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 irishtimes.com  – Click here to view this article on the Irish Times website

European Commission gives go-ahead to purchase of O2 Ireland by Hutchinson 3G

The merger of the second- and fourth-largest mobile network operators in Ireland will now go ahead after the European Commission approved the acquisition of Telefónica Ireland (O2 Ireland) by Hutchinson 3G (H3G).

The merged entity will face only two competitors – Vodafone and Eircom.

While the commission had initial concerns that the merger could result in a significant reduction in competition in both retail and wholesale markets in Ireland, potentially leading to higher prices for consumers, those concerns were addressed by commitments given by H3G.

The commitments ensured that new competitors will enter the mobile telecommunications market in Ireland and that spectrum will be released from January 1st, 2016.

DAA case

In a significant judgment on the implementation of EU procurement law in Ireland, the High Court, on May 30th, refused to lift the automatic suspension on an award of a contract by Dublin Airport Authority (DAA) for the provision of site services at Dublin Airport.

The court held that lifting the automatic suspension would be contrary to the overall scheme contemplated by procurement law in the European Union.

After failing to secure the contract, OCS had initiated proceedings challenging the DAA’s contract award decision.

The DAA brought an application to lift the automatic suspension on the basis that OCS had failed to provide an undertaking as to damages arising from the suspension.

Mr Justice Max Barrett held that the appropriate test in determining whether to lift the automatic suspension was not the established test for injunctive relief as set out by the Supreme Court in Campus Oils vs Minister for Industry and Commerce and instead, he applied the test contained in the applicable Irish regulations.

The court concluded that the DAA had not satisfied the burden of proof to lift the suspension.

Mr Justice Barrett noted that a number of negative consequences, for which damages would not be an adequate remedy, would result from a lifting of the suspension before the hearing of the substantive matter, namely the risk of redundancy and loss of expertise and competitiveness.

He concluded that the public interest lay in a fair and transparent procurement process. The judgment is under appeal to the Supreme Court.

Irish map

Finally, the European Commission has approved the Irish map for granting regional investment aid for 2014- 2020.

In June 2013 the commission adopted new regional state aid guidelines under which member states can grant state aid to businesses for regional development purposes.

The new regional map represents 51.28 per cent of the Irish population and areas eligible for regional state aid include the midlands, southeast, Border, midwest, west and parts of the midwest and southwest regions.

The maximum level of aid that can be approved to large regional enterprises is 10 per cent of total investment costs, with an increase of 10 per cent for medium-sized enterprises and 20 per cent for small enterprises.

 

 

This article by Joanne Finn and Úna Glazier- Farmercommittee members of the Irish Society for European Law, was published in the Irish Times on 30 June 2014.

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

‘Right to be forgotten’ creates data dilemma

French philosopher Paul Ricoeur wrote “To be forgotten is to die twice”. However, in recent days the Court of Justice of the EU has taken steps towards recognising a “right to be forgotten”, for EU citizens.

The case in question is Google Spain and Google v AEPD and Gonzalez.

It resulted from a complaint by a Spanish citizen, Mario Costeja González, in relation to the appearance, in Google search results for his name, of newspaper reports regarding his old unpaid debts. The Spanish data protection authority upheld his complaint against Google – although not his separate complaint against the newspaper.

Google appealed this decision, with the matter coming before the Grand Chamber of the Court of Justice, the highest and most authoritative interpreter of EU law.

The court ruled that Google must provide users, in certain instances, with a right to delete links about themselves including, in some cases, public records. The court stated that even where personal information about individuals was accurate and had been lawfully published initially, the continued publication of that information may breach EU data protection law in circumstances where, with the elapse of time, the initial publication was no longer relevant.

The court said that the right of a person to insist that information no longer be linked to searches of his name was not absolute and must be balanced against the rights of internet users.

However, the court indicated the privacy rights of the person whose details were published would “as a general rule” take priority over the rights of other internet users, unless the person played a particular role in public life.

The decision has been criticised by some on the basis that it curtails freedom of expression and internet freedom, as well as raising censorship concerns. This is because it will enable people to prevent truthful facts about them from appearing on the internet. The decision will put search engines in the extremely onerous position of having to take a view on how to comply with potentially millions of individual requests.

It will also place national data protection authorities, such as Ireland’s Data Protection Commissioner, in a similarly difficult position.

This is because individuals will be able to complain to a national data protection authority if they are unhappy with a search engine’s response to a “right to be forgotten” request. The authority, in turn, will need to consider, on a case by case basis, whether the public’s interest in access to information exceeds the individual’s privacy rights. Clearly, this is not a straightforward decision.

The EU has spent the last two years debating whether and on what terms a right to be forgotten should be included in a new general data protection regulation (which continues to be debated). Ironically, it seems that such a right already exists under the current regime.

This article by Robert McDonagh and Francis Kieran BL, committee members of the Irish Society for European Law, was published in the Irish Times on 26 May 2014.

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

XXVI FIDE Congress, Copenhagen, 28-31 May 2014

The ISEL is delighted to announce the XXVI FIDE Congress, which will be held in Copenhagen on 28-31 May.  This year’s Congress is organised by the Danish Association for European Law (DFE) and the Faculty of Law at the University of Copenhagen. The congress is a unique opportunity to learn about and influence the development of EU law and to exchange ideas and visions with colleagues from all professions of the legal world.

For further information and details on registration, please visit the FIDE2014 website.

Competition Law Forum Essay Prize 2013 – Announcement of Winning Work

The ISEL is delighted to announce that the winner of the Competition Law Essay Prize 2013, an annual competition run by the ISEL’s Competition Law Forum:-

Mr. Nicholas Liddane

The winning work is entitled:-

Addressing the Absence of a Provision in the Competition 2002 Act Analogous to Article 106(2) TFEU

The winning work will be published on the Society’s website and in a future issue of the Irish Journal of European Law.

The Prize will be awarded to Mr. Liddane at the forthcoming Competition Law Forum event, Annual Review of Important Competition Law Cases and Developments in the EU and Ireland, at which Professor Richard Whish and Mr Declan Walsh will speak.

On behalf of the Society, we would like to thank Mr. Justice Aindrias Ó Caoimh (Court of Justice of the European Union), Mr. Noel Travers B.L. and Dr. Stanley Wong (Stanley Wong Global) for acting as the Jury for the 2013 Competition and for kindly devoting their time to this initiative.

 

Dated 15th March 2013

Firms that breach data rules may be fined up to €100m

A resolution of the European Parliament last month saw MEPs call for an end to blanket mass surveillance activities by the US National Security Agency.

The resolution was made in the context of a report and recommendations by MEPs aimed at increasing EU citizens’ privacy through EU-wide data protection rules.

MEPs want to see firms that breach these new rules fined up to €100 million, or up to 5 per cent of their annual worldwide turnover.

European ministers of justice will meet in June to discuss the proposed data protection package.

In recent developments in the air transport sector, the European Commission issued new state aid guidelines for airports, which will mean that only the smallest regional airports in Europe will be allowed to continue receiving state subsidies.

This could affect operating models for budget airlines such as Ryanair and Easyjet, who pass on to their customers the lower airport usage fees at regional airports that have been possible because of state subsidies.

Meanwhile, Ryanair has suffered a blow to its campaign to retain its 29.8 per cent stake in Aer Lingus, with the UK Competition Appeal Tribunal dismissing its appeal of a decision of the UK Competition Commission forcing it to reduce its stake in Aer Lingus to 5 per cent.

Ryanair is expected to appeal further.

The long-running competition law investigation by the European Commission into the interbank fees charged by Visa Europe for credit card payments finally reached a partial conclusion in February, with Visa Europe making a settlement capping the level of its interbank fees for certain consumer credit card transactions and making commitments in respect of cross-border competition.

The arrangement is expected to reduce the fees charged to retailers and ultimately to result in lower costs for consumers, to whom the fees are usually passed on by retailers.

The commission is continuing its action against Visa Inc in relation to fees charged to credit card customers from outside Europe when their cards are used in the European Economic Area.

Finally, the European Commission has referred Ireland to the Court of Justice of the European Union (ECJ) for failure to implement fully the EU’s energy market package.

As reported in this column last year, the commission had warned Ireland that it could refer the State to the ECJ if it did not fully transpose the unbundling provisions in the electricity directive.

Separately, the commission has also referred Ireland to the ECJ for failure to transpose fully the EU’s renewable energy directive.

The commission has proposed daily fines of €20,358 and €25,000 respectively that Ireland would have to pay from the date of the ECJ’s judgment to the date the directives are fully transposed.

This article by Maureen O’Neill and Jenny Mellerickmembers of the Irish Society for European Law, was published in the Irish Times on 8 April 2014. 

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

Professor Joseph Weiler visits TCD, 18 February 2014

Professor Joseph Weiler will be visiting the Law School, Trinity College, Dublin on Tuesday 18 February 2014.  He will be delivering a public lecture at 5pm in the Examination Hall at Trinity College.  The topic is Van Gend en Loos – 50 Years On, a critical retrospective.  Members of the ISEL are welcome to attend.

18th monthly CIArb forum, February 6, 2014 – Arbitrating competition law disputes

18th monthly CIArb forum, February 6, 2014 – Arbitrating competition law disputes

Chair:

Michael Bowsher QC, Monckton chambers, London

Speakers:

Miriam Dreissen-Reilly, DG Competition

Noel J Travers BL, Law Library

At Philip Lee solicitors, 7-8 Wilton Terrace, Dublin 2

No charge to attend, non CIArb members welcome

Register: dublinarbitrationforum@gmail.com

Sovereignty, the Nation-State, and Integration History’ – Public Lecture, RIA, 5th Dec – All welcome

UCD Sutherland School of Law in association with the Royal Irish Academy – Public Lecture 5th December 2013

For the first time, as part of the UCD Sutherland School of Law’s 16th Annual Irish European Law Forum, a public lecture has been organised in association with the Royal Irish Academy on the evening before the conference – at 5.30pm on Thursday 5th December 2013.  The lecture is entitled ‘Sovereignty, the Nation-State, and Integration History’ delivered by Peter L. Lindseth, Olimpiad S. Ioffe Professor of International and Comparative Law and Director, International Programs, UConn School of Law and chaired by The Hon. Ms Justice Mary Laffoy, Supreme Court, Ireland.

Please note we have waived the fee for the public lecture and you can register here http://www.ucd.ie/law/events/title,190806,en.html.

The Irish European Law Forum is an annual one day conference run by the UCD School of Law on a different theme each year. As part of the Department of the Taoiseach’s Communicating Europe Initiative, the Forum will be run by the UCD Constitutional Studies Group to mark the 40th anniversary of accession of Ireland to the EU with a view to exploring the nature of sovereignty as a key concept shared between Constitutional, EU and Public International Law as well as the related disciplines of politics and international relations.

For full details on the conference and to book please click here http://www.ucd.ie/law/events/title,189231,en.html.

Competition Law Essay Competition 2013 Announced

COMPETITION LAW ESSAY COMPETITION 2013

The Irish Society for European Law is pleased to announce the launch of the 2013 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 adjudicating panel consists of:

  • The Hon. Mr. Justice Aindrias Ó Caoimh (Court of Justice of the European Union);
  • Mr. Noel Travers BL (Barrister, Ireland); and
  • Dr. Stanley Wong (Stanley Wong Global and a former Member of the Competition Authority of Ireland).

Who may enter?

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.

What is the prize?

The prize is €500.00 and the winning work may be published in the Irish Journal of European Law.

What is the deadline?

The deadline for entries is 2 December 2013.

How do I enter?

Please see the attached Competition Rules. Competition Law Essay Competition Rules