“O, make them joyful, grant their lawful suit!”*: Top 3 pending cases at the ECJ

Posted on January 7, 2009 | Filed Under communication technologies 

Around New Year, “TOP 3″ (10, 100, whatever) lists pop up all around the blogosphere and the old/new media. So instead of just providing you with the updated version of our list of pending telecoms- and broadcasting-cases to watch out for at the ECJ and CFI (earlier update here), why not make it a TOP 3-list? So here they are, the top cases where we expect ECJ decisions any time this year:

At number three, a competition case: C-202/07 P France Télécom v. Commission, concerning predatory pricing practices for wholesale broadband products, dating back to 2001. The Court of First Instance had upheld the Commission’s decision against France Télécom, including a fine of around 10 Million Euro; but the advocate general found fault in the CFI’s reasoning (see here). If the Court follows the advocate general, this would highlight the limits of general competition law when dealing with presumed predatory pricing in the telecoms sector (where the the possibility to recoup losses now seems rather difficult to prove). Still more interesting will be ECJ’s decision on the appeal of Deutsche Telekom in the margin squeeze-case C-280/08 P Deutsche Telekom; however, I am not sure this case will be decided still in 2009.

At number two, the regulatory holidays: C-424/07 Commission v. Germany is a case of a highly symbolic nature, probably more than of real practical importance. We have not yet seen an advocate general’s opinion in this case, but still I expect it to be decided in 2009 (the hearing before the Court is set for 5 February 2009). Commissioner Reding has fought hard against efforts by Member States to encroach on the powers of the national regulatory authorities (not always with full success, see C-387/06 Commission v. Finland, blog-post here, and C-227/07 Commission v.  Poland), and the German defiance seems to have motivated her most. At an official speech two years ago, she even called the German arguments for their regulatory holiday-proposal (limiting the powers of the NRA in emerging markets) “eines wahren Winkeladvokaten würdig” (”worthy of a real shyster”). The proposal was watered down, but not as far as to win the approval of the Commission, for which it is an important issue of prinicple. So we can look forward to a decision that will, whatever the outcome, be hotly debated in the “regulatory community”. (Update: the advocate general’s opinion will be delivered an 23 April2009)

And at number one, of course, the data retention directive: C-301/06 Ireland v. Council and European Parliament is the oldest relevant case in the field of telecommunications and/or broadcasting now pending at the ECJ, the advocate general’s opinion was delivered on 14 Oct 2008 (see here), so a decision of the Court is to be expected any time soon (update: judgment will be delivered on 10 February 2009). After the advocate general’s opinion, annulment of the directive does not seem very likely, but one cannot be certain until the decision is handed down. [update 11.02.2009: now we are certain - the ECJ followed the advocate general’s opinion, see here]

So that’s it - no broadcasting case made it to the top 3-list; closest candidate would be the case C-222/07 UTECA, where I expect the Court to follow the advocate general’s line of trying not to interfere with Member States’ policy decisions for promoting audiovisual content, as long as they do not lead to internal market barriers (update 06 March 2009: expectation fulfilled - see here).

*) Shakespeare, King Richard III, Act III, Scene 7

PS: The full list of pending cases is below the break:

Here’s the list of possibly interesting cases concerning telecommunications and broadcasting currently pending at the European Court of Justice:

Pending at the Court of First Instance:

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5 Responses to ““O, make them joyful, grant their lawful suit!”*: Top 3 pending cases at the ECJ”

  1. ECJ: data retention directive “relates predominantly to the functioning of the internal market” : contentandcarrier on February 11th, 2009 11:55 am

    […] 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 […]

  2. ECJ: possibility to recoup losses is no precondition for finding predatory pricing : contentandcarrier on April 18th, 2009 11:23 pm

    […] down, one to go: on 2 April 2009 the European Court of Justice decided another one of our “top 3 pending cases” for 2009: In the judgment C‑202/07 P, France Télécom SA v. Commission, the ECJ for once did not follow […]

  3. “let your own discretion be your tutor”*: advocate general on the “regulatory holidays”-case : contentandcarrier on April 23rd, 2009 3:05 pm

    […] case C-424/07 Commission v. Germany is, as I have written before, of a highly symbolic nature, as it comes down to the long awaited showdown between the Commission […]

  4. “Thus hath the course of justice wheel’d about”*: decided cases : contentandcarrier on December 3rd, 2009 7:45 pm

    […] for “new markets” (more details here). I have blogged about the case before here and on the opinion of the advocate general […]

  5. This year’s list of the “top 3″ pending cases at the ECJ : contentandcarrier on February 18th, 2010 7:12 pm

    […] the beginning of last year, I provided an outlook on the telecoms and broadcasting cases pending at the ECJ which I thought were the most important […]

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