1 F E B R U A R Y 2015 – 2 8 F

Contents
N
1 F
EBRUARY
EW SLETTER
N
2015 – 28 F
O
. 8
EBRUARY
2015
COMPETITION .......................................... 2
INTERNAL MARKET ................................... 3
Editorial staff
F ré d éric P u el
Ma ri e K o e hl e r de Mont b la nc
A le xa n d re L ac resse
G u il la um e P e zzal i
Ca ro li n e Ca za u x
At to rn eys -at -L aw FI DA L
He rvé J o u an j ea n
F o rme r Di r ect o r G e n e ra l at th e E U
The General Court partially annuls the Commission decision ordering Ireland
to recover the sum of 8 euros per passenger from the beneficiary airlines (T473/12 Aer Lingus Ltd v. Commission and T-500/12 Ryanair Ltd v.
Commission)
From 2009 to 2011, Ireland levied a "tax on air transport" from airlines on the basis
of the distance between the airport of departure and that of arrival. The tax was set
at two euros per passenger for flights to destinations within 300 km of Dublin and at
ten euros for all other flights.
In July 2009, Ryanair lodged a complaint with the European Commission on the
grounds that the tax constituted State aid in favor of certain companies such as Aer
Lingus, which did not pay the tax because a high proportion of their passengers
were in transit and transfer. In addition, the complaint argued that certain companies
also benefitted from State aid since they mainly operated flights to destinations not
far from Dublin.
O f Cou ns el
V irg in i e Re b e yrott e
L uc i e Ma rch a l
A le xa n d re Dio uf
By a decision of 25 July 2012, the Commission held that the tax was unlawful and
constituted State aid. Ireland was ordered to recover the aid from the airlines that
had benefitted from the lower two-euro tax rate, the Commission having specified
that the amount of the aid was eight euros per passenger (the difference between
the standard rate and the reduced rate).
At to rn eys -at -L aw
W ith t h e p artic ip at i on of :
Mo ïn e B ech i ni, L e g al a dvis or
In a judgment of 5 February 2015, the Court approved the part of the Commission’s
decision ruling that the application of differentiated rates constitutes State aid but
disapproved the part concerning the amount of the recovery. Indeed, the Court
stated that the advantage resulting from the application of a reduced rate might be
reflected, even partially, in the price of the tickets.
Accordingly, the Commission could not consider that the advantage granted
necessarily matched the sum of eight euros, and the recovery of this amount did not
restore the previous situation. The Court added that the Commission could rely on
the national authorities to precisely determine the amount of the advantage.
Ro n a n Cl em e nt
A g at he P e yro u x
T rai n e es
Frédéric PUEL
Partner, FIDAL
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COMPETITION
ANTITRUST
4 February
Commission fines broker ICAP €14.9 million for its participation in several cartels in the Yen interest rate
derivatives sector
A large fine has been imposed on UK-based broker ICAP for violating EU competition law by facilitating cartels in
the sector of Yen interest rate derivatives. In December 2013, the Commission had already imposed fines, via
settlement agreements, on several major banks after having identified seven distinct infringements, committed
between 2007 and 2010, which included information exchanges between traders of the participating banks on
trading positions and certain JPY LIBOR submissions. Having chosen not to settle, ICAP has been fined under the
normal procedure for facilitating six of the seven cartels.
MERGERS
24 February
Commission clears Liberty Global’s acquisition of controlling stake in De Vijver Media, subject to
commitments
Following an in-depth investigation, the European Commission has cleared this acquisition under EU law. The
transaction will give Liberty Global joint control over the Belgian media company De Vijer and its two television
channels “Vier” and “Vijf”. Pursuant to the commitments, De Vijer will have to offer to license its channels to
competing distributors of Telenet (owned by Liberty Global) on fair, reasonable and non-discriminatory terms.
23 February
Commission opens in-depth investigation into General Electric’s proposed acquisition of Alstom’s energy
businesses
The proposed transaction involves Alstom’s Thermal Power, Renewable Power & Grid businesses. At this
preliminary stage, the Commission has concerns regarding the market for heavy-duty gas turbines (HDGT), which
are mainly used in gas-fired power plants. The transaction would unite GE’s and Alstom’s activities on this market.
As a result, one of GE’s three main global competitors in the market would be eliminated.
14 February
The Commission opens in-depth investigation into Cargill and ADM’s chocolate activities
The European Commission has opened an in-depth investigation to assess whether Cargill’s proposed acquisition of
the industrial chocolate business of Archer Daniels Midland (ADM) complies with the EU Merger Regulation. The
preliminary investigation revealed that there were only three main suppliers of industrial chocolate in Germany and
the UK, i.e. ADM, Cargill and Barry Callebaut. Also, the low level of competitive constraint posed by other small
producers combined with the elimination of an important competitor could reduce the choice of suppliers and lead to
price increases.
13 February
Commission opens in-depth investigation into proposed acquisition by Siemens of rotating equipment
manufacturer Dresser-Rand
The Commission has concerns that the transaction would reduce competition on the markets for turbo compressor
trains, engines and turbo compressors. Furthermore, the preliminary investigation demonstrated that competitors in
the small steam turbines market do not pose a significant competitive constraint on the parties, which may lead to a
decrease in the variety of products and ultimately to higher prices.
ST ATE AI D
26 February
The reform of the financing of pensions for civil servants working at France Télécom after its conversion
into a public limited company only constitutes compatible State aid under the conditions imposed by the
Commission (Cases T-135/12 and T-385/12; France v. Commission)
The General Court has dismissed the actions of France and France Telecom against the Commission’s decision of
2011, which ruled that the reform of the financing of pensions for civil servants working at France Telecom –
consisting of equalizing the employer’s contribution paid by France Télécom with that payable by competing private
companies – constitutes State aid compatible with the internal market subject to the condition that the 1996 Law be
amended. Indeed, the Commission had found that the equalization provided for under the 1996 Law did not take into
account risks that were not common to private employees and civil servants, such as unemployment and employee
claims in the event of a court-ordered liquidation. The Court has thus reminded France that this law is compatible
with the common market provided that it takes these risks into account in determining a competitively fair rate.
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19 February
Commission opens in-depth investigation into UK public measures in favor of Lynemouth power plant
The public measures in question are aimed at supporting the conversion of the Lynemouth coal power plant into a
biomass power plant. They consist of a so-called “contract for difference” fixing a certain sales price for the
electricity. Nevertheless, the Commission has concerns that the actual rate of return could be higher than estimated
and would lead to overcompensation.
12 February
The Court holds that France has not taken all the necessary measures to recover aid granted illegally to
French fruit and vegetable producers (Case C-37/14)
Until 2002, France granted aid to fruit and vegetable producers in the framework of a plan to prevent or mitigate the
effects of supply temporarily exceeding demand. Following a complaint, the Commission found that this measure
constituted illegal State aid and, in 2009, ordered France to recover €338 million from the farmers. By this judgment,
the Court finds that France failed to take the necessary measures and to demonstrate that it was absolutely
impossible for it to implement the Commission’s decision, pointing out that the fact that certain beneficiary
companies are in difficulty or bankrupt cannot justify such failure.
12 February
Commission approves aid to alleviate social costs of closing uncompetitive coal mine in the Czech
Republic
The European Commission has approved a Czech public aid measure to assist the closure of an uncompetitive coal
mine operated by the Czech mining company OKD. The aid would facilitate the closure process and offer financial
support to the personnel working at the mine. In September 2014, Czech authorities notified the Commission of their
plan to help OKD bear the costs involved in the closure. The proposed measure will contribute to financing
severance payments to workers who have lost or will lose their jobs due to the closure, as well as to provide special
bonuses to workers who have been exposed to tasks involving health risks.
3 February
Commission opens in-depth investigation into the Belgian excess profit ruling system
The Commission has opened an investigation into a Belgian tax provision allowing group companies to significantly
reduce their corporate tax liability in Belgium via an “excess profit” tax-ruling system. This system allows
multinational entities established in Belgium to reduce their taxes by “excess profits” that allegedly result from the
advantage of being part of a multinational group. The Commission has doubts on whether this provision complies
with State aid rules, which prohibit the granting of selective advantages to only certain companies.
4 February
Commission accepts commitments from France on fiscal exemptions for certain maritime chartering
services in France
After France presented its commitments to meet the Commission’s concerns, the Commission has closed an
investigation opened in 2013 to examine whether changes to French tax rules for maritime companies were
compatible with EU State aid rules. The Commission feared that giving fiscal benefits to certain vessels sailing
under non-EU flags could alter EU maritime transport policy. France committed to ensure that French tonnage tax
payers flag at least 25% of their tonnage in the EEA.
I N T E R N AL
M AR K E T
26 February
The European Commission refers Italy to the Court of Justice for failure to recover milk levies due from
Italian producers
After issuing a formal notice to Italy in June 2013, the Commission has decided to refer Italy to the Court of Justice
of the European Union for failing to recover the levy to be paid by individual producers who exceed their milk
production quotas. Indeed, while Italy duly paid the Commission €2.3 billion for the quota overruns between 1995
and 2009, the Commission estimates that €1.7 billion still has to be recovered from individual producers or dairies.
This failure creates a distortion of competition for those producers who respected their production quotas and those
who have paid their super-levy bills.
12 February 2015
European Parliament sets up a special committee on tax rulings
The European Parliament has voted in favor of setting up a special parliamentary committee to examine EU
Member States’ "tax rulings and other measures similar in nature or effect" and to make recommendations for the
future. Composed of 45 members, the special committee will have an initial term of office of six months.
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