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.

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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 irishtimes.com

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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 moneill@mhc.ie.  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
Ireland

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.

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- Farmer, committee 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