Case C-209/07: Reference for a preliminary ruling from Supreme Court (Ireland) made on 20 April 2007 — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd
Date: 2007-06-23
Institutions: Court of Justice
Subjects: competition law, competitiveness, interpretation of the law, meat processing industry, production capacity

23.6.2007

EN

Official Journal of the European Union

C 140/15

Question referred

inasmuch as Article 80(3) of

Does the Belgian Law of 14 July 1991 on commercial practices
information to and the protection of
and the provision of
consumers constitute a measure having equivalent effect, as
prohibited in Articles 28 to 30 of the Treaty establishing the
European Community,
that
national law prohibits demands for an advance or for payment
from the consumer during the compulsory period for with-
drawal, as a result of which the actual effect of the Law of 14
July 1991 on the trading of goods in the trader's own country
differs from its effect on trading with nationals of another
Member State and does this give rise in fact to an obstacle to
the free movement of goods, which is protected by Article 23
of the Treaty establishing the European Community?

Action brought on 19 April 2007 — Commission of the
European Communities v Kingdom of Spain

(Case C-207/07)

(2007/C 140/24)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: H. Støvlbæk and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

— declare that, by adopting the first indent of the second para-
graph of the single article of Royal Decree-Law 4/2006 of
24 February 2006, amending the fourteenth function of the
National Energy Commission provided for in Supplementary
Provision No 11, part 3, point 1 of Law 34/1998 of 7
October 1998 on the hydrocarbon sector, in order to make
the acquisition of certain shareholdings in undertakings
which carry on certain regulated activities in the energy
sector and the acquisition of the assets necessary to carry on
such activities subject to the prior approval of the National
Energy Commission, the Kingdom of Spain has failed to
fulfil its obligations under Article 56 EC and 43 EC;

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

1. The Spanish legislation which is the subject of these proceed-
ings makes the following transactions subject to the prior
approval of the National Energy Commission (‘the NEC’):

energy sector, where that shareholding exceeds 10 %, or
any other percentage giving a significant influence over
that undertaking;

— the acquisition of the assets necessary to carry on such

activities.

2. The Commission takes the view that the provision in ques-
tion is incompatible with Article 56 of the EC Treaty for the
following reasons:

— the acquisition of shares in undertakings which carry on
activities in the energy sector or the assets necessary to
carry on such activities are ‘movements of capital’ within
the meaning of Article 56 EC;

— the requirement of prior approval by the NEC constitutes
a ‘restriction’ on the free movement of capital prohibited
in principle by Article 56 EC; and

— that restriction is not justified under the EC Treaty.

3. In particular, the Commission takes the view that the legisla-
tion at issue is not justified by the objective of safeguarding
the energy supply for the following reasons:

— the contested measure is not an appropriate means of
safeguarding the energy supply, there being other more
suitable means of doing so;

— in any event, the contested measure is disproportionate,
since prior approval
limited to either certain
is not
specific aspects of the management of the undertaking in
which a shareholding has been acquired or the manage-
ment of the assets;

— the power of the NEC to withhold the approval or to
make it subject to conditions is not governed by criteria
which are objective and sufficiently precise, so as to be
amenable to effective review by the courts.

The Commission considers that the legislation at
issue also
constitutes a restriction on the right to establishment contrary
to Article 43 EC which, for the reasons already mentioned in
relation to Article 56 EC, are not justified by the objective of
safeguarding energy resources.

Reference for a preliminary ruling from Supreme Court
(Ireland) made on 20 April 2007 — The Competition
Authority v Beef Industry Development Society Ltd, Barry
Brothers (Carrigmore) Meats Ltd

(Case C-209/07)

(2007/C 140/25)

Language of the case: English

— the acquisition of a shareholding in an undertaking
which carries on itself or through other undertakings
belonging to the same group certain activities in the

Referring court

Supreme Court

C 140/16

EN

Official Journal of the European Union

23.6.2007

Parties to the main proceedings

Applicant: The Competition Authority

Defendants: Beef
Brothers (Carrigmore) Meats Ltd

Industry Development Society Ltd, Barry

Questions referred

‘Where it is established to the satisfaction of the court that:

a) there is overcapacity in the industry for the processing of
beef, which calculated at peak throughput, would be approxi-
mately 32 %;

b) the effect of this excess capacity will have very serious conse-
quences for the profitability of the industry as a whole over
the medium term,

c) while, as reported, the effects of surplus requirements have
not been felt to any significant degree as yet, independent
consultants have advised that, in the near term, the overcapa-
city is unlikely to be eliminated by normal market measures,
but over time the overcapacity will lead to very significant
losses and ultimately to processors and plants leaving the
industry;

d) processors of beef representing approximately 93 % of the
market for the supply of beef of that industry have agreed to
take steps to eliminate the overcapacity and are willing to
pay a levy in order to fund payments to processors willing
to cease production, and

the said processors, comprising ten companies, form a corporate
implementing an
body,
arrangement with the following features:

the purpose of

(“the society”)

for

1. plants

(called “goers”

) killing and processing 420,000
animals per annum, representing approximately 25 % of
active capacity would enter into an agreement with the
remaining companies (called “stayers” ) to leave the industry
and to abide by the following terms;

6. a voluntary levy would be paid to the society by all stayers at
the rate of EUR 2 per head of the traditional percentage kill
and EUR 11 per head on cattle kill above that figure;

7. the levy would be used to repay the stayers'

loans;

levies

would cease on repayment of the loans;

8. the equipment of goers used for primary beef processing
would be sold only to stayers for use as back-up equipment
or spare parts or sold outside the island of Ireland;

9. the freedom of the stayers in matters of production, pricing,
conditions of sale, imports and exports, increase in capacity
and otherwise would not be affected,

and that it is agreed that such an agreement is liable, for the
purpose of application of Article 81(1)EC, to have an appreci-
able effect on trade between Member States, is such arrangement
to be regarded as having as its object, as distinct from effect, the
prevention, restriction or distortion of competition within the
common market and therefore, incompatible with Article 81(1)
of the Treaty establishing the European Community?’

Reference for a preliminary ruling from the Simvoulio tis
Epikratias (Council of State) (Greece) lodged on 23 April
2007 — Mikhaniki A.E. v Ethniko Simvoulio Radioti-
leorasis, Ipourgos Epikpatias; Interveners: Pantekhniki Α.Ε.,
Sindesmos Epikhiriseon Periodikou Typou

(Case C-213/07)

(2007/C 140/26)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

2. goers would sign a two year non-compete clause in relation
to the processing of cattle on the entire island of Ireland;

3. the plants of goers would be decommissioned;

Parties to the main proceedings

4.

land associated with the decommissioned plants would not
be used for the purposes of beef processing for a period of
five years;

Applicant: Mikhaniki A.E.

5. compensation would be paid to goers in staged payments by

means of loans made by the stayers to the society;

Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikpa-
tias; Interveners: Pantekhniki Α.Ε., Sindesmos Epikhiriseon Peri-
odikou Typou