EU State Aid

European Court of Justice (ECJ) dismisses European Commission’s (Commission) appeal against annulment of decision on state aid granted to Hungarian oil and gas company. On 4 June 2015, the ECJ dismissed in its entirety an appeal by the Commission against a General Court ruling annulling the Commission’s decision that aid granted to the Hungarian oil and gas company MOL was incompatible with the internal market. The aid measure comprised a 2005 agreement that extended MOL’s mining rights and set mining fees for the duration of an agreement, and a 2008 amendment to the Mining Act that increased mining fees set by general law that applied to MOL’s competitors. The ECJ upheld the General Court’s view that the 2005 agreement between the Hungarian State and MOL does not constitute state aid.

ECJ ruling on application of state aid rules to German tax on the use of nuclear fuels for electricity production. On 4 June 2015, the ECJ handed down its ruling on a preliminary reference from the Hamburg Finance Court on whether Article 107 of the Treaty on the Functioning of the European Union (TFEU) precludes national legislation that levies a duty on the use of nuclear fuel for the commercial production of electricity and, if it does, whether those liable for payment of such a duty may challenge it on the ground that it constitutes prohibited state aid. The reference concerned the German Law on excise duty on nuclear fuel, which introduced, for a specific six­year period, a duty on the use of nuclear fuel for the commercial production of electricity, with a view to raising revenue intended to contribute to a reduction in the burden entailed for the Federal budget by the rehabilitation required at a mining site where radioactive waste from the use of nuclear fuel is stored. The ECJ ruled that the German Law on excise duty on nuclear fuel is not a selective measure, and so does not constitute state aid prohibited by Article 107(1) of the TFEU.

EU Mergers

Phase I Mergers

  • M.7494 ­ BROCACEF / MEDIQ NETHERLANDS (4 June 2015)
  • M.7561 ­ PRE / AXIS (2 June 2015)
  • M.7605 ­ EQUISTONE PARTNERS EUROPE / GROUPE AVERYS (2 June 2015)
  • M.7611 ­ IDeA / IP / HUNT / CORIN (2 June 2015)

Trade

ECJ rejects Stichting Corporate Europe Observatory’s (Stichting’s) appeal. On 4 June 2015, the ECJ dismissed Stichting’s single­ground appeal of the General Court’s judgment to not annul the Commission’s 2010 decision, which refused Stichting full access to documents relating to negotiations between the European Union and the Republic of India aimed at concluding a  free trade agreement pursuant to the third indent of Article 4(1)(a) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. The ECJ rejected two  parts of the single­ground appeal as inadmissible, and rejected the third part as unfounded. The ECJ ordered Stichting to pay the costs of the appeal.

Public Procurement

Advocate General Opinion on whether Directive 2004/18 precludes tender specifications which require winning tenderers to enter into agreements with entities it relies on to perform contract. On 4 June 2015, Advocate General Wathelet gave an Opinion on a  reference for a preliminary ruling from a Latvian court on whether Articles 47 and 48 of Directive 2004/18 should be interpreted as precluding specifications in public procurement tenders which insist that, in the event of the contract being awarded to a tenderer which relies on the capacities of other contractors, that tenderer must, before the contract is awarded, enter into a binding co­ operation or partnership agreement with those undertakings. The Advocate General considered that such an obligation seems contrary to Directive 2004/18 in that economic operators are permitted to rely on the capacities of other entities as part of their tenders subject only to the condition that they are able to prove that they are able to rely on the other entities.

Speeches & Publications

New Crown Commercial Service guidance concerning Framework agreements under Public Contracts Regulations 2015 (PCR 2015). On 27 May 2015, the Crown Commercial Service published guidance on framework agreements, as part of its guidance on the implementation of the 2014 EU Procurement Directives. The guidance, in particular, explains the changes that the PCR 2015 have made to framework agreements.