EU Law Update: Two states ordered to recover unpaid corporation tax

The European Commission has ordered Luxembourg and the Netherlands to recover unpaid tax from Fiat and Starbucks in the region of €20 million to €30 million each. On October 21st, competition commissioner Margrethe Vestager condemned tax rulings ordered by Luxembourg and the Netherlands in favour of Fiat and Starbucks respectively as illegal and contrary to the EU state aid rules.

A decision by the commission in respect of tax rulings by the Irish Revenue in relation to the corporate taxation of Apple is expected to follow. A finding of illegality could see the Irish Government ordered to recover unpaid tax from Apple of sums well in excess of €30 million.

Data protection

In a significant development in the field of privacy and data protection, the Court of Justice of the European Union has ruled invalid the “safe harbour” arrangement between the EU and the US, a mechanism used to facilitate the export of personal data from the EU to the US.

The Schrems v Data Protection Commissioner judgment of October 6th found that the safe harbour arrangement violates fundamental rights to privacy and data protection.

The arrangement was based on a decision by the commission in July 2000 that the US ensured an adequate level of protection for personal data transferred from the EU to the US. As a directly related consequence of the Schrems judgment, the Irish Data Protection Commissioner will now have to examine a complaint made against Facebook by Max Schrems to decide whether the transfer of personal data of Facebook’s European users to the US is compatible with EU data protection laws.

State aid

In another state aid case involving Ireland, the commission opened a formal investigation in September into alleged unlawful State aid provided to Aer LingusAer Arann and Dublin Airport Authority.

The commission had previously dismissed a complaint by Ryanair that the exclusion by Ireland of transfer and transit passengers from Irish air travel tax amounted to State aid, which Ryanair argued unfairly favoured Aer Lingus and Aer Arann to its detriment.

Ryanair challenged that decision and the general court agreed in November 2014 that the commission should have initiated a formal investigation to examine appropriately the issues. The commission will now formally investigate the matter and third parties will be given the opportunity to comment.

According to a joint report announced late last month by the European Commission and the European Environment Agency, the EU is on schedule to meet and exceed its 2020 target to reduce its greenhouse emissions by 20 per cent.

The latest projections submitted by member states show that the EU is heading towards a 24 per cent reduction by 2020. This could increase to 25 per cent due to additional measures planned in member states.

This article by Maureen O’Neill and Áine Connor, members of the Irish Society for European Law, was published in The Irish Times on Friday 13 November 2015

EU Law Update: Travelling time is ‘working time’

There were developments in September in relation to the European Law obligation on airlines to pay compensation where a flight is delayed or cancelled.

European Court of Justice judgment on September 17th, in a case arising from a claim for €600 from KLM because of a 29-hour delay, reinforces consumer rights.

KLM had argued that it was not obliged to pay compensation under European Law as an exception for “extraordinary circumstances” applied to the delay. The delay arose from an unforeseen technical problem which was not identified by general maintenance checks and tests. The court held that unforeseen technical problems were part and parcel of the daily business of an air carrier and as such could not be deemed “extraordinary” and on that basis compensation for the delay was payable to passengers.

On September 24th, shortly after the Volkswagen emissions scandal emerged, the European Commission made a statement calling for full disclosure, zero tolerance and strict compliance with EU rules on pollutant emissions. The commission called on all EU member states to carry out national investigations and report back to them. It announced that a new Real Driving Emission (RDE) test procedure would be phased in from early 2016.

The recent judgment of the European Court of Justice in the Tyco case on September 10th could have far-reaching effects in Ireland for employers whose staff do not have a fixed place of work.

The case addressed the question of whether time spent travelling between home and individual clients for such employees constitutes “working time” or “rest period” under the Organisation of Working Time Directive, and whether benefits accordingly accrue in respect of that time. The court came to the conclusion that travelling time must be included in “working time” since the employer determines the place where the employee should be and the employee remains at the employer’s disposal.

While this judgment may not immediately impact private employers, it would appear that this case could have significant broader implications for public bodies who are directly bound by this judgment. Not only would this mean that travelling time would be included in “working time”, but many other employees who do not have a fixed place of work, including a wide range of health care workers, could be affected by this judgment.

This article by Elaine Davis and Joanne Finnmembers of the Irish Society for European Law, was published in the Irish Times on Friday, 16 October, 2015.

© 2015

Competition Law Essay 2015/2016

We are delighted to announce the launch of the 2015/2016 Competition Law Essay Competition. The aim of the Competition is to promote and encourage written work on the subject of competition law amongst younger lawyers.

The Competition is open to anyone who is, or will be within one year of the Deadline (see below), a third level student, a trainee lawyer (solicitor or barrister), a paralegal, or a stagiare. The prize is €500 and the winning work may be published in the Irish Journal of European Law.

The adjudicating panel consists of:

  • The Hon. Mr. Justice Aindrias Ó Caoimh, former Judge at the Court of the Justice of the European Union (Chairman);
  • Mr. Noel Travers, SC; and
  • Ms Úna ButlerDirector of Legal Services of the Competition and Consumer Protection Commission.

The deadline for submissions is Friday 4 March 2016. Entrants should send an electronic copy (in PDF/ read-only format) of their cover letter and submission by e-mail to Maureen O’Neill, Chair of the Competition Law Forum, at

Further details of the Competition, including the submission procedure, are set out in the .essay Competition rules.

Irish Journal of European Law – Special Volume – Changing Sovereignty

Welcome to the Irish Journal of European Law (IJEL)’s Special Volume  – Changing Sovereignty in Europe – with Guest Editorial by Imelda Maher

Table of Contents – IJEL Vol 18 Issue 1 – Special Volume -Changing Sovereignty

European agenda on migration launched

CATHERINE DONNELLY Following the terrible loss of life in the Mediterranean in April, the EU introduced a European agenda on migration on May 13th.

In the short term, the focus is on increasing the budget for Frontex – the EU’s agency for the management of co-operation at external borders of the union – to provide for ships and aircraft to save lives at sea and to provide for safe and legal resettlement of people to Europe.

In the longer term, the EU’s objectives include reducing the incentives for irregular migration, saving lives and securing external borders. However, as the measures proposed relate to justice and home affairs, Ireland has an “opt in” right and will be bound by such measures only if it so chooses.

EU competition commissioner Margrethe Vestager announced a proposal at the end of March for an inquiry into the e-commerce sector, out of concern for the fact that while about half of all EU consumers shop online, only 15 per cent of them buy from a seller based in another EU member state, suggesting significant barriers to e-commerce still exist.

The EU’s principle of institutional balance between the European Commission, European Parliament and European Council featured in Case C-409/13. Displeased with amendments made by the council and the parliament to one of its legislative proposals, the commission withdrew its proposal.

The Court of Justice ruled that, while the commission did enjoy a power of withdrawal of proposals, this power was subject to an obligation to state the grounds for the withdrawal, which grounds would have to be supported by cogent evidence or arguments.

There was an interesting ruling of the Court of Appeal in the UK at the end of March, in the case of Vidal-Hall v Google, which invoked the charter of fundamental rights to strike down UK legislation which limited the ability to sue for non-economic losses in the context of data protection law, and which may have repercussions for enforcement of other EU rights.

In Case C-446/12, the Court of Justice gave an indication in April of the limits to the reach of the charter, holding that where a member state stores and uses fingerprint data, originally collected in compliance with an EU regulation, but which the state then uses for purposes other than those stipulated in the regulation, the member state is not acting within the scope of EU law and therefore is not bound by the charter. This ruling will be welcomed by states who have concerns about the potentially broad scope of application of the charter.

Finally, preliminary rulings continue to be sought by the Irish courts from the Court of Justice, with the Supreme Court referring the question of whether the Motor Insurers Bureau of Ireland is an “emanation of the State”. Úna Butler and Catherine Donnelly are members of the Irish Society for European Law.

Winner of the Competition Law Essay Competition 2014/2015

Séan O’Dea has been selected, unanimously, as the winner of this year’s Competition Law Essay Competition, for his essay “Developing a Competition Culture”.  The Society would like to congratulate Séan and to thank all those who entered the competition.

The Society would also like to express its sincere thanks to the members of the adjudicating panel for their time and continued dedication to the competition.  The adjudicating panel consists of:

  • The Hon. Mr. Justice Aindrias Ó Caoimh, Court of the Justice of the European Union (Chairman);
  • Mr. Noel Travers, SC; and
  • Mr. Gerald FitzGerald, Member of the Competition and Consumer Protection Commission.

Séan will be presented with a cheque for €500 at the upcoming Competition Law Forum event on 21 May, at which Prof. Richard Whish and Dr. Suzanne Kingston will provide an update on competition law developments in Europe and Ireland.  In addition, Séan’s essay will be eligible to be published in the Irish Journal of European Law.

Court decisions show variety of areas influenced by EU law

The Opinion of Advocate General Bot indicating a failure by Ireland to comply with the EU Working Time Directive in respect of doctors’ hours issued on March 19th has understandably garnered significant attention in Ireland. However, the European Courts and the Commission have in recent weeks issued a number of interesting decisions illustrating the variety of areas influenced by EU law.

Two recent decisions illustrate the influence of the EU institutions on financial markets in EU Member States. In Lafonta v Autorité des Marchés Financiers the Court of Justice was asked to consider how precise information in respect of publicly listed companies must be before it is required to be made available to the public pursuant to the EU Directive on Insider Dealing and Market Manipulation. In its decision of March 11th the Court of Justice held that in order for such information to be required to be made public it need not be possible to determine whether the effect of its publication would be to make the value of shares in the company go up or down. Rather, it is sufficient that its publication would be likely to result in a change in the price of the shares in either direction.

On March 9th, in Deutsche Börse v Commission, the General Court upheld the European Commission’s decision of February 1st, 2012 prohibiting, under EU merger control rules, a proposed merger between Deutsche Börse and NYSE Euronext which would have created the world’s largest financial exchange operator.

Leaving the financial markets, in February the European Commission rejected a complaint about an alleged refusal to supply Irish whiskey. The complainant, who marketed Irish whiskey procured from Cooley Distillery under the “Wild Geese” brands, found that, subsequent to the acquisition of Cooley by Jim Beam (which was in turn acquired by Suntory), it could no longer obtain supply of whiskey from Cooley. Irish Distillers Limited and the Old Bushmills Distillery Co Limited also refused to supply the complainant. The complaint alleged that the three companies were controlling the market for the supply of Irish whiskey and had potentially entered into an agreement or concerted practice not to supply the complainant with whiskey. The Commission took the view that, as each of the three companies seemed to have legitimate business reasons for refusing to supply the complainant, the complaint should be rejected.

In Joined Cases, Commission v France and Commission v Luxembourg, the Court of Justice found that both France and Luxembourg had breached EU VAT Directives by applying a reduced level of VAT to electronic books. Whereas such reduced rates are permissible in respect of conventional printed books, the Court concluded that the relevant exemption in the VAT Directives permitting such reductions is not applicable to electronic books.

Finally, in her Opinion in K v A, also on March 19th, Advocate General Kokott concluded that the EU Family Reunification Directive permits EU Member States to make the right of a non-EU national spouse to join his or her family in that State subject to the spouse passing an examination testing his or her knowledge of that country and of its language. However, the Advocate General indicated that such a system of testing must make allowances for the state of health, cognitive abilities and level of education of the individual and the availability of preparatory materials for the examination. The Advocate General further indicated that the fees for taking such an examination should not be set at such a level as to prevent the spouse from joining his or her family.

This article by Joanne Finn and Donogh Hardiman, members of the Irish Society for European Law, was published in the Irish Times on Monday, 20 April, 2015.

© 2015

Irish Journal of European Law: CALL FOR PAPERS

The Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 volume is now available on the Society’s website at

The Journal – which is blind peer-reviewed – is now issuing a call for original papers for its 2015 volume. Long articles (indicative length 8,000 – 12,000 words) and shorter articles (3,000-4,000 words), and analyses of any length of recent developments are invited.

While submissions on Irish-European legal issues are of special interest, the Journal welcomes submissions on all areas of European law. In addition to the more traditional form of academic article, comment and opinion pieces on European-Irish affairs with a legal dimension, are also welcomed.

Submissions are to be sent to by Friday 15 May 2015 in WORD format, size 12 font, single spaced. The referencing style guide is OSCOLA Ireland, which is available online at:

Irish Journal of European Law

Co-Editors: Anna-Louise Hinds & Diarmuid Rossa Phelan;

Members of the Editorial Board: Una Butler, Karole Cuddihy, Catherine Donnelly, David Fennelly, Anna Hickey.

ISEL Competition Law Essay Competition

We are delighted to announce the launch of the 2014 Competition Law Essay Competition. The aim of the Competition is to promote and encourage written work on the subject of competition law amongst younger lawyers.

The Competition is open to current undergraduate and postgraduate students, trainee solicitors and devil barristers in Ireland and their equivalents in other Member States of the European Union. The prize is €500 and the winning work will be eligible to be published in the Irish Journal of European Law.

The adjudicating panel consists of:

  • The Hon. Mr. Justice Aindrias Ó Caoimh, Court of the Justice of the European Union (Chairman);
  • Mr. Noel Travers, SC; and
  • Mr. Gerald FitzGerald, Member of the Competition and Consumer Protection Commission.

The deadline for submissions is Wednesday, 4 February 2015. Entrants should send an electronic copy (in PDF/ read-only format) of their cover letter and submission by e-mail to  Entrants may, but are not required to, submit works in hard-copy.  If submitting in hard-copy, works should be submitted to the following address:

ISEL Competition Law Essay Competition
c/o Maureen O’Neill
Mason Hayes & Curran
South Bank House
Barrow Street
Dublin 4

We would be most grateful if you could circulate this notice within your organisation.

Further details of the Competition, including the submission procedure, are set out in the Competition Rules.

EU law update: Ryanair’s German state aid ‘unlawful’

During September and October there have been some interesting decisions made by both the European Commission and the European Court of Justice. On October 15th, the Commission announced its decision that Ryanair has received unlawful state aid granted through Leipzig-Altenburg airport in Germany because the agreement between the parties is not capable of being profitable for the airport “even in the long run”. Ryanair has announced its intention to appeal the decisions, which require it to repay more than €1 million to the relevant EU member states. Ryanair did receive better news on September 18th, when the Court of Justice ruled that national laws preventing airlines from charging a price supplement for checked-in baggage are in breach of EU law. However, the Court noted that hand baggage cannot be subject to a price supplement if it meets reasonable requirements.

Bus services

Arrangements to compensate State-owned Bus Éireann and Dublin Bus for the operation of bus services across Ireland and the transport of schoolchildren have also come under review. On October 15th, the Commission concluded the current arrangements were implemented before EU state aid rules were applicable to this sector (ie the arrangements constitute “existing aid”). When existing aid is illegal, the Commission does not ask the member state to recover the aid granted but rather asks it to bring the measure to an end. Whilst the compensation arrangements for the bus services ceased in December 2009, the arrangements for the transportation of schoolchildren are still in place and must be brought into line with EU state aid rules.

On September 3rd, the European Court of Justice gave a preliminary ruling that provides guidance on the interpretation of “parody” as an exception to copyright law. Deckmyn v Vandersteen was a Belgian case in which the copyright in a comic book drawing was allegedly infringed by a calendar produced by the Flemish nationalist party. In answering a number of questions posed by the Belgian Court of Appeal, the Court of Justice held that “parody” is an EU law concept that must be interpreted uniformly and in accordance with its usual meaning in everyday language in all member states. The Court also noted that the two essential characteristics of parody are to evoke an existing work while being noticeably different from it and to constitute an expression of humour or mockery.

On October 9th, Minister for Children James Reilly told the Dáil that the European Commissioner for Health and Consumer Policy, Tonio Borg, had informed him that “the Commission has made no negative comment” on Ireland’s proposal to be the first EU country to introduce plain cigarette packaging. Notification of the proposal (as a “technical standard”) to the European Commission was made last June. Ireland has received widespread support for the proposal from politicians, anti-smoking lobby groups and cancer charities, and there are signs that other EU member states (such as France) will soon follow suit. However, objections to the notification were submitted to the European Commission by the US Chamber of Commerce and nine European countries: Italy, Bulgaria, the Czech Republic, Greece, Poland, Portugal, Romania, Slovakia and Spain. Despite the objections, it appears that the commission itself is favourable to the proposal.

This article by Kate Leahy and Victoria Balageurcommittee members of the Irish Society for European Law, was published in the Irish Times on Monday, 27 October 2014.

© 2014  – Click here to view this article on the Irish Times website