European Court Of First Instance Research Articles

The Contributory Effect of GE/Honeywell on the European Commission’s Approach to Non-Horizontal Mergers

In recent times, there has been considerable development in the assessment of non-horizontal merger in the European Union (EU). This has led to the attainment of some level of consistency in the approach adopted by the EU Commission (the Commission) to weed out mergers with anti-competitive potentialities. This development can be credited substantially to courts’ jurisprudence built over time, i.e., decisions of the General Courts (European Court of First Instance ‘CFI’ and the European Court of Justice ‘ECJ’). Whilst several of the courts’ decisions can be credited directly or indirectly as contributing to the development, one case that seems to have generated and earned much of public attention is the GE/Honeywell case which climaxed in the decision of the CFI delivered on December 14, 2005. Whilst the CFI made some profound pronouncements in their decision, the jury is still out on the impact GE/Honeywell has had generally on the development of the EU approach on non-horizontal mergers. This research paper investigates the importance of the GE/Honeywell, particularly with respect to the decision of the CFI. It concludes that, as much as GE/Honeywell is not to be solely credited with the growth witnessed today, it has however contributed greatly in its own way, to the evolution of the process to what it is today, particularly with respect to foreclosure analysis.

New Trends in European Community Law

Community competition and international trade law is expanding at such a rate that more and more law is developing in increasingly less and less time. To illustrate, supplements to authoritative works on EC competition law - such as the infamous Bellamy and Child on European antitrust law - are now as long ·as the first editions of the works. The number of decisions and other important texts keeps multiplying, especially decisions by the European Court of First Instance. This poses the formidable problem of weeding out the irrelevant from the relevant, and the relevant from the very relevant. The material selected for this discussion was chosen particularly with an eye to the potential needs of Japanese business exporters. With this in mind, this article includes the most important and up-to-date issues in European antitrust and international trade law.

The Application of EC Treaty Rules to Sport: the Approach of the European Court of First Instance in the <i>Meca Medina</i> and <i>Piau</i> cases

In the Meca Medina and Piau cases, the European Court of First Instance had to deal for the first time with the application of EC Treaty provisions to sports bodies’ rules. The first of these two cases concerned anti-doping rules adopted by the IOC and the second one concerned FIFA regulations on players’ agents. According to case-law of the European Court of Justice, rules ‘of purely sporting interest’ do not fall within the scope of the EC Treaty. However, an overview of the relevant judgments shows that the test adopted since Walrave to assess the ‘purely sporting’ nature of such rules is not fully clear and has not always been applied in a consistent way, in particular after Bosman. The Meca Medina case, in which the European Court of First Instance has applied the test in a slightly different manner, opens the door to substantial simplification of future case-law. On the other hand, the European Court of First Instance has also taken the view that the test, which had only been applied up to now by the European Court of Justice to EC Treaty rules on free movement of workers and free provision of services, extends also to the rules on competition. Piau, delivered by the European Court of First Instance some months later, has confirmed the confusion that may derive from traditional case-law and has shown the risks that may derive from the adoption of divergent decisions within the European judicial system.

Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License

In 2004, the European Commission held that Microsoft had abused its dominant position under Article 82 of the European Treaty by, among other actions, refusing Sun Microsystems' request for information Sun needed to interoperate with Windows workgroup server products. The EC ordered Microsoft to disclose complete and accurate specifications for the protocols used by Windows work group servers in order to provide file, print, and group and user administration services to Windows work group networks. In September 2007, the European Court of First Instance affirmed the EC's liability ruling and its remedial order. Last December, with the active encouragement of the EC, Microsoft reached a licensing agreement for the covered protocols with Samba, an open-source development project that produces server software that emulates the behavior of Microsoft's server operating systems. The Microsoft-Samba license agreement is by far the most important tangible outcome of the European Microsoft case. The EC's other remedial order in the case, which required Microsoft to create a version of Windows without Windows Media Player, was an embarrassing failure. The Samba agreement, however, is both significant and perilous for global antitrust policy. It provides critical protocols and documentation to Microsoft's most important rival in the server market, a rival, moreover, whose development methods are focused on the analysis of those very protocols. Samba is thus more likely to put the disclosures to effective competitive use than any other licensee. It is also possible that Microsoft will derive technical and competitive benefits from the interaction with the Samba team. The long-run peril is that the disclosures will go beyond the specifications that the CFI contemplated, and will allow Samba to clone Microsoft's proprietary algorithms. That result, although reducing prices in the short run, would inhibit dynamic competition by undermining the incentives of leading firms to innovate.

Telecoms Regulation, Antitrust and Margin Squeeze: Widening the Already Wide Gap between US and EU Competition Policy?

The price-squeeze doctrine, and the discussion of up to what extent can a dominant firm discipline its rivals by means of pricing policies has lead to a wide divergence of antitrust enforcement and consequent liability rules across the Atlantic, and even between US’ agencies – the Department of Justice and the Federal Trade Commission- themselves. In two high-profile decisions – the European Commission’s July 2007 imposition of a fine on Spanish telecom incumbent Telefonica, and the European Court of First Instance’s April 2008 decision affirming a similar fine imposed earlier on telecom provider Deutsche Telekom – European authorities have recognized price squeezes as an appropriate ground for finding an abuse of dominance under Article 102 of the Treaty of Functioning of the European Union. The structure with which we are going to address these issues would follow a route which will lead us from the more general matters to the more specific questions at stake here. Consequently, after this introductory section, we will show – briefly – the main differences and similarities between US and EU enforcement policies regarding broad unilateral conduct. In the next section we turn to the specific behaviour of anticompetitive margin squeeze, as considered in both jurisdictions by jurisprudence and scholarship. This analytical framework is biased – more heavily in the EU than in the US – by the interaction between regulation and antitrust, and to such matter we devote the following section of this paper, with specific reference to the recent Telefonica and Deutsche Telekom cases. The next section in turn analyses the recent linkLine decision, from the different point of view of the Ninth Circuit, the DOJ and the FTC. Of course, after all those we pay close attention to the U.S. Supreme Court’s opinion. At this point we will ask ourselves if an integrative analytical framework (suitable for both the US and EU, and acceptable for both the DOJ and the FTC) is possible to be found. Before the concluding section, a comprehensive account of the rules governing unilateral conduct regarding margin squeeze claims is offered, to conclude – in the following section – than unfortunately the approach to margin squeeze in the three referred cases is quite diverging. Finally, some general conclusions are given in the last section of this paper.

EU Obligation to the TRIPS Agreement: EU Microsoft Decision

In Microsoft v. Commission, Microsoft was ordered by the European Court of First Instance (CFI) to license interface information to its competitors on reasonable terms and to supply a fully functioning version of Windows Personal Computer Operating System without Windows Media Player. Microsoft claimed that the remedies infringed the minimum standards of IP protection provided by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, the CFI refused to examine the TRIPS provisions, on the basis that international agreements do not prevail over primary Community law, and in any case, the TRIPS agreement permits members to restrain anti-competitive abuse of IP rights. This article examines the issues that arise from this position: first, is the Microsoft decision TRIPS compliant? Secondly, to what extent is the EU bound to its obligations under the TRIPS Agreement? The article highlights the lack of a clear-cut hierarchy of norms and illustrates how EU law is placed within a multi-layered governance structure involving national law and international law. The article finds that the EU does not engage in consistent interpretation or application of the TRIPS provisions.

Case T- 498/04- Zhejiang Xinan Chemical Industrial Group Co. Ltd v. Council of the European Union, CFI Judgment of 17 June 2009

The judgment of the European Court of First Instance in the aforementioned case seems to sharpen the requirements of the basic anti-dumping regulation that allow the Commission to deny market economy status to companies operating in non-market economy countries. The Court decided that a finding of state control within a company would not be sufficient to refuse the granting of market economy status and thus that such an assessment made by the Commission should rather be based on specific business decisions of the company at issue.

The Constitutional Limits to Security at UN and EU Level

Targeted or “smart” sanctions directed against named individuals – such as those established by Security Council Resolution 1267 (1999) in the fight against al-Qaeda – have evolved into a mainstay of the United Nations’ (UN) collective security system, particularly in the fight against terrorism. With the Kadi appeal judgment, the European Court of Justice (ECJ), overruling the Kadi and Yusuf/Al Barakaat case-law of the European Court of First Instance (CFI), has defined the relation between EU and UN law in a classic dualistic way which is usually charactistic of nation-states. The Court also sent a message to the UN, proposing a secure transfer of information as a solution for the lack of effective human rights in the UN sanctions regime. However, it is questionable whether this could sufficiently replace an independent review system at the UN level.

Case-note on Joined Cases C-402/05 P & C-415/05 PYassin Abdullah Kadi & Al Barakaat International Foundationv.Council of the European Union & Commission of the European Communities

“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”On 3 September 2008, the European Court of Justice (ECJ) handed down its long-awaited decision on the Kadi and Al Barakaat International Foundation where, setting aside the relevant judgments of the European Court of First Instance (CFI), the Court held that the Community judicature must ensure the full review of the lawfulness of all Community acts. This included those deriving from UN Security Council's resolutions, in the light of the fundamental rights as protected by Community law.

Court clarifies rules for pesticides: Case T–75/06, Bayer CropScience AG and Others v. Commission

The European Court of First Instance (“CFI” or “Court”) reached its long–awaited judgment in the endosulfan case on 9 September 2008, one of the first of a series of judgments expected in a number of similar cases pending before the CFI. The Court rejected the application to annul the European Commission’s decision not to include endosulfan in Annex I to Directive 91/414 on the placing of plant protection products on the market. Whilst the CFI’s judgment is very specific to the particular facts of the case, a number of points of general interest can be drawn from it. In particular, the judgment makes it clear that, while the exercise by the Commission of its discretion is not without check, the standard of proof required to overturn a Commission decision in an area where the Commission has a wide discretion is very high.

The Commission on Velvet: Why it Might Not Issue Article 82 Guidelines Any Time Soon

In the second quarter of 2008, many wondered: is the European Commission ever going to issue some sort of “dominance” guidelines? The fact was that, since it released a Discussion Paper two years before, a lot had happened on the dominance front. In particular, the European Court of Justice (ECJ) and the European Court of First Instance (CFI) (and together the “EC Courts”) had released five important judgments, dealing with many of the issues addressed in the Discussion Paper (and more). In all those cases, the EC Courts sided with the Commission. More importantly, they at times ratified the approach advocated in the Discussion Paper — which contained some sections clearly drafted with pending cases in mind — and in other places resorted to loose language that went even beyond the positions advocated in the Discussion Paper. This short note reviewed the case law of the EC Courts and explained why it put the Commission in such a comfortable position that it might actual withheld the publication of any binding guidelines. But then a few months after, in February 2009, it did release policy orientations on exclusionary conduct…reflecting largely the EC Courts case law, even if in reasoned and sophisticated manner.

Eroding the Primacy of the UN System of Collective Security: The Judgment of the European Court of Justice in the Cases of Kadi and Al Barakaat

This contribution examines the problem of review of targeted sanctions imposed by the Security Council in light of recent developments that occurred in the EU context. Some recent judgements of the European Court of First Instance of the European Communities (CFI) are analysed, as rendered in the cases of Yusuf and Kadi, and also more recently in the cases of the Mujaheddeen and Sison. These latter two judgements show that flaws in the targeted sanctions regimes do not only exist at UN level. The CFI also does not substantively review the listing when this listing is done by the Council of the EU. An examination of the progress made at UN level to address the procedural flaws shows that more than anything else, the real stumbling block is substantive review of intelligence information by an independent and impartial organ. The only conclusion that can be drawn from this is that we are on the way towards a better de-listing procedure, but we are not there yet.

'Cheese for Thought' for the European Court of First Instance

The name ‘grana’ is not generic and the existence of the protected designation of origin (PDO) for the ‘Grana Padano’ cheese precludes the registration of the trade mark GRANA BIRAGHI for related products.

The Security Council's Targeted Sanctions Regimes: In Need of Better Protection of the Individual

This contribution examines the problem of review of targeted sanctions imposed by the Security Council in the light of recent developments occurring in the EU context. Some recent judgments of the European Court of First Instance of the European Communities (CFI) are analysed, as rendered in the cases of Yusuf and Kadi and also in the more recent cases of the Mujaheddeen and Sison. These last two judgments show that flaws in the targeted sanctions regimes exist not only at UN level. The CFI also does not substantively review the listing when this listing is carried out by the Council of the EU. An examination of the progress made at UN level to address procedural flaws shows that, more than anything else, the real stumbling-block is the lack of a substantive review of intelligence information by an independent and impartial organ. The only conclusion that can be drawn from this is that we are on the way towards a better de-listing procedure, but are not there yet.

EU court clarifies legal privilege in European investigations

In its judgment on 17 September 2007 in Joined Cases T–125/03 and T–253/03 Akzo Nobel, the European Court of First Instance has:• rejected any extension of legal professional privilege to cover communications between a company and its in-house lawyers. This means that it is open to the European Commission to call for production of such communications during its investigations;• confirmed that privilege does protect written communications regarding the subject-matter of a Commission investigation exchanged between a client and its external lawyer after the Commission has started that investigation – and clarified that the protection applies to prior written communications prepared exclusively for the purposes of obtaining external legal advice related to the subject matter of that investigation; and• specified the procedure to be followed at Commission dawn raids where there is a dispute as to whether a document is protected by privilege.

Strong Spine, Weak Underbelly: The CFI Microsoft Decision

On September 17, 2007, the European Court of First Instance decided Microsoft's appeal of the European Commission's 2004 decision finding that Microsoft had violated Article 82 of the EC Treaty by failing to provide certain interoperability information to Sun Microsystems and by refusing to dis-integrate Windows and the Windows Media Player. In this short comment I review the CFI's decision, focusing on three ways in which the decision properly stiffens the strong spine of European competition law - its treatment of intellectual property, tying, and leveraging. The comment also discusses the EC's remedy orders in Microsoft, which I argue reveal the soft underbelly of European competition law, a soft underbelly that the European Microsoft case shares with the U.S. Microsoft settlement.

Legal Protection Against the UN-Security Council Between European and International Law: A Kafkaesque Situation?

Constitutionalism beyond the state concerns itself with the relation among various legal levels and the position of the individual in a multilevel legal system. The question how human rights are protected against international organizations who increasingly take on executive powers cannot be thoroughly answered without confronting a fundamental debate in international law theory: the constitutionalism-fragmentation debate. The European Court of First Instance as well as the European Court of Justice (ECJ) had to deal recently and are still dealing with this complex in a number of cases.

EC Aviation Scene (Major 2006 Developments)

This article gives an overview of important developments on the EC aviation scene in 2006 (up to 31 October 2006). It then examines in more detail two specific developments, namely (a) the review by the European Commission (Commission) of the block exemption exempting IATA passenger tariff conferences and slot and scheduling conferences; and (b) the judgement of the European Court of First Instance, rejecting easyJet’s appeal against the Commission’s clearance (subject to conditions) of the Air France/KLM merger.

UN Sanctions and Judicial Review

AbstractThis article analyses the way UN sanctions are implemented in the European legal order. As a basis for the analysis, the European Court of First Instance's (CFI) rulings in the Yusuf/Kadi/Ayadi 1 cases and the European Court of Human Rights's (ECrtHR) judgment in the Bosphorus 2 case are applied. The main critique of the author is that the CFI misconstrued the hierarchy of norms within the Community legal order when it argued that the EC/EU (European Community/European Union) is bound by UN Security Council resolutions in the same way as the Member States. Moreover, the conclusion drawn from this by the CFI that UN law enjoys supremacy over primary EC law is also rejected by the author. Finally, it appears that European courts are unwilling to provide judicial review against UN sanctions, which results in a lacuna concerning fundamental rights protection for affected individuals and organisations.

Precaution, Science and Jurisprudence: a Test Case

This article discusses scientific, regulatory and social problems presented when there is a lack of scientific knowledge with regard to a risk. This question arises following the European Union's recent decision to ban virginiamycin, and the ruling on that decision by the European Court of First Instance in the Pfizer Animal Health case. The authors suggest that while policy‐makers ostensibly pay due deference to scientific opinion, their final assessment of risk and application of the precautionary principle will be policy‐driven rather than based on science. When in doubt, they may prefer to eliminate risk by imposing a ban, rather than conduct a proper risk/benefit analysis that includes the damage caused by banning a potentially useful product. Ian Forrester QC practises law in Brussels and is Visiting Professor at Glasgow University. He has represented a number of pharmaceutical companies in litigation concerning the precautionary principle. Jaap C. Hanekamp PhD was a cofounder and CEO of the scientific institute of the HAN Foundation, a body dedicated to the neutral exposition of scientific data. Dr Hanekamp supervised and was co‐author of the HAN publication on antibiotic growth promoters, one of the controversies examined in this article.