“ever precise in promise-keeping”*?: open and vague ministerial promises do not constitute state aid

Posted on May 24, 2010 | Filed Under communication technologies

The General Court delivered judgment on 21 May 2010 in the joined cases T-425/04 France v. Commission, T-444/04 France Télécom v. Commission, T-450/04 Bouygues v. Commission, T-456/04 AFORS Télécom v. Commission, annulling Commission Decision C(2004)3060.

The origins of the case go back to 2002,when France Télécom (FT) was in a rather difficult economic situation and French authorities - representing the majority stockholder - issued a series of public declarations. Most notably, the Minister of the Ecomony declared that “the shareholder State will act as a prudent investor and were FT to encounter difficulties, we would take the appropriate measures … I repeat that were FT to face funding problems, which is not the case today, the State would take the necessary decisions in order to overcome them”. The Commission had viewed these declarations, together with an offer by the French State of a shareholder loan for FT (a 9 billion Euro credit line), as state aid and incompatible with teh Treaty.

The General Court agreed that the statements of the French authorities did confer a financial advantage on FT, as they had had a decisive influence on the reaction of the ratings agencies. However, the Court came to the conclusion that there had not been a transfer of State resources. “On account of their open, imprecise and conditional nature, in particular as regards the nature, scope and conditions of possible State intervention in favour of FT, the statements made from July 2002 onwards cannot be construed as a State guarantee or be interpreted as containing an irrevocable commitment to provide specific financial assistance to FT.” (quote taken from the press release; the judgment is available only in French; the relevant paragraphs are 268 to 289).

*) Shakespeare, Measure for Measure, Act I, Scene 2

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“Brief, then; and what’s the news?”*: update on ECJ cases

Posted on May 9, 2010 | Filed Under communication technologies

1. ECJ-Judgment of 6 May 2010 in the case C-545/08 Commission v. Poland: no specific regulatory obligations without prior market analysis:

The result of this case, decided by the Court without prior opinion of the advocate general, does not come as a surprise: specific regulatory ex ante-obligations on providers of electronic communications networks and services must not be imposed without having conducted the market analysis procedure, as laid down in article 16 of the framework directive: 

“Il convient de rappeler, à titre liminaire, que, conformément à l’article 16 de la directive «cadre» ainsi qu’aux articles 16 et 17 de la directive «service universel», les ARN ne peuvent imposer des obligations réglementaires ex ante aux entreprises déterminées comme étant puissantes sur un marché pertinent donné qu’après avoir effectué une analyse dudit marché. ” (paragraph 47 of the judgement; an English version is not yet available).

The Polish regulator had - in 2006 - imposed the obligation for cost oriented end user tariffs for broadband internet access on the incumbent operator, without following the market analysis procedure beforehand. The Commission started an infringement procedure and obviously Poland had very little chance to defend this action of the regulator. Nevertheless, it tried to do its best by maintaining that this newly imposed obligation was still covered by the transitional rules in article 27 of the framework directive, as it more or less extended the obligations for cost orientation of end user tariffs from voice telephony to broadband access. And as both services after all use the same “last mile”, for instance line maintenance costs could not be attributed to either voice telephony or broadband access.  The ECJ did not buy into this, as the regulatory framework had entered into force in Poland on 1 May 2004, and the obligations existing under the old regulatory framework did not cover broadband.

2. New cases for the ECJ:

Just to make you aware of new telecoms and broadcasting cases already at the Court or on their way to the Court:

In C-52/10 Eleftheri Tileorasi A.E. ‘Alter Channel’ and Konstantinos Giannikos  the question is put to the ECJ whether, under the TV without Frontiers-directive, the provision of payment or of consideration of another kind is a necessary defining element of the intention to advertise (in the context of ’surreptitious advertising’).

C-71/10 Ofcom addresses environmental information under the directive 2003/4/EC, related to the precise location of mobile phone base stations in the UK.

And the data retention directive is coming back to the ECJ from Ireland, this time not by the Member State, but from the High Court (see here and here for the decision); the exact wording of the request for a preliminary ruling still has to be decided.

And at the General Court COLT France challenges a state aid decision by the Commission concerning a broadband network in Hauts-de-Seine department (T-79/10 COLT Télécommunications France v. Commission (Annulment of Commission Decision  C(2009) 7426 final of 30 September 2009 [state aid N 331/2008 — France]).

3. Judgments  coming up:

From my “This year’s top three cases”-list, two will be decided soon:

My “number 3″, T-425/04 France v. Commission, T-444/04 France Télécom v. Commission, T-450/04 Bouygues v. Commission, T-456/04 AFORS Télécom v. Commission, a state aid case concerning recapitalisation of France Télécom, will be decided on 21 May 2010. [update 13 May 2010: sorry - but the case disappeared from the ECJ’s calendar again, so we will have to wait a little longer, but I still expect it to be decided before summer - and another update: even though it didn’t show up on the Court’s public calendar just a week ago, it wa decided nonetheless - see this post].

And “number 2″, C-58/08 Vodafone, on the validity of thearticle 4 of the roaming regulation is coming up for judgment on 8 June 2010. My “number 1″-case, just to remind you, is C-280/08 P Deutsche Telekom AG, where on 22 April 2010 the advocate general delivered his opinion; see here).

Opinions of the advocate general are coming up on 1 June 2010 in C-222/08 Commission v. Belgium and C-389/08 Base and others v. Belgacom, both dealing with universal service in Belgium. [update 13 May 2010: again, these two cases were dropped from the ECJ’s calendar]

*) Shakespeare, King John, Act V, Scene 6

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“One fire drives out one fire”*: explaining the blogs’ downtime

Posted on May 9, 2010 | Filed Under communication technologies

This blog was down - the server could not be reached - for a few days some two weeks ago, and for another three days just this week. The reason in both instances was, quite simply, if unlikely: fire. The blog is hosted on the servers of the Vienna University of Economics and Business, and by some very unfortunate coincidence, a fire ravaged through the transformer room already two weeks ago; then when the all systems had come back, there was another fire, reportedly due to faulty repair work after the first fire. Now electricity is restored and even the non-essential servers are all running again. The university is coming back to business as usual, on campus as well as in the virtual world, such as here in this blog.

*) Shakespeare, Coriolanus, Act IV, Scene 7

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