“Come, deal justly with me”* - no duty to deal, no price squeeze

Posted on February 26, 2009 | Filed Under communication technologies

The US Supreme Court issued its opinion in the case Bell v. Linkline on 25 Februar 2009 (see here for a previous post on that case with more details on the background). In its decision the Supreme Court now held that AT&T was not under a duty to deal according to the Sherman Act (as it had to offer wholesale DSL to its competitors due to a regulatory obligation imposed by the FCC), and therefore a price squeeze-claim could not be brought. The decision does not have an implication for the current European telecommunications and competition law, as here the concurrent application of both general competition law and sector-specific regulation is established law (again, see my previous post for further reference). And while in the oral proceedings before the Supreme Court reference to European competition law was made, the final decision now does not contain any such reference.

*) Hamlet, Prince of Denmark, Act II, Scene 2

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ECJ: data retention directive “relates predominantly to the functioning of the internal market”

Posted on February 11, 2009 | Filed Under communication technologies

Yesterday’s judgment of the European Court of Justice in the Case C-301/06 Ireland v. Parliament and Council did not bring any big surprises, after advocate general Bot had already argued against anulment of the data retention directive 2006/24/EC (see earlier post here). The Court followed the advocate general’s opinion, stressing two points:

  1. “legislative and technical disparities between the national provisions governing the retention of data by service providers” exist, they have “significant economic implications for service providers in so far as they may involve substantial investment and operating costs”, and “it was entirely foreseeable that the Member States which did not yet have rules on data retention would introduce rules in that area which were likely to accentuate even further the differences between the various existing national measures.”
    For the Court “it is apparent that the differences between the various national rules adopted on the retention of data relating to electronic communications were liable to have a direct impact on the functioning of the internal market and that it was foreseeable that that impact would become more serious with the passage of time. Such a situation justified the Community legislature in pursuing the objective of safeguarding the proper functioning of the internal market through the adoption of harmonised rules.”
  2. the “provisions of Directive 2006/24 are essentially limited to the activities of service providers and do not govern access to data or the use thereof by the police or judicial authorities of the Member States. … Directive 2006/24 thus regulates operations which are independent of the implementation of any police and judicial cooperation in criminal matters. It harmonises neither the issue of access to data by the competent national law-enforcement authorities nor that relating to the use and exchange of those data between those authorities. Those matters, which fall, in principle, within the area covered by Title VI of the EU Treaty, have been excluded from the provisions of that directive, as is stated, in particular, in recital 25 in the preamble to, and Article 4 of, Directive 2006/24. It follows that the substantive content of Directive 2006/24 is directed essentially at the activities of service providers in the relevant sector of the internal market, to the exclusion of State activities coming under Title VI of the EU Treaty. In light of that substantive content, Directive 2006/24 relates predominantly to the functioning of the internal market.”
    The Court also rejected the comparison drawn by Ireland to the judgement in the case concerning the passenger name records (C-317/04), as in that case data were to be supplied to the US authorities and this data-processing was excluded from the scope of the Data Protection Directive 95/46.

Before developing the arguments summed up above, the Court explicitely points out that “the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement of fundamental rights arising from interference with the exercise of the right to privacy contained in Directive 2006/24.”

So in our list of the “top 3 telecoms/broadcasting cases for the year 2009″ it is one down, two to go - coming up next seems to be the regulatory holidays-case C-424/07 Commission v. Germany, where a decision is expected in April.

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