Joined Cases C-399/10 P and C-401/10 P, Bouygues

Court of Justice qualifies declarations of government support as State aid

France Télécom SA (‘FT’) was formed in 1991 as a legal person governed by public law, and since 31 December 1996 had had the status of a public limited company. Since October 1997, FT had been listed on the stock exchange. In 2002 the French State’s participation in FT’s capital was 56.45%, the remainder being divided between the public (32.25%), France Télécom itself (8.26%) and employees of the company (3.04%).

In the first quarter of 2002, FT published its accounts for 2001, which showed a net debt of EUR 63.5 billion and a loss of EUR 8.3 billion.

In the period from March to June 2002, Moody’s and Standard & Poor’s downgraded FT’s rating and also downgraded its prospects to negative. In particular, on 24 June 2002 Moody’s downgraded FT’s rating for long and short term credit notes to the lowest investment grade. At the same time, FT’s share prices fell significantly.

In light of FT’s financial situation, the French Minister for Economic Affairs, Finance and Industry, in an interview published on 12 July 2002, stated, in essence, that if FT were to face any financing problems, the French State would take whatever decisions were necessary to overcome them.

On the same date, S & P downgraded FT’s rating for long term credit notes to the lowest investment grade, stating that this grade was maintained only as a result of the French State’s comments regarding FT.

On 13 September 2002, FT published its half-yearly accounts, which confirmed that, as at 30 June 2002, FT’s consolidated own funds became negative to the amount of EUR 440 million, and that its net debt reached EUR 69.69 billion, including EUR 48.9 billion of bond debt falling due for repayment during the period from 2003 to 2005.

In a press release of 13 September 2002 on FT’s financial situation, the French authorities stated, in essence, that the French State would contribute to the strengthening of FT’s capital base and would, if necessary, take steps to prevent FT from being faced with any financing difficulties. The authorities inter alia announced that French State’s entire shareholding in FT would be transferred to Entreprise de recherches et d’activités pétrolières (Petroleum Research and Activity Corporation) (ERAP), a public industrial and commercial entity. The latter will borrow on the financial markets in order to finance the French State’s share in the strengthening of FT’s capital base.

On the same day, Moody’s changed the outlook of FT’s debt from negative to stable owing to the French State’s confirmation of its commitment to support FT.

On 2 October 2002, a new chief executive officer was appointed to FT. The press release announcing that appointment, in essence, repeated the statement in the press release of 13 September 2002.

At FT’s board meeting of 4 December 2002, the new management of FT presented an action plan entitled ‘Ambition France Télécom 2005’ aimed essentially at rebalancing FT’s balance sheet by strengthening its capital base to the amount of EUR 15 billion.

The presentation of the Ambition 2005 plan was accompanied by a press release by the Minister of Economic Affairs, Finance and Industry of 4 December 2002 (‘the announcement of 4 December 2002’), which confirmed the French State’s support for the action plan approved by FT’s board of directors on 4 December .

On 11 and 12 December 2002, FT launched two successive bond issues for a total amount of EUR 2.9 billion.

On 17 December 2002, S & P indicated that since July 2002 the French State’s support had been one of the key factors in maintaining FT’s investment-grade rating, and that its announcement concerning the shareholder loan and the commitment to subscribe in proportion to its shareholding to a EUR 15 billion recapitalisation operation confirmed that support.

On 20 December 2002, ERAP sent FT an initialed and signed draft shareholder loan contract. FT did not sign that draft contract and the shareholder loan was never implemented.

On 15 January 2003, FT raised loans in the form of bond issues for a total amount of EUR 5.5 billion. Those bond issues were not covered by a State security or guarantee. On 10 February 2003, FT renewed part of a maturing syndicated loan to the amount of EUR 15 billion.

On 4 March 2003, the operation to strengthen the capital base as envisaged by the Ambition 2005 plan was launched. On 24 March 2003, FT carried out a capital increase of EUR 15 billion. The French State participated in that operation to the amount of EUR 9 billion in proportion to its share in FT’s capital. That operation was terminated on 11 April 2003.

FT ended the 2002 financial year with a loss of EUR 21 billion and a net financial debt of EUR 68 billion. Its accounts for showed a rise of 8.4% in turnover, of 21.1% in the operating result before amortisation and of 30.9% in the operating result. On 14 April 2003 the French State held 58.9% of FT’s capital, of which 28.6% through ERAP.

On 22 January 2003, the Bouygues companies, two companies governed by French law, of which Bouygues Télécom SA is active on the French market for mobile telephony, submitted a complaint to the Commission concerning, in particular, two cases of aid allegedly granted by the French State to FT, as a result of, first, the public declarations made by the French authorities in favour of FT from July 2002  and, secondly, the announcement of 4 December 2002 of the shareholder loan offer in the amount of EUR 9 billion.

 

The Commission

The Commission found that in July 2002, FT was facing a crisis of confidence threatening to hinder the planned refinancing and to create risks for its liquidity in 2003. It stated that, in light of the press releases by the French authorities on 13 September 2002 and 2 October 2002, the rating agencies Moody’s and S & P had changed their assessment of the management of FT’s debt and noted an increase in market confidence.

The Commission noted that the declaration of 12 July 2002 certainly had an effect on the markets and conferred an economic advantage on FT. However, following its analysis of numerous legal arguments, the Commission took the view that it did not have sufficient information to enable it to demonstrate that that declaration was, at least potentially, of such a character as to commit State resources.

By contrast, the Commission considered that the shareholder loan offer conferred an advantage on FT and potentially committed State resources. First, the loan would have enabled FT to increase its means of financing and to reassure the market as to its capacity to meet its maturities. Secondly, a potential additional burden on State resources had been created by the announcement of the provision of the shareholder loan, coupled with the fulfilment of the preconditions for that provision, by the impression given to the market that the loan had actually been provided and, lastly, by the dispatch of the loan offer.

The Commission also took the view that, in the competitive telecommunications sector, advantages such as those which benefited FT distorted or threatened to distort competition to a particularly appreciable extent, and were likely to affect trade between Member States.

In paragraphs Commission considered that, in light of the impact on the market, in particular the declarations from July 2002, the measures notified satisfied neither the test of the prudent private investor in a market economy, nor those relating to aid for rescuing or restructuring firms in difficulty. Therefore, it concluded that the measures referred to constituted State aid incompatible with the common market.

However, considering that the impact of this aid could not be evaluated with precision, and that the overall analysis of the elements of that aid, apart from the shareholder loan offer, in light of their compatibility with the rules on State aid was new, the Commission took the view , that respect for the rights of the defence and the principle of the protection of legitimate expectations stood in the way of recovery of the aid.

The General Court

The General Court found that the declarations from July 2002 could not be regarded as a guarantee or interpreted as exposing the resources of the French State to a risk that constituted a transfer of State resources, and rejected the Bouygues companies’ application for annulment of Article 1 of the contested decision in that the Commission refused to characterise the declarations from July 2002 as State aid.

As to the announcement of 4 December 2002, the General Court held, in paragraph 293 of the judgment under appeal, that neither the Commission nor the Bouygues companies had maintained that that announcement, in itself, contained a sufficiently precise, firm and unconditional commitment supporting a finding of the existence of a transfer of State resources within the meaning of Article 87(1) EC. Moreover, in paragraphs 294 to 298 of the judgment, the General Court held that the Commission had not demonstrated that the announcement of 4 December 2002 involved a transfer of State resources.

As to the shareholder loan offer, the General Court held that, in so far as the Commission had not established satisfactorily any advantage deriving from it, it was not, a fortiori, possible for the Court to find the existence of any transfer of State resources linked to that advantage.

The General Court concluded that the Commission had failed to apply the concept of State aid within the meaning of Article 87(1) EC by finding that the shareholder loan offer, when placed in the context of the declarations from July 2002, involved the conferment of an advantage on FT which resulted from a transfer of State resources, and annulled Article 1 of the contested decision.

The Court of Justice

The Court  first of all reiterated that, under the terms of Article 107(1) TFEU, save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorted or threatened to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affected trade between Member States, was incompatible with the internal market.

The Court reiterated that only advantages granted directly or indirectly through State resources or constituting an additional burden on the State were to be regarded as aid within the meaning of Article 107(1) TFEU. According to the Court, the very wording of this provision and the procedural rules laid down in Article 108 TFEU showed that advantages granted from resources other than those of the State did not fall within the scope of the provisions in question (see  Joined Cases C-72/91 and C-73/91 Sloman Neptun [1993]; Case C-200/97 Ecotrade [1998]; and Case C-379/98 PreussenElektra [2001]).

It should be noted that, according to settled case-law, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 107(1) TFEU (see  Case C 387/92 Banco Exterior de España [1994; Case C 6/97 Italy v Commission [1999]; and Case C-482/99 France v Commission [2002]).

In particular, measures which, in various forms, mitigated the burdens normally included in the budget of an undertaking, and which therefore, without being subsidies in the strict meaning of the word, were similar in character and had the same effect, were considered to be aid (see Case C-75/97 Belgium v Commission [1999]; and Case C-156/98 Germany v Commission [2000]).

The Court pointed out that it was settled case-law that Article 107(1) TFEU defined measures of State intervention in relation to their effects (Case C-124/10 P Commission v EDF and Others [2012]).

The Court, importantly, held that as State interventions took various forms and had to be assessed in relation to their effects, it could not be excluded, that several consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention.

According to the Court, that could be the case in particular where consecutive interventions, especially having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, were so closely linked to each other that they were inseparable from one another (see, to that effect, Case 72/79 Commission v Italy [1980]).

The Court therefore concluded that, having found that it was necessary to identify a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget, closely linked and corresponding to, or having as a counterpart, a specific advantage deriving either from the announcement of 4 December 2002 or from the shareholder loan offer, the General Court erred in law by applying a test that immediately excludes those State interventions, depending on their links with one another and their effects, from being regarded as a single intervention.

The Court added that State intervention capable of both placing the undertakings which it applied to in a more favourable position than others and creating a sufficiently concrete risk of imposing an additional burden on the State in the future, might place a burden on the resources of the State.  In particular, the Court found reiterated advantages given in the form of a State guarantee can entail an additional burden on the State (see Case C-275/10 Residex Capital IV [2011]).

The Court concluded that for the purposes of establishing the existence of State aid, the Commission must establish a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget (see, to that effect, Case C-279/08 P Commission v Netherlands [2011 ).

However, contrary to what the General Court found, it was not necessary that such a reduction, or even such a risk, should correspond or be equivalent to that advantage, or that the advantage had as its counterpoint such a reduction or such a risk, or that it is of the same nature as the commitment of State resources from which it derives.

The Court also found that the shareholder loan constitutes an advantage within the meaning of Article 107(1) TFEU.  As to the condition relating to the commitment of State resources as included in Article 107(1) TFEU, the Court held that the shareholder loan concerned the opening of a credit line of EUR 9 billion. The Court held that “while, admittedly, it was true that FT did not sign the loan agreement sent to it, the beneficiary could have signed it at any time, thereby acquiring the right to obtain immediate payment of the sum of EUR 9 billion.”

Text of Judgment

 

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Honorable Mention jury Dutch Social Media Award.

Last Friday, Dutch Publisher SDU awarded the Gouden Zandloper (Golden Hourglass) award on Social Media. The jury rapport explicitly mentions this weblog, describing it as one of the most popular websites on EU Law.

 

Link (in Dutch:) http://www.advocatie.nl/axon-wint-gouden-zandloper-social-media-beleid-het-juryrapport

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Joined Cases C‑186/11 and C‑209/11, Stanleybet et al.

Court questioning legality Opap’s Greek Gambling Monopoly, for national Court to determine whether aimed at restricting supply of games of chance or combating criminality linked to games of chance

>> Stanleybet, William Hill and Sportingbet were companies with their registered office in the United Kingdom, where they held bookmakers’ licences.

In Greece, under Law No 2433/1996 and Law No 2843/2000, and under a contract concluded by OPAP and the Greek State in 2000, the exclusive right to run, organise and operate games of chance and betting forms with fixed or variable winnings was granted to OPAP for a period of 20 years ending in 2020.

OPAP, which started trading as a public corporation wholly owned by the Greek State, was converted into a public limited company in 1999 and listed on the Athens Stock Exchange in 2001, with the State retaining 51% of OPAP’s shares at the time of the stock exchange listing.

In 2005, the State decided to become minority shareholder and reduce its holdings to 34% of the shares in OPAP. The Greek State continued to supervise OPAP, however, especially by approving the regulations governing its activities and by monitoring the procedure applied in order to organise the games. In the view of the majority of the members of the national court, however, OPAP was supervised only superficially by the State.

OPAP had expanded its activities in Greece and abroad. Thus, as at 31 March 2005, OPAP had already established 206 agencies in Cyprus, pursuant to an agreement between Greece and Cyprus. In order to develop its activities in Cyprus, OPAP incorporated the company OPAP Kiprou Ltd. in 2003 and the company OPAP International Ltd. in 2004.

OPAP fixed the maximum amount of the bet and winnings per form and not by player. It enjoyed preferential conditions for the advertising of the games of chance it organised because it might use up to 10% of the advertising space in State and municipal stadia and gymnasia free of charge.

Stanleybet sought annulment of the Greek authorities’ tacit rejection of its application to be granted permission to provide sport betting services in Greece. Two other actions with a similar subject-matter were brought before the national court, by William Hill and by Sportingbet, the latter having also sought permission to organise games of chance already existing on the Greek market. OPAP was granted leave to intervene in those proceedings.

The national court asked in essence whether Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which granted the exclusive right to run, manage, organise and operate games of chance to a single entity inasmuch as, whilst the objective of the national legislation was either to restrict the supply of games of chance or to support the effort to combat criminality linked to games of chance, the undertaking on which the right had been conferred pursued a commercial policy of expansion.

The Court first of all stressed that it was common ground that a Member State’s legislation, such as that described by the national court, constituted a restriction on the freedom to provide services guaranteed by Article 49 EC or on the freedom of establishment guaranteed by Article 43 EC inasmuch as it provided for a monopoly for OPAP and prohibited providers such as Stanleybet, William Hill and Sportingbet, established in another Member State, from offering games of chance on Greek territory (see e.g. Joined Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07 Stoß and Others [2010])

The Court held that it was necessary, however, to determine whether such a restriction might be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for under Articles 45 EC and 46 EC, which were applicable in the area of freedom to provide services by virtue of Article 55 EC, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (see e.g. Case C-470/11 Garkalns [2012]).

The Court had consistently held that restrictions on betting and gaming might be justified by overriding requirements in the public interest, such as consumer protection and the prevention of both fraud and incitement to squander money on gambling. The Court reiterated that legislation on games of chance was one of the areas in which there were significant moral, religious and cultural differences between the Member States. In the absence of Community harmonisation in the field, it was for each Member State to determine in those areas, in accordance with its own scale of values, what was required in order to ensure that the interests in question were protected (Case C-42/07, Liga Portuguesa de Futebol Profissional and Bwin International [2009]).

The Court held that a Member State seeking to ensure a particularly high level of protection might be entitled to take the view that it was only by granting exclusive rights to a single entity which was subject to strict control by the public authorities that it could tackle the risks connected with the betting and gaming sector and pursue the objective of preventing incitement to squander money on gambling and combating addiction to gambling with sufficient effectiveness (see Case C-212/08 Zeturf [2011]).

The Court held that it provided that they complied with the requirement of proportionality, the national public authorities might indeed legitimately consider that the fact that, in their capacity as overseer of the body holding the monopoly, they would have additional means of influencing the latter’s conduct outside the statutory regulating and monitoring mechanisms was likely to secure for them a better command over the supply of games of chance and better guarantees that implementation of their policy would be effective than in the case where those activities are carried on by private operators in a situation of competition, even if the latter are subject to a system of authorisation and a regime of supervision and penalties

As regards the first objective, that of restricting the supply of games of chance it was for the national courts to ensure, in the light, in particular, of the actual rules for applying the restrictive legislation concerned, that that legislation genuinely met the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner

The national court might legitimately take account of the various features of the legislative framework governing OPAP and the manner in which it operated in practice, as outlined in the order for reference, such as the fact that OPAP enjoyed certain rights and privileges for advertising the games of chance it organises, or the fact that the maximum bet was fixed per form and not per player. It is for that court, however, to determine whether those features, as well as any other relevant aspects, were such as to lead to the conclusion that the legislation at issue in the main proceedings did not satisfy the requirements referred to in the preceding paragraph.

As regards the second objective, that of combating criminality linked to games of chance, it was also for the national court to determine, in the light of, inter alia, the development of the national market for games of chance, whether the State controls to which the activities of the undertaking holding the monopoly were subject were actually implemented in the consistent and systematic pursuit of the objectives sought by the establishment of the system whereby exclusive rights were conferred on such an undertaking.

It should be borne in mind in that regard that the effectiveness of those State controls must be assessed by the national court in the light of the fact that a measure as restrictive as a monopoly must, inter alia, be subject to strict control by the public authorities.

Although some of the aspects highlighted in the order for reference, including in particular the fact that OPAP was a listed public limited company and the finding that the Greek State’s supervision of OPAP was merely superficial, tend to suggest that the requirements referred to above might not be satisfied, it is nevertheless for the national court to determine whether that was the case by taking into account those aspects and also any others which might turn out to be relevant in that perspective.

Text of judgment

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Case C‑334/12 RX-II, Jaramillo et al v. EIB

Court further defines scope of Article 47 of the Charter

>> Since 1 January 2007 the salary statements of the EIB members of the staff were no longer produced in their traditional paper format but in electronic format, but were entered in the EIB’s ‘Peoplesoft’ computer system each month and could thus be accessed by every member of staff from his office computer. On Saturday 13 February 2010 the salary statements for February 2010 were entered in the ‘Peoplesoft’ system. Those statements, as compared with the statements for January 2010, showed an increase in the rate of contributions to the pension scheme, an increase resulting from decisions taken by the EIB as part of the reform of its staff pension scheme.

The members of Staff concerned sought, first, annulment of their February 2010 salary statements and, secondly, an order that the EIB pay a symbolic EUR 1 by way of compensation for the non-material harm suffered by them.

By the order of 4 February 2011 the Tribunal dismissed the action as being inadmissible. It held, in essence, that since the time-limit for bringing an action had expired on 25 May 2010, the application by the Members of Staff concerned, received electronically by the Registry of that Tribunal on 26 May at 00.00 hours, was out of time and, therefore, inadmissible. (see: Case F‑34/10 Arango Jaramillo and Others v EIB [2011]).

This judgment was confirmed by the General Court. (see: Case T‑234/11 P Arango Jaramillo and Others v EIB [2012]). Following the proposal by the First Advocate General that the judgment of 19 June 2012 be reviewed, the Special Chamber, provided for in Article 123b of the Rules of Procedure of the Court of Justice on 12 July 2012 held that there should be a review of that judgment in order to determine whether it affected the unity or consistency of European Union law. (Case C‑334/12 RX Arango Jaramillo and Others v EIB (2012)). The Special Chamber identified two more specific grounds for the review. First, it held that it was necessary to determine whether the General Court, by finding, like the Civil Service Tribunal, that, when assessing the reasonableness of the period within which an action was brought by EIB members of staff for annulment of an EIB measure adversely affecting them, the Courts of the European Union did not have to take account of the particular circumstances of each case, adopted an interpretation which was consistent with the case‑law of the Court that the reasonableness of a time-limit which was not laid down by primary or secondary European Union law must be assessed by reference to the particular circumstances of each case.

Secondly, it was necessary to determine whether, by ruling that the consequence of exceeding the time‑limit for bringing an action, which was not set by primary or secondary European Union law, was that the action was time-barred, the General Court’s approach was such as to undermine the right to an effective legal remedy as provided for in Article 47 of the Charter.

The Special Chamber held that if it were to be held that the judgment of 19 June 2012 was vitiated by an error of law, it would be necessary to examine whether that judgment affected the unity or consistency of European Union law and, if so, to what extent.

In the present judgment, the Court held that no provision of European Union law laid down a time-limit within which a member of staff of the EIB must bring an action for annulment of a measure adopted by the EIB which adversely affected him.

The Court held that where the duration of a procedure was not set by a provision of European Union law, the ‘reasonableness’ of the period of time taken by the institution to adopt a measure at issue was to be appraised in the light of all of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties to the case (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002]).

The Court added that the duty on the institutions and the bodies of the European Union, in the context of administrative procedures, to allow for reasonable periods of time, which could not be determined by reference to precise maximum limits determined in an abstract manner, had been confirmed subsequently by the Court (see, inter alia, Case C‑293/05 Commission v Italy [2006] and Case C‑321/09 P Greece v Commission [2011]).

The Court held that it was appropriate to apply the concept of a ‘reasonable period’ in the same way to an action or an application in respect of which no provision of European Union law had prescribed the period of time within which that action or that application must be brought. The Court stressed that in both cases, the Courts of the European Union must take into consideration the particular circumstances of the case.

The Court held that as regards the question whether the General Court undermined the right to an effective remedy by ruling that the consequence of exceeding the reasonable period within which the members of staff were to bring an action was that the action was time-barred, the principle of effective judicial protection was a general principle of European Union law to which expression was now given by Article 47 of the Charter (see Case C‑389/10 P KME Germany and Others v Commission [2011]).

The Court, referring to the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, pointed out that the first paragraph of Article 47 of the Charter was based on Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the second paragraph of Article 47 corresponds to Article 6(1) of the ECHR.

The Court held that according to the case-law of the European Court of Human Rights, the ‘right to a court’ was not absolute. The exercise of that right was subject to limitations, inter alia as to the conditions for the admissibility of an action. The Court held that while the persons concerned should expect those rules to be applied, the application of such rules should nevertheless not prevent litigants from availing themselves of an available legal remedy (see, to this effect judgment of the European Court of Human Rights Anastasakis v Greece, No 41959/08, §24).

The Court held that in the present case case, in which the time-limit for the EIB members of staff bringing an action against the measures adversely affecting them had not been set beforehand by a rule of European Union law, nor limited under Article 52(1) of the Charter, it was common ground that the members of staff concerned, in the light of the case‑law of the Court relating to the application of the concept of a ‘reasonable period’, were entitled to expect that the General Court would simply apply that case-law in order to decide on the admissibility of that action rather than impose a pre-determined limitation period on their action.

That distortion of the concept of a reasonable period meant the members of staff concerned were unable to defend their rights relating to their remuneration by means of an effective action before a tribunal in accordance with the conditions laid down by Article 47 of the Charter.

The Court concluded that the General Court must be considered to have misinterpreted the concept of a ‘reasonable period’ and consequently, to have fundamentally altered the very essence of the concept of a reasonable period by holding that, in the present case, ‘a rule of law’ had to be applied, where the strict application of that rule produced an outcome that was contrary to the outcome emerging from the General Court’s own case-law.

Whether unity or consistency of EU law affected

The Court pointed out that the first paragraph of Article 62b of the Statute of the Court of Justice of the European Union provides that if the Court of Justice finds that the decision of the General Court affects the consistency of European Union law, it is to refer the case back to the General Court, which is to be bound by the points of law decided by the Court of Justice. In referring the case back, the Court of Justice may also state which of the effects of the decision of the General Court are to be considered definitive in respect of the parties to the litigation. In exceptional cases, the Court of Justice can itself give final judgment if, having regard to the result of the review, the outcome of the proceedings flows from the findings of fact on which the decision of the General Court was based.

The Court held that, in the present case, given that the consistency of European Union law was affected as a result of a misinterpretation of the concept of a ‘reasonable period’ and of the failure to take full account of the principle of effective judicial protection, the definitive answer to the question of the admissibility of the action brought by the members of staff concerned did not flow from the findings of fact on which the judgment of 19 June 2012 was based and consequently, the Court of Justice could not itself give final judgment in the proceedings, in accordance with the third sentence of the first paragraph of Article 62b of the Statute of the Court of Justice.

It was, therefore, according to the Court necessary to refer the case back to the General Court and not, as the members of staff concerned claimed, back to the Civil Service Tribunal, for the purposes of the appraisal, in the light of all the circumstances of the particular case, of the reasonableness of the period within which those members of staff brought their action before the Civil Service Tribunal.

Text of judgment

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Case C‑399/11, Melloni

Court further defines scope of Article 53 of Charter

>> This request for a preliminary ruling concerned the  validity of Article 4a(1) of Council Framework Decision 2002/584. The referring Court also asked the Court to examine, if necessary, the issue of whether a Member State might refuse to execute a European arrest warrant on the basis of Article 53 of the Charter of Fundamental Rights of the European Union (‘the Charter’) on grounds of infringement of the fundamental rights of the person concerned guaranteed by the national constitution.

The second paragraph of Article 47 of the Charter provides:

‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.’

Article 53 of the Charter states:

‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the [European] Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.’

By order of 1 October 1996, the First Section of the Sala de lo Penal of the Audiencia Nacional (Criminal Division of the High Court in Spain) authorised the extradition to Italy of Mr Melloni, in order for him to be tried there in relation to the facts set out in arrest warrants Nos 554/1993 and 444/1993, issued on 13 May and 15 June 1993 respectively by the Tribunale di Ferrara (District Court, Ferrara) (Italy). After being released on bail of ESP 5 000 000, which he provided on 30 April 1996, Mr Melloni fled, so that he could not be surrendered to the Italian authorities.

Following Mr Melloni’s arrest by the Spanish police on 1 August 2008, the Juzgado Central de Instrucción (Central Investigating Court) No 6 (Spain), by order of 2 August 2008, resolved to refer the matter of European arrest warrant No 271/2004 to the First Section of the Sala de lo Penal of the Audiencia Nacional.

Mr Melloni opposed surrender to the Italian authorities, contending, first, that at the appeal stage he had appointed another lawyer, revoking the appointment of the two previous lawyers, despite which notice was still being given to them. Second, he contended that under Italian procedural law it was impossible to appeal against sentences imposed in absentia, for which reason the execution of the European arrest warrant should, where appropriate, be made conditional upon Italy’s guaranteeing the possibility of appealing against that judgment.

By order of 12 September 2008, the First Section of the Sala de lo Penal of the Audiencia Nacional authorised surrender of Mr Melloni to the Italian authorities. Mr Melloni filed a ‘recurso de amparo’ (petition for constitutional protection) against that order before the Tribunal Constitucional (Constitutional Court). That Court inter alia asked  whether Article 4a(1) of Framework Decision 2002/584 was compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter and from the rights of the defence guaranteed under Article 48(2) of the Charter.

Regarding the scope of the right to an effective judicial remedy and to a fair trial provided for in Article 47 of the Charter, and the rights of the defence guaranteed by Article 48(2) thereof, the Court first of all observed that, although the right of the accused to appear in person at his trial is an essential component of the right to a fair trial, that right was not absolute (see, inter alia, Case C‑619/10 Trade Agency [2012]).

The accused might waive that right of his own free will, either expressly or tacitly, provided that the waiver was established in an unequivocal manner, was attended by minimum safeguards commensurate to its importance and did not run counter to any important public interest. In particular, violation of the right to a fair trial had not been established, even where the accused did not appear in person, if he was informed of the date and place of the trial or was defended by a legal counsellor to whom he had given a mandate to do so.

The Court stressed that this interpretation of Articles 47 and 48(2) of the Charter was in keeping with the scope that had been recognised for the rights guaranteed by Article 6(1) and (3) of the ECHR by the case-law of the European Court of Human Rights (see, inter alia, ECtHR, Medenica v. Switzerland, no. 20491/92, § 56 to 59, ECHR 2001-VI; Sejdovic v. Italy [GC], no. 56581/00, § 84, 86 and 98, ECHR 2006-II; and Haralampiev v. Bulgaria, no. 29648/03, § 32 and 33, 24 April 2012).

The Court furthermore pointed out that, as indicated by Article 1 of Framework Decision 2009/299, the objective of the harmonisation of the conditions of execution of European arrest warrants issued for the purposes of executing decisions rendered at the end of trials at which the person concerned had not appeared in person, effected by that framework decision, was to enhance the procedural rights of persons subject to criminal proceedings whilst improving mutual recognition of judicial decisions between Member States.

The Court thus found Article 4a(1) of Framework Decision 2002/584 to be compatible with the requirements under Articles 47 and 48(2) of the Charter.

As mentioned, the national court also asked whether Article 53 of the Charter must be interpreted as allowing the executing Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.

The Court stated that the interpretation envisaged by the national court at the outset was that Article 53 of the Charter gave general authorisation to a Member State to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard was higher than that deriving from the Charter and, where necessary, to give it priority over the application of provisions of EU law.

The Court pointed out that such an interpretation would, in particular, allow a Member State to make the execution of a European arrest warrant issued for the purposes of executing a sentence rendered in absentia subject to conditions intended to avoid an interpretation which restricted or adversely affected fundamental rights recognised by its constitution, even though the application of such conditions was not allowed under Article 4a(1) of Framework Decision 2002/584.

The Court stressed that such an interpretation of Article 53 of the Charter would undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which were fully in compliance with the Charter where they infringed the fundamental rights guaranteed by that State’s constitution.

The Court reiterated that by virtue of the principle of primacy of EU law rules of national law, even of a constitutional order, could not be allowed to undermine the effectiveness of EU law on the territory of that State (see Case 11/70 Internationale Handelsgesellschaft [1970], and Case C‑409/06 Winner Wetten [2010])

The Court held that allowing a Member State to avail itself of Article 53 of the Charter to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under Framework Decision 2009/299, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing Member State, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purported to uphold and would, therefore, compromise the efficacy of that framework decision.

The Court thus concluded Article 53 of the Charter must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.

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Case C-617/10, Åkerberg Fransson

Court defines scope of application of Charter of Fundamental Rights, reiterating EU law not governing relationship between ECHR and legal systems of Member States.

>> Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), provides

‘No one shall be liable to be tried or punished again in criminal proceedings for an offense for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’

Article 51 defines the Charter’s field of application in the following terms:

‘1.      The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2.      The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’

The Swedish tax authorities accused Mr Åkerberg Fransson of having infringed his declaration obligations with regard to tax in 2004 and 2005, which resulted in a loss of revenue from various taxes. By decision of 24 May 2007, the Swedish tax authorities imposed tax penalties upon Mr Åkerberg Fransson for the 2004 and 2005 tax years. 

In 2009 criminal proceedings were brought against Mr Åkerberg Fransson in the Haparanda tingsrätt. The Public Prosecutor’s Office accused him of having committed an offense of tax evasion (in respect of 2004 and 2005) punishable, under Swedish law, by a term of imprisonment of up to six years.

The Swedish court wondered whether the criminal charges against Mr Åkerberg Fransson must be dismissed on the ground that he had already been punished for the same acts, as a result of the  Swedish system of imposing tax surcharges and examining liability for tax offenses in separate proceedings.

The Court reiterated that the Charter’s field of application so far as concerned action of the Member States was defined in Article 51(1) thereof (on this provision, see also this article in the Common Market Law Review I wrote in 2005).

The Court stressed that the fundamental rights guaranteed in the legal order of the European Union were applicable in all situations governed by European Union law, but not outside such situations.

The Court reiterated that it had no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. The Court held that, on the other hand, if such legislation fell within the scope of European Union law, it must, when requested to give a preliminary ruling, provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation was compatible with the fundamental rights the observance of which the Court ensured (see inter alia, Case C‑260/89 ERT [1991]; Case C‑299/95 Kremzow [1997] ; Case C-309/96 Annibaldi [2007]; Case C-94/00 Roquette Frères [2002] ; Case C-349/07 Sopropé [2008] ; and Case C-256/11 Dereci and Others [2011] ; and see Case C-27/11 Vinkov [2012] , on which I wrote this post).

The Court held that the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation fell within the scope of European Union law, situations could not exist which were covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entailed applicability of the fundamental rights guaranteed by the Charter. Where, on the other hand, a legal situation did not come within the scope of European Union law, the Court did not have jurisdiction to rule on it and any provisions of the Charter relied upon could not, of themselves, form the basis for such jurisdiction (see the order in Case C-466/11 Currà and Others [2012] ).

The Court referred in this respect to the considerations underlying Article 6(1) TEU, according to which the provisions of the Charter were not to extend in any way the competences of the European Union as defined in the Treaties. Likewise, the Charter, pursuant to Article 51(2) thereof, does not extend the field of application of European Union law beyond the powers of the European Union or establish any new power or task for the European Union, or modify powers and tasks as defined in the Treaties.

The Court found that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings had been or was subject because the information concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1) and 273 of Directive 2006/112 (previously Articles 2 and 22 of the Sixth Directive) and of Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1) of the Charter.

The Court held that the fact that the national legislation upon which those tax penalties and criminal proceedings were founded had not been adopted to transpose Directive 2006/112 could not call that conclusion into question, since its application was designed to penalize an infringement of that directive and was therefore intended to implement the obligation imposed on the Member States by the Treaty to impose effective penalties for conduct prejudicial to the financial interests of the European Union.

The Court however stressed that where a court of a Member State was called upon to review whether fundamental rights were complied with by a national provision or measure which, in a situation where action of the Member States was not entirely determined by European Union law, implemented the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remained free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law were not thereby compromised (see, in relation to the latter aspect, Case C-399/11 Melloni [2013], on which I wrote this post).

The Court thus found that it had jurisdiction to answer the questions referred and to provide all the guidance as to interpretation needed in order for the referring court to determine whether the national legislation was compatible with the ne bis in idem principle laid down in Article 50 of the Charter.

The Court inter alia held that the ne bis in idem principle laid down in Article 50 of the Charter did not preclude a Member State from imposing successively, for the same acts of non-compliance with declaration obligations in the field of VAT, a tax penalty and a criminal penalty in so far as the first penalty was not criminal in nature, a matter which was for the national court to determine.

The referring Court also asked the Court whether a national judicial practice was compatible with European Union law if it made the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the ECHR and by the Charter conditional upon that infringement being clear from the instruments concerned or the case-law relating to them.

The Court held that as regards the conclusions to be drawn by a national court from a conflict between national law and the ECHR, it was to be remembered that whilst, as Article 6(3) TEU confirmed, fundamental rights recognized by the ECHR constituted general principles of the European Union’s law and whilst Article 52(3) of the Charter required rights contained in the Charter which corresponded to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter did not constitute, as long as the European Union had not acceded to it, a legal instrument which had been formally incorporated into European Union law.

Consequently, the Court reiterated that European Union law did not govern the relations between the ECHR and the legal systems of the Member States, nor did it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law (see Case C-571/10 Kamberaj [2012], on which I wrote this post)

The Court held that, as regards, next, the conclusions to be drawn by a national court from a conflict between provisions of domestic law and rights guaranteed by the Charter,  a national court which was called upon, within the exercise of its jurisdiction, to apply provisions of European Union law was under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it was not necessary for the court to request or await the prior setting aside of such a provision by legislative or other constitutional means (Case 106/77 Simmenthal [1978]; Case C-314/08 Filipiak [2009]; and Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010]).

The Court held that European Union law precluded a judicial practice which made the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter conditional upon that infringement being clear from the text of the Charter or the case-law relating to it, since it withheld from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice, whether that provision was compatible with the Charter.

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Case C‑607/11, ITV et al v. TVCatchup

Television broadcasters may prohibit retransmission of their programmes by another company via the internet

>> TVCatchup Ltd (‘TVC’) offered an internet television broadcasting service. This service permitted its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts.

TVC ensured that its subscribers could obtain access only to content which they were already legally entitled to watch in the United Kingdom by virtue of their television license. The terms to which users must agree included the possession of a valid TV license and a restriction of use of TVC services to the United Kingdom alone. The TVC website had the facility to authenticate the user’s location and thereby to refuse access where the conditions imposed on users were not satisfied.

The claimants in the main proceedings were commercial television broadcasters who owned copyright under national law in the television broadcasts themselves and in films and other items which were included in their broadcasts. They were funded by advertising carried in their broadcasts, and therefore took exception to the distribution by TVC over the internet, substantially in real time, of their television broadcasts. They had for that reason brought proceedings against TVC, alleging, inter alia, that there was a communication to the public which was prohibited both by national law and by the Information Society Directive (Directive 2001/29).

The referring court asked, in essence, whether the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as meaning that it covered a retransmission of the works included in a terrestrial television broadcast:

–        where the retransmission was made by an organization other than the original broadcaster,

–        by means of an internet stream made available to the subscribers of that other organization who might receive the retransmission by logging on to its server,

–        on the assumption that those subscribers were within the area of reception of the terrestrial television broadcast and might lawfully receive the broadcast on a television receiver.

The Court first of all held that the principal objective of Directive 2001/29 was to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It followed that ‘communication to the public’ must be interpreted broadly (see Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others (2011)).

The Court noted that Directive 2001/29 did not define the concept of ‘communication’ exhaustively. Thus, the meaning and scope of that concept must be defined in the light of the context in which it occurred and also in the light of its objective.

The Court found that given that the making of works available through the retransmission of a terrestrial television broadcast over the internet used a specific technical means different from that of the original communication, that retransmission must be considered to be a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29. Consequently, such a retransmission could not be exempt from authorization by the authors of the retransmitted works when these were communicated to the public.

The Court admitted that it followed from the case-law of the Court that a mere technical means to ensure or improve reception of the original transmission in its catchment area did not constitute a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29 (see Joined cases C-431/09 and C-432/09, Airfield and Canal Digitaal, (2011)). Thus, the intervention of such a technical means must be limited to maintaining or improving the quality of the reception of a pre-existing transmission and could not be used for any other transmission.

The Court found that in the present case, however, the intervention by TVC consisted in a transmission of the protected works at issue which was different from that of the broadcasting organization concerned. TVC’s intervention was in no way intended to maintain or improve the quality of the transmission by that other broadcasting organization. In those circumstances, that intervention could not be considered to be a mere technical means. Moreover, in order to be categorized as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’.

The Court reiterated that the term ‘public’ in Article 3(1) of Directive 2001/29 referred to an indeterminate number of potential recipients and implied, moreover, a fairly large number of persons (see Case C‑306/05 SGAE (2006)).

The Court held that the retransmission in question was aimed at an indeterminate number of potential recipients and implied a large number of persons. Consequently, the Court found that, by the retransmission in question, the protected works were indeed communicated to a ‘public’ within the meaning of Article 3(1) of Directive 2001/29.

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Case C‑420/11, Leth

Court holds that not carrying out environmental impact assessment of project in breach of EU law, does not by itself render State liable for purely pecuniary damage

>> Since the accession of Austria to the European Union, on 1 January 1995, the authorities of the defendants in the main proceedings had, without carrying out environmental impact assessments, consented to and completed several projects relating to the development and extension of Vienna-Schwechat airport. By decision of 21 August 2001, the Minister-President of Land Niederösterreich expressly stated that no environmental impact assessment procedure was necessary in relation to the continued development and certain extensions of that airport.

At the time when those projects were carried out, Ms Leth was already living within the security zone of that airport. She brought an action against the Austrian State and Land Niederösterreich (the State of Lower Austria) before the Austrian courts, in which she sought payment of €120,000 as compensation for the decrease in the value of her house, resulting from, in particular, aircraft noise, as well as a declaration that the Austrian State and Land Niederösterreich would be liable for any future damage. She based those claims on, inter alia, a breach of the EIA Directive (Directive 85/337), which requires that an assessment be carried out as to the environmental impact of public or private projects that were liable to have a major effect in that regard.

The referring court inter alia asked whether Article 3 of Directive 85/337 must be interpreted as meaning that the fact that an environmental impact assessment had not been carried out, in breach of Directive 85/337, conferred on an individual a right to compensation for pecuniary damage caused by a decrease in the value of his property resulting from the environmental effects of the project under examination.

The Court reiterated that an individual might, where appropriate, rely on the duty to carry out an environmental impact assessment under Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4 thereof (see Case C‑201/02 Wells [2004]) .

The Court held that the EIA  directive thus conferred on the individuals concerned a right to have the environmental effects of the project under examination assessed by the competent services and to be consulted in that respect.

The Court held that the prevention of pecuniary damage, in so far as that damage was the direct economic consequence of the environmental effects of a public or private project, was covered by the objective of protection pursued by Directive 85/337. The Court found that as such economic damage was a direct consequence of such effects, it must be distinguished from economic damage which did not have its direct source in the environmental effects and which, therefore, was not covered by the objective of protection pursued by that directive, such as, inter alia, certain competitive disadvantages.

The Court reiterated that under the principle of sincere cooperation laid down in Article 4(3) TEU, Member States were required to nullify the unlawful consequences of a breach of European Union law. In order to remedy the failure to carry out an environmental impact assessment of a project within the meaning of Article 2(1) of Directive 85/337, it was for the national court to determine whether it was possible under national law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental impacts, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agreed, whether it was possible for the latter to claim compensation for the harm suffered (see Case C‑201/02 Wells [2004]) .

The Court held that the detailed procedural rules that were applicable were a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they were not less favorable than those governing similar domestic situations (principle of equivalence) and that they did not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (principle of effectiveness).

The Court argued that it was on the basis of the rules of national law on liability that the Member State must make reparation for the consequences of the loss or damage caused, provided that the conditions for reparation of that loss or damage laid down by national law ensure compliance with the principles of equivalence and effectiveness recalled in the previous paragraph (see Joined Cases C-46/93 and C‑48/93 Brasserie du Pêcheur and Factortame [1996]).

The Court however stressed that European Union law conferred on individuals, under certain conditions, a right to compensation for damage caused by breaches of European Union law. It held that the principle of State liability for loss or damage caused to individuals was a result of breaches of European Union law for which the State could be held responsible was inherent in the system of the treaties on which the European Union was based (see Case C‑429/09 Fuß [2010]).

The Court repeated that individuals who hadbeen harmed had a right to reparation if three conditions were met: the rule of European Union law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between that breach and the loss or damage sustained by the individuals (see, for instance, C‑568/08 Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others [2010] ).

The Court held that those three conditions were necessary and sufficient to found a right in individuals to obtain redress on the basis of European Union law directly, although this did not mean that the Member State concerned could not incur liability under less strict conditions on the basis of national law. It was, in principle, for the national courts to apply the criteria, directly on the basis of European Union law, for establishing the liability of Member States for damage caused to individuals by breaches of European Union law, in accordance with the guidelines laid down by the Court for the application of those criteria (see Case C‑446/04 Test Claimants in the FII Group Litigation [2006]).

The Court thus summarized that the existence of a direct causal link between the breach in question and the damage sustained by the individuals was, in addition to the determination that the breach of European Union law was sufficiently serious, an indispensable condition governing the right to compensation. The existence of that direct causal link was also a matter for the national courts to ascertain, in accordance with the guidelines laid down by the Court.

The Court held that to that end, the nature of the rule breached must be taken into account. In the present case, that rule prescribed an assessment of the environmental impact of a public or private project, but did not lay down the substantive rules in relation to the balancing of the environmental effects with other factors or prohibit the completion of projects which were liable to have negative effects on the environment. Those characteristics suggested that the breach of Article 3 of Directive 85/337 - in the present case, the failure to carry out the assessment prescribed by that article - did not, in principle, by itself constitute the reason for the decrease in the value of a property.

The Court thus concluded that the fact that an environmental impact assessment was not carried out, in breach of the requirements of Directive 85/337, did not, in principle, by itself confer on an individual a right to compensation for purely pecuniary damage caused by the decrease in the value of his property as a result of environmental effects. The Court added, it was ultimately for the national court, which alone has jurisdiction to assess the facts of the dispute before it, to determine whether the requirements of European Union law applicable to the right to compensation, in particular the existence of a direct causal link between the breach alleged and the damage sustained, have been satisfied.

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