EU Law Blog

Standing to Sue, Direct and Individual Concern and Panem et Circenses: Case C-125/06 P

A while ago, the Court of Justice handed down a significant judgment on the issue of the standing of individuals to challenge acts of the EU institutions. The judgment in Case C-125/06 P Commission v. Infront WM AG broadens a little the otherwise fairly restrictive rules on standing of individuals.

You'll recall that Article 230 §4 EC requires that individuals demonstrate that they are directly and individually concerned by an act which is not addressed to them. In its classic statement in Case 25/62 Plaumann v Commission, the Court of Justice held that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by such a decision.

In its judgment in Case T-33/01 Infront WM v. Commission, the Court of First Instance held that a Infront, which owned the exclusive rights to broadcast certain soccer matches in European countries, was directly and individually concerned by a Commission decision that approved a measure taken by the British authorities under Article 3a of Directive 89/552/EC, the TV without frontiers directive. That measure, as inserted by Directive 97/36/EC, allowed national authorities to strip broadcasters of their exclusive rights to broadcast TV programs of "major importance for society" so that a substantial portion of the population could see them. The British authorities, applying the Juvenal's metaphor of panem et circenses, decided that the sports broadcasts of which Infront owned the exclusivity came within that category and deprived Infront of the exclusive right to transmit them in the United Kingdom. The British authorities notified their decision to the Commission and the Commission took a decision in its turn approving the British measure. Infront then challenged the Commission measure and won in the Court of First Instance.

The Court of First Instance held that Infront was directly concerned by the contested decision in so far as it enables the implementation of the mechanism of mutual recognition by the other member States of the measures adopted by the United Kingdom pursuant to Article 3a(1) of Directive 89/552. It also held that Infrant was individually concerned by the Commission decision because it concerns Infront by reason of a characteristic peculiar to it, namely its capacity as the exclusive holder of the TV broadcasting rights for one of the designated events. Although Infront, in its capacity as broker of the relevant television broadcasting rights is not expressly covered by the national measures approved by the Commission, the effect of the measure was to impede its ability freely to dispose of its rights by restricting their transfer exclusively to a broadcaster established in a member State other than the United Kingdom which wishes to broadcast that event in the latter State.

The Commission then appealed the judgment in Case T-33/01 to the Court of Justice on the point of standing.

The Court of Justice in its judgment in Case C-125/06 P upheld the ruling of the Court of First Instance.

The Court of Justice held first that Infront was directly concerned by the Commission measure since it imposes certain restrictions on broadcasters where they envisage broadcasting designated events for which Infront acquired exclusive rights and those restrictions are linked to the circumstances in which those broadcasters acquire the TV broadcasting rights to designated events from Infront. Consequently, the effect of the measures adopted by the United Kingdom and the Commission decision is to subject the rights held by Infront to new restrictions which did not exist when it acquired those broadcasting rights and which render their exercise more difficult. Those new restrictions were imposed by the Commission measure and the member States implementing it were left with no discretion as to how to apply it (see, Case C-386/96 P Dreyfus v. Commission, paragraph 43).

The Court also held that Infront was individually concerned because the Commission decision altered a right acquired by Infront prior to its adoption (see Joined Cases 106/63 and 107/63 Toepfer and Getreide-Import Gesellschaft v. Commission, paragraph 411). It found that Infront acquired those exclusive rights prior to the adoption of the Commission decision and that, at that time, there were only six companies which had made substantial investments in the acquisition of TV broadcasting rights to events in that list. Thus, Infront was perfectly identifiable at the time when the contested decision was adopted.

What is interesting in this judgment is that the Court finds that an affectation of exclusive rights held by the plaintiff, not their abolition, is enough to give the plaintiff standing.

We've not given much thought to this, but this caselaw could soon be superseded - on the issue of individual concern - by the new Article 263 §4 of the Treaty on the Functioning of the European Union as amended by the Lisbon-Reform Treaty that provides that an individual has standing to challenge "a regulatory act which is of direct concern to them and does not entail implementing measures". Provided of course that the Commission measure impugned is characterized as a "regulatory act" which is not defined.

For a previous post on standing, look here.

Consolidated Version of Treaties Published in OJ

The consolidated version of the Treaties taking account of the Lisbon-Reform Treaty amendments has now been published in the Official Journal. The citation is OJ 2008 C115, p. 1.

You can find that version here. It includes the Protocols, Annexes, Declarations and usefully, the table of equivalences.

That publication follows the publication on the Council web site we drew your attention to here back in April.

National Courts and the EU Judicial System: Draft Report of the European Parliament

Blogging has been light for a number of reasons but we'll do some catching up....

Back in June 2007 we noted the hearing that was held by the Legal Affairs Committee of the European Parliament recently held an interesting hearing on "The role of the national judge in the judicial system of the European Union" and announced that Diana Wallis MEP would draft an own-initiative report on the subject.

Ms Wallis has done that now and you can find the draft report and its annex here.

The draft report is well worth reading. It deals with how national courts can better enforce and apply EU law. Topics covered are not just the preliminary reference procedure but also training for judges, access to EU law (no mention of this blog, alas) and better drafting of EU law itself.

Particularly interesting is the extensive annex which is a distillation of responses sent by 2300 national judges.

Consumer Guarantees, Defective Goods and Compensation for Use: Case C-404/06

The Court of Justice held in Case C-404/06 Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände, that Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees precludes national legislation under which a seller who has sold consumer goods which are not in conformity may require the consumer to pay compensation for the use of those defective goods until their replacement with new goods.

The story goes like this. Quelle, a German mail order company, sold and delivered a ‘stove-set’ to a German consumer. But the goods were defective and since repair was not possible, the consumer returned the appliance to Quelle, who replaced it with a new appliance. However, Quelle required her to pay €69.97 (US$109.76) as compensation for the benefit which she had obtained from use of the appliance initially delivered. The Bundesverband, a consumers’ association acting as the consumer’s authorized representative, claimed a refund to her of that amount.

The German court before which the claim was brought referred a question to the Court of Justice question whether the provisions of Directive 1999/44/EC preclude an obligation on the consumer to compensate the seller of goods which are not in conformity.

The Court held that they did preclude such an obligatory payment for the use of the defective goods.

The Court stated that according to the Directive, the seller is to be liable to the consumer for any lack of conformity in the goods at the time when they are delivered. Where goods are not in conformity, the consumer is entitled to require the seller to repair the goods or to replace them – in either case free of charge – unless that is impossible or disproportionate.

It found that if a seller delivers goods which are not in conformity, it has failed to perform correctly the obligation which it accepted in the contract of sale – unlike the consumer, who has already paid the selling price – and must therefore bear the consequences of that faulty performance. It pointed out, however, the seller’s financial interests are protected by the two-year time-limit for repair or replacement and by the fact that it may refuse to replace the goods where that remedy would be disproportionate in that it would impose unreasonable costs on the seller.

During the course of the proceedings, the German government referred to a statement made in the minutes of the Council prior to the adoption of Directive 1999/44/EC giving a restrictive interpretation to the meaning of "free of charge". The Court disregarded it and recalled its settled case-law that, where a statement recorded in Council minutes is not referred to in the wording of a provision of secondary legislation, it cannot be used for the purpose of interpreting that provision (see, inter alia, Case C‑292/89 Antonissen, paragraph 18, and Case C‑402/03 Skov and Bilka, paragraph 42).

Energy Market Report

The Commission has published a report on the implementation of the gas and electricity markets.

You can download the report - COM (2008) 192 final - here.

Of course, creating an efficient European-wide market for gas and electricity in such traditionally balkanized industries is clearly important if Europe wants to remain something of an industrial power in the coming decades.

But the conclusions of the report are not wholly encouraging:

"Despite some encouraging improvements, notably on cross-border coordination at regional level, the overall analysis of progress on the internal market in electricity and natural gas shows that major barriers to the efficient functioning of the market still exist.
Insufficient implementation of European legislation remains a crucial factor."

The fact that the language of the report sometimes descends into impenetrable Commission-babble does not help.

Consolidated Treaty with Lisbon Treaty Amendments

Admit it ! You never thought it was going to happen.

At last, a consolidated version of the Treaties incorporating the Lisbon-Reform Treaty amendments has been made available here. And in all official languages too.

Here's the link to the English language pdf version, and here's the link to the English language MS Word file.

The Articles are properly renumbered too.

Privacy and Search Engines like Google: Opinion of Art. 29 Working Party

The Working Party set up pursuant to Article 29 of Directive 95/46/EC on data protection has issued an interesting opinion on the privacy issues raised by search engines like Google or Yahoo.

You can find the opinion ("WP 148") here.

Part of the executive summary reads as follows:

"In this Opinion the Working Party identifies a clear set of responsibilities under the Data Protection Directive (95/46/EC) for search engine providers as controllers of user data. As providers of content data (i.e. the index of search results), European data protection law also applies to search engines in specific situations, for example if they offer a caching service or specialise in building profiles of individuals. The primary objective throughout the Opinion is to strike a balance between the legitimate business needs of the search engine providers and the protection of the personal data of internet users.

This Opinion addresses the definition of search engines, the kinds of data processed in the provision of search services, the legal framework, purposes/grounds for legitimate processing, the obligation to inform data subjects, and the rights of data subjects.

A key conclusion of this Opinion is that the Data Protection Directive generally applies to the processing of personal data by search engines, even when their headquarters are outside the EEA, and that the onus is on search engines in this position to clarify their role in the EEA and the scope of their responsibilities under the Directive. The Data Retention Directive (2006/24/EC) is clearly highlighted as not applicable to search engine providers."

The conclusion that Directive 95/46/EC applies to the processing of personal data by search engines outside the EU needs looking at more closely and is likely to be controversial.

Minimum Wages, Collective Agreements and Posted Workers: Case C-346/06

The Court of Justice has handed down an great judgment in Case C-346/06 Dirk Rüffert v. Land Niedersachsen defending the rights of workers posted from a low wage state to work in a high wage state.

The Court held that if a member State has in force a system for declaring the rate of pay fixed by a collective agreement to be universally applicable but fails to make such a declaration, a legislative measure of that member State applicable to public contracts is precluded by Directive 96/71/EC on the posting of workers in the framework of the provision of services from imposing a requirement on providers of cross-border services who post workers to that member State to comply with the rate of pay fixed in the collective agreement.

Here's the story. A German contractor was awarded the contract to build a prison and it undertook to pay those working on the site the wages at the rate fixed in the "Buildings and public works" collective agreement. But the German contractor employed a Polish subcontractor whose workers posted from Poland were paid roughly half the German rate fixed in the collective agreement.

The law of the Land of Lower Saxony - where the prison was being built - on the award of public contracts states that public works contracts may be awarded only to undertakings which agree in writing to pay their employees at least the wages at the rate prescribed by the applicable collective agreement. The contractor must also undertake to impose that obligation on subcontractors and to monitor their compliance with it. Non-compliance with that undertaking triggers the payment of a contractual penalty. Because the Polish subcontractor breached the German contractor's obligation, the German company was fined.

The German company appealed the fine in the competent German court which then referred the question to the Court of Justice whether Article 49 EC on the freedom to provide services precludes a statutory obligation requiring a contractor in a public works contract to undertake to pay its employees at least the remuneration prescribed by the applicable collective agreement.

The Court of Justice held that, in the particular circumstances of this case, the law of the Land of Lower Saxony was contrary to Directive 96/71/EC read in the light of Article 49 EC.

The Court found that the rate of pay provided for by the ‘Buildings and public works’ collective agreement was not fixed according to one of the procedures laid down by Directive 96/71/EC. Although Germany has a system for declaring collective agreements to be of universal application, no such declaration appears to have been made in respect of the collective agreement applicable in this case. As a result, such a rate of pay cannot be considered to constitute a minimum rate of pay within the meaning of Article 3(1)(c) of Directive 96/71 which member States are entitled to impose, pursuant to that directive, on undertakings established in other member States, in the framework of the transnational provision of services (see, Case C‑341/05 Laval un Partneri, paragraphs 70 and 71 - see our post here).

The Court also held that the law of the Land of Lower Saxony was contrary to Article 49 EC. By requiring undertakings performing public works contracts and, indirectly, their subcontractors to apply the minimum wage laid down by the ‘Buildings and public works’ collective agreement, a law such as the one in issue may impose on service providers established in another member State where minimum rates of pay are lower an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host member State. Therefore, such a measure is capable of constituting a restriction within the meaning of Article 49 EC.

The Court also found that no plausible justification of the measure had been put forward.

Mobile phones to be allowed on planes

The Commission has adopted a decision - not yet published in the Official Journal but available here - allowing the use of mobile phones on board aircraft during flights.

So, the relative peace and quiet of air travel comes to an end. Europeans tend to eat, drink, walk and drive with mobile phones grafted on their ears. Now the can fly with their beloved phones too.

The new decision sets out harmonized technical parameters of onboard equipment for in-flight mobile phone use throughout the EU that will allow member States to recognize each other's licenses for mobile communications on board aircraft without risk to mobile networks on the ground.

Here's a press release and a series of frequently asked questions on the matter.

The Commission also issued a Recommendation for a harmonized approach on licensing which will promote mutual recognition between national authorizations for mobile communications services on aircraft.

Here's an article by the BBC explaining how the system will work.

The case for noise canceling earphones has never been stronger!

Review of Regulatory Agencies

Those interested in administrative law would do well to look at the Commission's review of regulatory agencies entitled "European Agencies - The Way Forward" (COM(2008) 135 final). That document is accompanied by another one, referenced SEC(2008) 323, but the Commission true to its secretive form has not made that document public!

The purpose of the document which is in fact a Communication to the European Parliament and the Court is to review the current agencies, how they are structured and how they work. It seeks to lay the ground work for a common framework for regulatory agencies but the Commission announces that it will withdraw its proposal for an interinstitutional agreement on the operating framework for regulatory agencies (COM (2005) 59).

It concentrates on regulatory agencies of which there are now 29. A regulatory agency is a body governed by EU law, distinct from the EU Institutions (Council, Parliament, Commission, etc.) with its own legal personality. It is set up by a directive or regulation in order to accomplish a very specific technical, scientific or managerial task. For a list of them, see here. The three CFSP agencies are listedhere. The Police and Judicial Cooperation in Criminal Matters agencies are listed here.

According to the Communication, regulatory agencies employ an incredible 3800 staff.

Executive agencies, on the other hand, are not covered by this Communication. They areorganizations entrusted with certain tasks relating to the management of one or more Community programs, are set up for a fixed period and must located in Brussels or Luxembourg. They are established in accordance with Council Regulation 58/2003. For a list, see here.