Chillin'Competition

A look at my recent posts shows that I have developed a taste for pending issues, whether it is rulings of the ECJ or Commission decisions. Rather than doing something new, I thought I would repeat the trick (I tell myself that the number of comments received in previous posts justifies the non-move). Some will have thought ‘Post Danmark II’ when reading the title. True, there is a second Post Danmark case pending before the ECJ. The little information available on the Court website, suggests that it may be another milestone in Article 102 TFEU case law.

But Post Danmark II has long been old news for most if not all of us (not to mention that discussing this case would involve writing yet another post about rebates). Due to the limited supply of Article 102 TFEU cases, it makes (economic) sense to cherish and discuss every single judgment, even prior to their adoption. Thus from the list of pending preliminary references in competition law, I thought I would repeat the trick by doing something else instead, and rather mention briefly (and invite your comments on) the following:

– Eventech concerns the use of bus lanes by taxis in London. The question is more precisely about the application of Article 107(1) TFEU to regulations that exclude private hire cars (minicabs) from such lanes. The key issue relates to whether such regulations involve the use of State resources. The information that is publicly available suggests that the answer is a clear ‘no’. But given that the Court mentioned in Gibraltar that what matters for the purposes of Article 107(1) TFEU is not the ‘regulatory technique’ but the effects of a measure, one is no longer 100% sure about these things.

– A colleague who is interested in EU law but not in competition law asked me a few weeks ago about the FNV Kunsten Informatie en Media case. This one is about the application of competition law to collective labour agreements. The agreement in question is interesting in that it dealt with the working conditions of self-employed workers who were not subject to it. In spite of the obvious distortions it entails this looks, again, like a straightforward case. What makes it worthy of mention, from my perspective, is that the mechanism used in the agreement to fix wages is not fundamentally different from that underlying the so-called Spanish Google tax. You may remember from my post on the question that the Spanish government seeks to ensure that Google News and other aggregators compensate newspapers for the use of ‘non-significant excerpts’ (I know I repeat myself, but this is a concept that never fails to amaze me) by making it impossible for the latter to relinquish their right (that is, by preventing negotiations between individual newspapers and aggregators).

– There are also some pending cases in Luxembourg featuring Alfonso. But it is probably better to let him comment on those.

Pablo