court quashed the decision of the EU Commission not to initiate the formal investigation procedure against Belgium in spite of a substantial number of indicators suggesting that the public hospitals in Brussels were overcompensated for the services of general economic interest conducted or even questioning the very existence and scope of the services of general economic interest they would have been entrusted with. |
Monthly Archives: March 2015
Public procurement – Directives 89/665/EEC and 2004/18/EC – conflicts of interests – connection between the successful tenderer and the contracting authority’s experts
Judgment C-538/13 12.03.2015 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Reference for a preliminary ruling |
eVigilo Ltd v Priešgaisrinės apsaugos ir gelbėjimo departamentas prie Vidaus reikalų ministerijos |
CJEU |
5th Ch. |
E. Juhász |
N. Jääskinen |
Public procurement |
Keywords |
Public procurement — Directives 89/665/EEC and 2004/18/EC — Conflicts of interests — Connection between the successful tenderer and the contracting authority’s experts — Obligation to take that connection into account — Burden of proving bias on the part of an expert — Such bias having no effect on the final result of the evaluation — Time-limit for instituting proceedings — Challenging the abstract award criteria –Those criteria clarified after the exhaustive reasons for the award of the contract had been communicated — Degree of the tenders’ conformity with the technical specifications as an evaluation criterion |
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Significant points |
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Noteworthy |
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Financial Services – Directive 2003/6/EC – Concept of “inside information”
Judgment C-628/13 11.03.2015 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Reference for a preliminary ruling |
Jean-Bernard LafontaVAutorité des marchés financiers |
CJEU |
2nd Ch. |
J.L. da Cruz Vilaça |
M. Wathelet |
EU Banking and Financial Law – Directive 2003/6/EC (MAD) – Directive 2003/124/EC – Inside information |
Keywords |
Financial services — Directive 2003/6/EC — Concept of ‘inside information’ — Information ‘of a precise nature’ — Directive 2003/124/EC — Potential effect in a particular direction on the prices of financial instruments |
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Significant points |
On a proper construction of point (1) of Article 1 of Directive 2003/6/EC and Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC, in order for information to be regarded as being of a precise nature for the purposes of those provisions, it need not be possible to infer from that information, with a sufficient degree of probability, that, once it is made public, its potential effect on the prices of the financial instruments concerned will be in a particular direction.
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Noteworthy |
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Competition – Concentrations – Decision declaring that the concentration is incompatible with the internal market
Judgment T-175/12 09.03.2015 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Application for annulment |
Deutsche Börse AG v European Commission |
General Court |
3rd Ch. |
S. Papasavvas |
/ |
Competition – Merger |
Keywords |
Competition — Concentrations — Financial instruments sector — European derivatives market — Decision declaring that the concentration is incompatible with the internal market — Assessment of the effects of the transaction on competition — Efficiency gains — Commitments |
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Significant points |
[From the press release (no public version of the judgment being available as yet)]
The General Court considers, first, that none of the arguments put forward by Deutsche Börse can call into question the Commission’s conclusions on the definition of the relevant market. According to the General Court, the Commission did not make errors of law or assessment in considering that exchange-traded derivatives (ETDs) and over-the-counter derivatives (OTC derivatives) belonged to separate markets. Secondly, the General Court rejects Deutsche Börse’s arguments relating to the efficiency gains which the merger could have brought and to the commitments made by the companies for the purpose of counteracting the significant restrictions of effective competition. |
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Noteworthy |
As no public version of the judgment is currently available whilst the parties are consulted on possible redactions to the decision on confidentiality grounds, we are unable to provide substantive commentary on the General Court’s findings. However, we note already that the confirmation of the Commission’s 2012 decision is significant in defending the Commission’s long-standing policy regarding competition in securities trading. Indeed, the Commission published a communication in 2004 highlighting the risk of foreclosure on these markets stemming from market consolidation and in 2006 published an issues paper which showed skepticism towards the efficiencies that could arise from the vertical integration of operators providing the trading, clearing and settlement of securities trading (see on these points, PARTSCH Ph.-E., Droit bancaire et financier européen, Larcier 2009, p. 689, paragraph 1090). |
Economic and monetary policy – Eurosystem Oversight Policy Framework – Oversight of payment and securities settlement systems
Judgment T-496/11 04.03.2015 |
Parties |
Jurisdiction |
Formation |
Judge Rapporteur |
Advocate General |
Subject-matter |
Appeal |
United Kingdom v European Central Bank |
General Court |
4th Ch. |
M. Prek |
/ |
Economic and monetary policy |
Keywords |
Economic and monetary policy — ECB — Action for annulment — Eurosystem Oversight Policy Framework — Challengeable act — Admissibility — Oversight of payment and securities settlement systems — Application to central counterparty clearing systems of a requirement to be located in a Member State party to the Eurosystem — Competence of the ECB |
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Significant points |
I. Admissibility
II. Substance
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Noteworthy |
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