EU LAW UPDATE:IN RECENT weeks the Court of Justice and the General Court have both revisited the issue of sanctions and fines in EU competition law. While the vast majority of appeals by companies against findings of infringements of competition law do not succeed on substantive grounds, companies regularly succeed in achieving a reduction in the fine.
The General Court upheld a finding by the commission regarding market sharing by E.ON and GDF in relation to the natural gas market in Germany and France but, significantly, the court reduced the fine imposed on both companies from €553 million to €320 million each.
The court held that the commission erred in calculating the fine with regard to the alleged duration of the infringement.
In a separate case before the Court of Justice, E.ON is challenging a fine imposed by the commission and upheld by the General Court regarding the alleged tampering with a seal placed across a door by the commission while conducting an investigation on E.ON’s premises into anti-competitive behaviour.
In an opinion delivered last month, advocate general Yves Bot proposed that a decision upholding the fine be annulled as the General Court had not conducted a sufficiently independent assessment regarding the calculation of the fine. In particular, sufficient attention had not been paid to assessing the proportionality of the fine.
It is clear from the above cases that any misapplication of the rules and principles regarding sanctions in competition law will lead to subsequent successful review at judicial level.
On July 12th in its judgment in Larix, the Court of Justice upheld Austrian laws preventing foreign casinos from advertising without a permit. A permit had been refused to two Slovenian casinos because the authorities thought that Slovenian laws did not provide a comparable level of protection for gamblers to that which existed in Austria. The casinos argued that this violated their freedom to provide services and that the Austrian rules were too strict.
The Court of Justice ruled that although Austria could not require that other member states’ laws be identical to its own, it could require that foreign laws ensured an equivalent level of protection if foreign casinos were to advertise in Austria. This was because the EU had not harmonised national regulations on gambling and because gambling was an area with significant moral, religious and cultural differences between member states.
A potentially significant judgment for consumer protection on the internet is Content Services Ltd, delivered on July 5th. The current directive on distance contracts requires that consumers receive or be given information on their right to withdraw from such contracts in writing or another durable medium.
The court ruled that this was breached where a website provided a link which consumers could click on if they wanted to read this information.
Declan Walsh and Francis Kieran are members of the Irish Society for European Law