Francesco Martucci

University Paris II Panthéon‑Assas
Professor

Francesco Martucci is Law professor (Professeur Agrégé des Facultés de droit) at the University Panthéon-Assas Paris 2 (Law School ; European College of Paris) where he teaches European and French Economic Law. Francesco Martucci is specialised in European Law and focuses on the Economic and Monetary Union, Competition Law (State Aids), Services of General Interest, Regulation and Common Market Law. Before teaching as Professor at the University of Strasbourg (Centre d’Etudes Internationales et Européennes) and as Senior Lecturer (Maître de conférence) at the University Paris Est Créteil, Francesco studied law and European law at the University of Panthéon-Sorbonne (Paris I), where he also obtained his PhD degree. He also graduated in European Studies from the Institut d’Etudes Politiques de Paris (Sciences Po) and from the Freie Universität Berlin.

Linked authors

University of Strasbourg
DG COMP (Brussels)
Gide Loyrette Nouel (Brussels)
DS Avocats (Paris)
Université Caen Normandie
University Tor Vergata
European Commission - Legal Service (Brussels)
Ashurst (Brussels)

Videos

Francesco Martucci (Université Paris II )
Francesco Martucci 14 November 2019 Paris
Francesco Martucci (Université Paris II - Panthéon-Assas)
Francesco Martucci 11 October 2018 Paris

Articles

111144 Review

Francesco Martucci Energy: The Court of Justice of the European Union shall specify the conditions under which the President of the Regulatory Authority may be appointed and dismissed (Prezident Slovenskej republiky)

34

An action was brought before the Constitutional Court of the Slovak Republic by the President of the Slovak Republic seeking a declaration that the legislative provisions relating to the appointment and dismissal of the President of the Úrad pre reguláciu siet’ových odvetví (Regulatory Authority for (...)

Francesco Martucci Notion of aid: The Paris Administrative Court of Appeal rules that the actions of Chambers of Commerce and Industry to promote and commercialise electronic signature certificates provided by an association do not constitute State aid (ChamberSign)

101

On 27 February 2020, the Paris Administrative Court of Appeal ruled that the actions taken by Chambers of Commerce and Industry (CCI) to promote and market electronic signature certificates offered by the ChamberSign association do not constitute State aid. The dispute is interesting in that it (...)

Francesco Martucci Certification: The Paris Administrative Court of Appeal rules that the Chambers of Commerce and Industry may conduct actions to promote and commercialize electronic signature certificates provided by an an association (Support-RGS)

69

On February 27, 2020, the Paris Administrative Court of Appeal ruled that Chambers of Commerce and Industry (CCI) are entitled to promote and market electronic signature certificates offered by the ChamberSign association. In the present case, a company asked the administrative judge to annul (...)

Francesco Martucci Exclusive right: The French Administrative Supreme Court rules that the exclusive right granted to the Health Digital Agency is compatible with Articles 102 and 106 of the Treaty on the Functioning of the European Union (Appligos)

89

In a ruling dated 26 February 2020, the Council of State dismissed the appeal brought against the refusal of the Minister of Solidarity and Health to repeal Decree No. 2015-1680 of 15 December 2015 on the programme to modernise the information and telecommunications systems of the emergency (...)

Francesco Martucci Electricity: The French Government adopts the order on the settlement of reimbursement, by the Energy Commission Regulation, of the illegal part contribution to the public electricity service

73

On 26 February 2020, the President of the Republic adopted the Ordinance on the settlement by the Chairman of the Energy Regulatory Commission of the reimbursement of the contribution to the public electricity service (CSPE). The aim was to draw the consequences of the dispute concerning the (...)

Francesco Martucci Recovery: The Administrative Courts of Appeal of Bordeaux and Douai clarify the relationship between State aid law and the Structural Funds rules (EDHEC, Constructys Midi-Pyrénées)

63

In a judgment dated 4 February 2020, the Administrative Court of Appeal of Douai upheld the judgment of the administrative court which annulled the decision of the Hauts-de-France region ordering the recovery of aid paid under the European Regional Development Fund (ERDF). On the other hand, (...)

Francesco Martucci Digitisation: The French Administrative Supreme Court rules that the regulatory framework of the dematerialised platform for justice experts does not breach the market law (CEACAP)

55

The Conseil d’État dismissed the action for abuse of power brought by the Compagnie des experts architectes près la cour d’appel de Paris (CEACAP) against the decree and the agreement of 18 April 2017 concluded between the Ministry of Justice and the Conseil national des compagnies d’experts de (...)

Francesco Martucci, Rebecca Loko, Audrey Lux Electricity: The Court of Justice of the European Union specifies dispute settlement conditions between household customer and an electricity distribution system operator (Energiavirasto)

134

In a judgment of 23 January 2020, the Court of Justice of the European Union interpreted Article 37 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity (OJEU L 211 of 14 August 2009, p. 55). At the (...)

Francesco Martucci Public undertaking: The French Administrative Supreme Court specifies the conditions under which the State may be held liable for the unconstitutionality of the law for failure to respect entrepreneurial freedom (Paris Eiffel Suffren, Paris Clichy, M. Laillat)

61

On 24 December 2019, the Council of State enshrined the principle of State responsibility for the unconstitutionality of a law found to be unconstitutional on the basis of a priority question of constitutionality. However, in the present case, State liability was not incurred on the ground that (...)

Francesco Martucci, Charlotte Ducrocq Electronic communications: The Court of Justice of the European Union specifies the concept of provision of an electronic communications network (TV Play Baltic)

168

The Court of Justice of the European Union (CJEU) has clarified the concept of electronic communications network provision in a preliminary ruling on 11 December 2019. This decision is in line with the France Télévisions decision handed down one year earlier (CJEU, 13 Dec. 2018, France (...)

Francesco Martucci, Pauline Cabany Energy: The Court of Justice of the European Union dismisses as inadmissible the action brought against the decision of the European Commission reviewing the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC (Polskie Górnictwo Naftowe i Gazownictwo)

120

By judgment of 4 December 2019, the Court of Justice dismissed the appeal against an order of the General Court of the European Union of 15 March 2018 dismissing an action brought by a company against Commission Decision C(2016) 6950 of 28 October 2016, on the revision of the derogation (...)

Francesco Martucci, Anne Orgonasi Financial markets: The French Administrative Supreme Court refers questions to the Court of justice of the European Union for a preliminary ruling regarding the validity of European Banking Authority’s orientations (Fédération bancaire française)

151

In a judgment handed down on 4 December 2019, the Conseil d’État ruled that an action for misuse of powers brought by the Fédération Bancaire Française (FBF) against an opinion of the Autorité de Contrôle Prudentiel et de Résolution (ACPR) of 8 September 2017 on ’Implementation of the European Banking (...)

Francesco Martucci, Margot Godefroi, Anne Orgonasi Airport charges: The Court of Justice of the European Union specifies the legal framework of airports charges (Deutsche Lufthansa)

99

By a judgment of 21 November 2019, the Court of Justice of the European Union clarified the procedure for the determination of airport charges established by Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJEU L 70, 14 March 2009, p. 11). (...)

Francesco Martucci, Simon Bohbot, Audrey Lux Recovery: The French Supreme Administrative Court applies the Court of Justice of the European Union’s interpretation regarding a European Commission’s recovery decision in order to identify the concerned undertakings (COPEBI ; Conserve Gard)

137

By a judgment of 24 October 2019, the Council of State confirmed that Commission Decision 2009/402/EC declaring incompatible State aid relating to ’contingency plans’ must be interpreted as covering the aid paid by the Office national interprofessionnel des fruits, des légumes et de l’horticulture (...)

Francesco Martucci Public service contract: The Court of Justice of the European Union interprets the regulation on public passenger transport services by rail and road (PSO) in such a way as to favor the freedom of authorities intending to directly award a public service contract (Autorità Garante della Concorrenza e del Mercato)

80

In a judgment of 24 October 2019, the Court of Justice of the European Union interpreted the PSO Regulation (Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road) to leave freedom to competent (...)

Francesco Martucci, Pauline Cabany Electricity: The Court of Justice of the European Union clarifies the concepts of electricity transmission system and electricity distribution system (ER Yug / KEVR)

154

In a judgment of 17 October 2019, the Court of Justice of the European Union clarified, in the context of a reference for a preliminary ruling, the concept of electricity transmission and distribution networks under Directive 2009/72 (Directive 2009/72/EC of the European Parliament and of the (...)

Francesco Martucci Exemption: The French Government adopts an aid scheme for employment in the entertainment industry covered by the Regulation exempting de minimis aid (Decree n° 2019-1011)

77

On 1 October 2019, the Prime Minister adopted a decree on the National Fund for Sustainable Employment in the Entertainment Industry (FONPEPS). The scheme concerns the creation of aid for recruitment on permanent or fixed-term contracts in the entertainment sector. It replaces four aid schemes (...)

Francesco Martucci Written press: The French Senate provides for the French Postal and Electronic Communications Authority with regulatory tasks of the written press distribution (Modernization of press distribution)

131

On 26 September 2019, the Senate adopted the bill on the modernisation of press distribution. Title III of the bill is devoted to the regulation of press distribution and plans to entrust this regulation to the Autorité de régulation des communications électroniques, des postes et de la (...)

Francesco Martucci, Mélanie Vermorel, Amandine Yahaya Illegal aid: The French Supreme Court holds that the damage resulting from the lack of benefit from an unlawful State aid cannot be compensated (EDF / Corsica Sole)

283

In two judgments handed down on 18 September 2019, the Commercial Chamber of the Court of Cassation applied State aid law and held that the damage consisting of the loss of the chance to benefit from a tariff resulting from illegal State aid could not be made good. These judgments were handed (...)

Francesco Martucci Transports : The Court of Justice of the European Union holds that passenger platforms are an element of the railway infrastructure whose usage is part of the minimum access package (WESTbahn Management)

140

By judgment of 10 July 2019, the Court of Justice of the European Union interpreted Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ 2012 L 343, p. 32) as meaning that ’passenger platforms’, referred to in Annex (...)

Francesco Martucci, Simon Bohbot, bpeyrebrune@neuf.fr, Hubert Pontnau Market access: The French Supreme Administrative Court annuls a decree implementing an access restriction to the taxi and mini-cab profession (Fédération française du transport de personnes sur réservation)

317

In a ruling dated 5 July 2019, the Council of State annulled Decree No. 2017-483 of 6 April 2017 on special public passenger transport activities and updating various provisions of the C. trans.... It considered that the Government had failed to enact the provisions necessary to ensure that the (...)

Francesco Martucci, Seramborgel@gmail.com, Clara Piterbraut Electricity: The Court of Justice of the European Union interprets the concept of electricity producer within the meaning of the Directive on greenhouse gas emission allowances (ExxonMobil)

297

By a judgment of 20 June 2019, the Court of Justice of the European Union adopts a broad interpretation of the concept of electricity producer within the meaning of Directive 2003/87 of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas (...)

Francesco Martucci Electronic communications: The Court of Justice of the European Union rules that an electronic mail service on Internet which does not itself provide an access to Internet does not constitutes an electronic communications service (Google)

108

By judgment of 13 June 2019, the Court of Justice ruled that the electronic mail service Gmail offered by Google does not constitute an electronic communications service within the meaning of Article 2(c) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a (...)

Francesco Martucci Electronic communications: The Court of Justice of the European Union rules that a voice over internet protocol (VoIP) constitutes an electronic communications service (Skype)

115

In a judgment of 5 June 2019, the Court of Justice ruled that the provision by the software publisher of a functionality offering a [Voice over Internet Protocol (VoIP)]service, which allows the user to call a fixed or mobile number from a national numbering plan via the public switched (...)

Francesco Martucci Public ressources: The Paris Court of Appeal refuses to qualify as a State aid a decision of the Higher Council of press messaging (Messageries lyonnaises de presse)

124

In a ruling dated 16 May 2019, the Paris Court of Appeal denied the classification as State aid of a decision adopted by the Conseil supérieur des messageries de presse (CSMP) and made enforceable by the Autorité de régulation de la distribution de la presse (ARDP). Following the difficulties (...)

Francesco Martucci Energy: The Court of Justice of the European Union holds that an electricity retail sales company may grant discount on electricity network charges granted exclusively to final customers who have chosen electronic billing (Oulun Sähkönmyynti Oy)

141

In a judgment of 2 May 2019, the Court of Justice clarified the conditions under which an electricity supplier may grant a reduction in the charges for access to the electricity system only to final customers who have opted for electronic billing. In the present case, the Finnish company Oulun (...)

Francesco Martucci SME: The French Administrative Supreme Court interprets the notion of SME within the meaning of the General Block Exemption Regulation (Interaction Tertiaire)

112

By a judgment of 16 April 2019, the Conseil d’État interpreted the concept of ’micro, small and medium-sized enterprises’ (SMEs) within the meaning of Article 2 of Annex I to Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common (...)

Francesco Martucci Recovery: The French Administrative Supreme Court clarifies the litigation regarding illegal State aid granted to an undertaking in judicial liquidation (CELF)

127

In a judgment dated 5 April 2019, the Conseil d’État ruled out the recognition of the absolute impossibility of recovering State aid illegally paid to a company placed in compulsory liquidation. In the present case, the company Mandataires Judiciaires Associés, acting in its capacity as liquidator (...)

Francesco Martucci Financial market: The French Parliament seeks to establish the legal framework for the use of connection data by the French Financial Market Authority during its investigations (PACTE draft bill)

126

In the Pact bill, the legislator has provided for the legal framework for the use of connection data by the AMF during its investigations to be clarified in order to reconcile the effectiveness of its investigations with the protection of the right to privacy. The aim is to draw the (...)

Francesco Martucci Jurisdiction: The French Supreme Court considers that the administrative judge is competent to hear actions in unfair competition against public persons (Centre Hospitalier de Saint-Jean d’Angely)

132

In a ruling of 6 February 2019, the Court of Cassation specifies that the administrative judge is competent to hear actions for unfair competition brought against hospitals. In this case, a private clinic accused a surgeon of having ceased her activity without complying with the notice and (...)

Francesco Martucci Banking union: The Italian Supreme Administrative Court refers questions to the Court of Justice of the European Union for a preliminary ruling regarding the conversion of “popular banks” into stock companies (OC)

108

In October 2018, the Italian Council of State referred to the Court for a preliminary ruling a question on the compatibility with EU law of the obligation laid down by the legislature to require the conversion of the banques populaires into joint stock companies where their assets exceed EUR 8 (...)

Francesco Martucci Internet: The Court of Justice of the European Union rules that an undertaking offering the live streaming of television programmes online does not provide an electronic communications network (France Télévisions)

113

In a question introduced by the Conseil d’État, the Court of Justice interpreted Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services, as amended by Directive (...)

Francesco Martucci Energy: The French Supreme Administrative Court rules that the energy efficiency certificates system does not infringe public competition rules (Vitogaz France)

123

Vitogaz France has filed two applications, which the Council of State has joined. First, it sought annulment of the implied decision by which the Prime Minister refused to repeal Articles R. 221-2 and R. 221-3 and Article R. 221-4 of the Energy Code relating to energy saving certificates and to (...)

Francesco Martucci Monopoly: The Court of Justice of the European Union rules that a national legislation cannot prohibit any activity carried out for profit relating, even non-exclusively, to the safekeeping of cinerary urns, on whatever basis and for whatever period (Memoria)

120

In a judgment of 14 November 2018, the Court of Justice provided some interesting clarifications on the power of Member States to reserve the pursuit of activities to profit-making entities. At issue was the activity of guarding cinerary urns in Italy. The rules of the municipality of Padua (...)

Francesco Martucci Confidential information: The Court of Justice of the European Union rules on the obligation of professional secrecy of national authorities charged with prudential supervision of credit institutions (Enzo Buccioni / Banca d’Italie)

139

In a judgment of 13 September 2018, the Court of Justice clarified the conditions under which national banking supervisory authorities may disclose confidential information to a person who so requests in order to be able to bring civil or commercial proceedings for the protection of pecuniary (...)

Francesco Martucci Professional secrecy: The Court of Justice of the European Union clarifies the scope of the obligation of professional secrecy on national financial supervisory authorities (UBS Europe)

150

In a judgment of 13 September 2018, the Court of Justice clarified the scope of the obligation of professional secrecy incumbent on national financial supervisors. It answered a preliminary question referred by the Luxembourg court before which companies have been referred by the financial (...)

Francesco Martucci State aid: The French Administrative Court of Appeal of Versailles rules that the hydraulic tax collected by Voies navigables de France does not constitute a Stade aid (VNF)

119

In a decision dated 24 July 2018, the Administrative Court of Appeal of Versailles annulled the judgement by which the Administrative Court of Cergy-Pontoise had classified as State aid the water tax levied by Voies navigables de France pursuant to articles L. 4311-1 and L. 4316-3 C. trans. (...)

Francesco Martucci Inequalities in the conditions of competition between operators: The Court of Justice of the European Union rules that European Law permits a legislation establishing inequalities in the conditions of competition between operators in the sector of fishing ("Spika" UAB / Žuvininkystės tarnyba prie Lietuvos Respublikos žemės ūkio ministerijos)

126

In a judgment of 12 July 2018, the Court of Justice of the European Union interpreted EU law as not precluding national legislation providing for unequal conditions of competition in the fisheries sector. This ruling illustrates how fundamental rights are invoked by operators to challenge (...)

Francesco Martucci Professional secrecy: The Court of Justice of the European Union clarifies the scope of the obligation of professional secrecy on national financial supervisory authorities (Baumeister)

163

In a judgment of 19 June 2018, the Court of Justice clarified the scope of the obligation of professional secrecy incumbent on national financial supervisors by clarifying in particular the concept of "confidential information". To that end, it interpreted Directive 2004/39/EC of the European (...)

Francesco Martucci Independance: The Court of Justice of the European Union declares that Poland failed to fulfil its obligations by failing to adopt the measures necessary to ensure that the investigating body is independent (Commission / Poland)

111

In a judgment of 13 June 2018, the European Commission found that Poland had failed to fulfil its obligations under EU law by failing to adopt the measures necessary to ensure the organisational and decision-making independence of the investigating body from the railway undertaking and the (...)

Francesco Martucci Upstream wholesale market: The Paris Court of Appeal rules that the sectoral regulation of the upstream wholesale market for terrestrial broadcasting does not neutralise the dominant position on the market (TDF)

156

On December 21, 2017, the Paris Court of Appeals ruled on the French Competition Authority’s Decision No. 16-D-11 of June 6, 2016. on practices in the terrestrial television broadcasting sector. However, only paragraphs 39 to 69 of the judgment are relevant in so far as they relate to the links (...)

Francesco Martucci Prices : The Court of Justice of the European Union clarifies obligations regarding prices control imposed by national regulatory authorities on the operator designated as having a significant market power (Polkomtel)

161

In a judgment of 20 December 2017, the Court of Justice clarified the scope of the pricing powers exercised by the national regulatory authority against the operator designated as having significant market power under the Access Directive (Directive 2002/19/EC of the European Parliament and of (...)

Francesco Martucci Services in the field of transport: The Court of Justice of the European Union rules that the service connecting individuals with non-professional drivers is covered by services in the field of transport (Asociación Profesional Elite Taxi / Uber Systems SpainSL)

200

On 20 December 2017, the Court of Justice handed down a long-awaited ruling on the classification in Union law of the services offered by Uber. It defines as a "service in the field of transport" under EU law the intermediation service whose purpose is, by means of a smartphone application, to (...)

Francesco Martucci Impartiality: The French Constitutional Council rules that proceedings before the Airport Pollution and Nuisance Control Authority is contrary to the principle of impartiality (Queen Air)

108

In a decision dated 24 November 2017, the Constitutional Council declared that the provisions of the Transport Code governing the sanction procedure before the Airport Nuisance Control Authority are contrary to the principle of impartiality. It had been seized of a priority constitutionality (...)

Francesco Martucci Recovery: The French Supreme Administrative Court applies conditions enabling to appreciate business take over in the view to implement State aids recovery (Railtech International)

144

In a judgment of 24 November 2017, the Council of State scrupulously applied the rules laid down by the Court of Justice to identify the company from which the national authorities must recover illegal and incompatible state aid in the event of company succession. Once again, at issue was (...)

Francesco Martucci Consultation: The French Supreme Administrative Court offers a new implementation of rules imposing the regulatory power to consult the French Competition Authority (Synerpa)

110

In a judgment of 17 November 2017, the Conseil d’État once again rejected the plea raised by the applicants challenging the legality of a regulatory act on the grounds that it had not been submitted to the Competition Authority for consultation. It should be recalled that under Article L. 462-2 (...)

Francesco Martucci Judicial review: The Court of Justice of the European Union rules that the ordinary courts cannot provide for a review of the equity of charges for the use of railway infrastructure (CTL Logistics)

129

The Court of Justice of the European Union has clarified the delicate relationship between the regulator and the judge in the railway sector. In Germany, a rail transport company (CTL Logistics) uses the railway infrastructure managed by the licensed public company DB Netz. The latter makes the (...)

Francesco Martucci ACPR: The French Supreme Administrative Court specifies conditions in which the French Authority dedicated to resolution and prudential control conducts a disciplinary procedure in case of merger (UMAM)

141

In a ruling dated 25 October 2017, the Conseil d’État monitored compliance by the Autorité de contrôle prudentiel et de résolution (ACPR) with the rights of defence of a company that had substituted itself for another company during the course of proceedings by virtue of a merger-takeover agreement. (...)

Francesco Martucci Selection procedure: The Court of Justice of the European Union specifies conditions under which a free of charge on-going selection procedure may be annulled and replaced by a fee-based auction for that procedure (Europa Way Srl)

135

In a judgment of 26 July 2017, the Court of Justice clarified the conditions under which national authorities may decide to replace a selection procedure for the allocation of digital broadcasting frequencies with a new procedure. To this end, it interprets the Authorisation, Framework and (...)

Francesco Martucci Regulated prices: The French Supreme Administrative Court rules that regulated prices of gas are incompatible with European Union law (Association nationale des opérateurs détaillants en énergie)

188

On July 19, 2017, the Conseil d’État annulled Decree No. 2013-400 of May 16, 2013 amending Decree No. 2009-1603 of December 18, 2009 on regulated tariffs for the sale of natural gas. It ruled after referring a question to the Court of Justice for a preliminary ruling on the interpretation of (...)

Francesco Martucci Private hire vehicles: Advocate General Szpunar offers its opinions on the nature of connection activities of clients with people offering transport passenger services (Asociación Profesional Elite Taxi ; Uber)

164

Advocate General Szpunar has delivered his Opinion on the classification of the activity carried on by Uber in Spain and France as services. In a first case, a question has been referred to the Court of Justice for a preliminary ruling by a Spanish court before which a trade association of (...)

Francesco Martucci Data: The Court of Justice of the European Union specifies the conditions under which undertakings may obtain personal data concerning subscribers for the purposes of provision of publicly available directory enquiry services and directories (Ziggo BV)

149

EDA is a Belgian company offering directory enquiry and directory services accessible from the Belgian territory. It has asked companies that assign telephone numbers to subscribers in the Netherlands to make their subscriber data available to it. After these companies refused, EDA challenged (...)

Francesco Martucci Taxi: The Court of Justice of the European Union does not apply Article 96 of the TFEU to a national legislation of taxi services (Flibtravel International et Léonard Travel International)

99

In a judgment of 15 March 2017, the Court of Justice ruled that Article 96(1) TFEU does not apply to taxi services. This provision prohibits the application by Member States "to transport carried out within the Union, the application by Member States of rates and conditions which contain any (...)

Francesco Martucci Breach of equality: The French Supreme Administrative Court repeals the ministerial orders establishing tariffs for private not-for-profit health care institutions (Fédération de l’hospitalisation privée)

126

On 28 December 2016, the Council of State annulled the decrees setting the tariffs applicable to private non-profit health establishments for the years 2015 and 2016. Pursuant to Articles L. 162-22-10 and R. 162-42-1 of the Social Security Code, the ministers responsible for health and social (...)

Francesco Martucci Lift of professional secrecy: The French Legislator strengthens the cooperation between the gambling regulator and three others regulation authorities to enable the professional secrecy to be lifted

102

In the so-called Sapin law, there is a provision to strengthen cooperation between the Online Gaming Regulatory Authority (ARJEL) and three other regulatory authorities. Article 76 of this law introduces three new provisions after Article 39 of Law No. 2010-476 of 12 May 2010 on the opening to (...)

Francesco Martucci “In house” exception : The French Supreme Administrative Court dismisses the action intended to contest the monopoly of the French betting company (M. B.)

123

The Conseil d’État dismissed the action seeking annulment on the ground of misuse of powers of the implied decision by which the Minister for Agriculture, Agri-Food and Forestry rejected his application for the repeal of Decree No 97-456 of 5 May 1997 on horse-racing companies and pari-mutuel (...)

Francesco Martucci Constitutionnality : The French Constitutional Council validates the High Council for financial stability’s power to issue macroprudential measures in the insurance sector (Sapin Act)

97

In a decision of 8 December 2016, the Constitutional Council decided that the provisions of the so-called "Sapin Law" (Law on Transparency, Fighting Corruption and Modernization of Economic Life) aimed at enabling the High Council for Financial Stability to take various macro-prudential (...)

Francesco Martucci Judge role: The French Supreme Administrative Court considers that the future investments program of the agency for environment and energy control complies with state aids rules (Société Efinovia)

150

The Council of State has dismissed the action for annulment brought by a company against the agreements of 15 December 2014 concluded by the Prime Minister with the Agency for the Environment and Energy Management (ADEME) relating to the future investment programme (action: "Demonstrators of (...)

Francesco Martucci Institutional autonomy : The European Court of Justice specified the conditions under which a Member State may merger national regulation authorities in accordance with the European Law (Ormaetxea Garai, Lorenzo Almendros)

309

In a judgment of 19 October 2016, the Court of Justice interpreted the Framework Directive on electronic communications to specify the conditions under which a Member State may merge national regulatory authorities (NRAs) in accordance with the principles of independence, impartiality and (...)

Francesco Martucci Access to offices: The French Competition Authority issues one opinion on freedom of establishment of lawyers exercising before the French Supreme Administrative Court and to the French Supreme Court (Offices d’avocat)

97

On 10 October 2016, the Competition Authority issued an opinion on the freedom of establishment of lawyers at the Council of State and the Court of Cassation, proposing the creation of four new offices by 2018. The opinion is issued pursuant to the "Macron Law" (Law No. 2015-990 of 6 August (...)

Francesco Martucci Financial markets: The Court of Justice of the European Union rules that the Banking Communication of the European Commission must be interpreted notably by taking into account the objective of financial stability (Kotnik)

139

On 19 July 2016, the Court of Justice of the EU, meeting in its Grand Chamber formation, interpreted the Banking Communication adopted by the Commission in the wake of the banking crisis (Communication from the Commission on the application of State aid rules to State aid to banks in the (...)

Francesco Martucci Audiovisual: The French Supreme Administrative Court does not annul the decision of the Higher Audiovisual Council that refused to grant authorisation for free broadcasting to a channel (Paris Première)

106

On 13 July 2016, the Conseil d’État dismissed the appeals brought by Métropole Télévision and Paris Première against the CSA’s rejection of their application for approval to change the terms and conditions for financing the terrestrial television service. The application had been lodged following the (...)

Francesco Martucci Audiovisual: The French Supreme Administrative Court does not reverse the decision of the Higher Audiovisual Council that granted authorisation for free broadcasting to a channel (BFM TV et NextRadioTV)

122

On 13 July 2016, the Conseil d’État dismissed the appeal brought by two applicants against the decision of the CSA to approve the modification of the financing of LCI’s terrestrial television service. Unlike Paris Première, the CSA therefore authorised the switchover to free broadcasting of the (...)

Francesco Martucci Access to service activity: The French Supreme Administrative Court rejects a request against a decree prohibiting presence of representative of show industry within regional consultative commission (Fédération des employeurs du spectacle vivant public et privé et Fédération des entreprises du spectacle vivant, de la musique, de l’audiovisuel et du cinéma)

92

In a judgment dated 30 March 2016, the Conseil d’État dismissed the action brought by two federations to annul the decree setting the composition of the regional consultative commissions which advise the regional prefects on the issue, renewal and withdrawal of the entertainment entrepreneur’s (...)

Francesco Martucci Financial Markets Authority : The Paris Court of Appeal agrees the resumption by the Financial Markets Authority of a procedure annulled on the grounds of an infringement of impartiality principle (Compania Internacional Financiera et Coudree Capital Management)

213

In a ruling dated 24 March 2016, the Paris Court of Appeal ruled that the Enforcement Committee of the Autorité des Marchés Financiers (AMF) may resume proceedings even though the sanction decision had been overturned for a breach of the principle of impartiality. In this case, two companies were (...)

Francesco Martucci Financial markets: The French Supreme Administrative Court controls the legality of press releases published by the French Financial Regulatory Agency (Fairvesta International)

167

In a ruling dated March 21, 2016, the Conseil d’État, in its capacity as a General Meeting, reviewed the legality of a soft law instrument enacted by the Autorité des marchés financiers (AMF). In this case, a company had brought an action for abuse of power against press releases published by the (...)

Francesco Martucci Financial markets: The Court of Justice of the European Union confirms that banks may adopt due diligence measures to fight against money laundering (Safe Interenvíos)

117

In a judgment of 10 March 2016, the EU Court of Justice clarified that banks may adopt vigilance measures to combat money laundering, in accordance with the provisions of two directives. On the one hand, Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial (...)

Francesco Martucci Economic activity: The Paris Court of Appeal confirms that the French Competition Authority is not competent to deal with a complaint against the electronic system of data collection concerning health insurance (Celtipharm)

243

In a judgment dated February 18, 2016, the Paris Court of Appeal dismissed the appeal brought by Celtipharm against the decision of the French Competition Authority of October 10, 2014 (J.-Ph. Kovar, "L’Autorité de la concurrence se déclare incompétent pour connaître de décisions de refus d’accès au (...)

Francesco Martucci Digital market: The European Commission presents a proposal to coordinate the use of the 700 MHz band for mobile services aiming to improve internet access for all Europeans and help develop cross-border applications

105

Behind the technical nature of this initiative lies in fact one of the concrete achievements of the Digital Single Market Strategy for Europe, which is one of the ten political priorities of the Juncker Commission (see Commission Communication of 6 May 2015: COM(2015) 192 final; see also the (...)

Francesco Martucci Financial markets: The French Tribunal of Conflicts establishes the competence of the administrative court to control the releases of the French Financial Market Authority (Fairvesta International)

155

On 16 November 2015, the Dispute Tribunal decided that the administrative judge is competent to hear disputes relating to press releases published by the Autorité des marchés financiers (AMF) for the attention of investors and savers. It ruled on a referral from the Conseil d’État, which considered (...)

Francesco Martucci Preliminary ruling: The French Supreme Administrative Court refers to the Court of Justice of the European Union for a preliminary ruling on the compatibility with the free movement of goods of the capacity mechanism in the energy sector (ANODE)

168

The Conseil d’État has referred a question to the Court of Justice of the EU for a preliminary ruling on whether Articles 34 and 36 TFEU must be interpreted as precluding the capacity mechanism in the electricity sector. In this case, the National Association of Energy Retail Operators (ANODE) (...)

Francesco Martucci Energy: The French Supreme Administrative Court establishes the competence of the Electricity Commission Regulation to define the rules on the connection to the public electricity network (Union nationale des entreprises d’électricité et de gaz)

141

On 9 October 2015, the Council of State ruled on the competence of the Electricity Regulatory Commission to set the rules of the procedures for processing applications for connection to the public electricity distribution networks. The Union nationale des entreprises d’électricité et de gaz (...)

Francesco Martucci Preliminary ruling for constitutionality : The French Constitutional Council rules conform to the Constitution the incrimination of connecting customers with non professional drivers (Uber France)

143

On 22 September 2015, the Constitutional Council declared Article L. 3124-13, 1st paragraph, of the Transport Code to be in conformity with the Constitution. The Commercial Chamber of the Court of Cassation (Cass. com, 23 June 2015, ruling no. 699) had referred a priority constitutionality (...)

Francesco Martucci, Jean Cattan Audiovisual sector : The French Supreme Administrative Court annuls the decisions of the Higher Audiovisual Council that refused to grant authorisation for free broadcasting to two channels (LCI, Paris Première)

189

In two rulings of 17 June 2015, LCI (No. 384826) and Paris Première (No. 385474), the Conseil d’État made a bold reading of the fourth paragraph of Article 42-3 of Act 86-1067 of 30 September 1986 on freedom of communication, as amended by Article 27 of Act 2013-1028 of 15 November 2013 on the (...)

Francesco Martucci Public works : The Court of Justice of the European Union applies the directive on services in the internal market to certification activities in the sector of public works (Presidenza del Consiglio dei Ministri)

122

The Court of Justice has again ruled, in its Grand Chamber formation, on the nature of the activity of the ’Sociétés Organismes d’Attestation’ (SOA) which, in Italy, are the bodies responsible for verifying and certifying compliance with the conditions required by law by undertakings carrying out (...)

Francesco Martucci Preliminary ruling for constitutionality : The French Constitutional Council specifies the constitutional framework of paying passenger transport activities (Uber France)

130

On 22 May 2015, the Constitutional Council handed down a long-awaited QPC decision particularly for the sector of private passenger transport for reward. Just a few months after the decision No. 2014-422 QPC of 17 October 2014In the case of the VTC, it was once again up to the constitutional (...)

Francesco Martucci Regulated professions : The special commission of the French Senate delivers a report on the economic growth and activity draft law as far as it concerns the reform of the legal professions

199

Senate, March 25, 2015, Growth, Activity and Equal Opportunity Bill A major reform of the regulated legal professions is underway. On 19 February 2015, the National Assembly adopted, in first reading, the Growth, Activity and Equal Opportunities Bill (known as the "Macron" Act), Chapter III of (...)

Francesco Martucci Financial regulation : The French Constitutional Council declares contrary to the Constitution under certain conditions the cumulative application of administrative and criminal sanctions (M. John L.)

262

Cons. const. 18 March 2015, Mr. John L., No. 2014-453/454 QPC and 2015-462 QPC On 18 March 2015, the Constitutional Council issued a decision that determines the conditions under which the same facts may be the subject of criminal proceedings by the judicial judge and administrative (...)

Francesco Martucci Regulated professions : The French Supreme Administrative Court rejects an action brought against the law regulating pharmacist activities pursued by companies (Collectif des SEL de pharmaciens)

306

CE, 27 Feb. 2015, Collectif des SEL de pharmaciens, n° 369949, ECLI:FR:CESSR:2015:369949.20150227 In the legally and politically sensitive context that characterizes the debate on the Growth and Activity Bill, the judgment of the Council of State, mentioned in the tables of the Lebon (...)

Francesco Martucci Financial regulation : The Constitutional Court of Belgium issues a request for preliminary ruling on the compatibility with EU law of a State guarantee in the financial sector

189

Constant Court of Belgium, 5 February 2015, No. 15/2015 On 5 February 2015, the Constitutional Court of Belgium referred a question to the Court of Justice for a preliminary ruling on the compatibility with Union law of the guarantee scheme granted to shares in the capital of authorised (...)

Francesco Martucci Public procurement : The Court of Justice of the European Union holds that articles 49 and 59 TFEU do not preclude the application of national legislation excluding the participation in a tendering procedure of an economic operator who has committed an infringement of competition law (Generali-Providencia Biztosító)

196

By judgment of 18 December 2014, the Court of Justice considers that Articles 49 TFEU and 56 TFEU do not preclude the application of national rules excluding participation in a tendering procedure by an economic operator who has committed an infringement of competition law. In the present (...)

Francesco Martucci Social services : The Court of Justice of the European Union holds that articles 49 and 56 TFEU do not preclude national legislation, which provides that the provision of urgent and emergency ambulance services must be entrusted on a preferential basis and awarded directly, without any advertising, to the voluntary associations (Azienda sanitaria locale n. 5 «Spezzino»)

182

In a judgment of 11 December 2014, the Court of Justice outlines the "unique characteristics" of charities in the legal order of the Union (Opinion of the Advocate General, paragraph 2). More specifically, it clarifies the conditions under which a social service can be directly attributed, (...)

Francesco Martucci Banking supervision : The French Jurisdiction Court recognizes the jurisdiction of the judicial judge to rule on a damage action filed on the grounds of the implementation by an authority of the article 40 of the code of the criminal procedure

143

In a letter dated 29 January 1992, the Secretary-General of the Banking Commission had, pursuant to Article 40 of the Code of Criminal Procedure, reported to the public prosecutor facts revealed by an investigation carried out on behalf of this administrative authority. The applicant, the (...)

Francesco Martucci 550.Financial regulation : The French Supreme Administrative Court declines competence to rule on a request filed against a refusal of the French Financial Markets Authority to communicate a series of documents (Apollonia)

146

In the Apollonia case, a victims’ association asked the Prudential Control and Resolutions Authority to communicate the decision by which that authority referred to the public prosecutor’s office the failings of the institutions involved in the real estate scandal. It also asked the ACPR to (...)

Francesco Martucci Public procurement : The Court of Justice of the European Union clarifies the conditions under which a contract concluded in violation of public procurement rules may not be declared ineffective (Fastweb)

97

In 2003, the Italian Ministry of the Interior concluded an agreement with Telecom Italy for the management and development of telecommunications services. As this agreement expires, in December 2011, the Italian Ministry of the Interior designated Telecom Italy as its supplier and technology (...)

Francesco Martucci Road transport : The Court of Justice of the European Union rules that article 101 TFEU, read in conjunction with Article 4(3) TEU, precludes national legislation pursuant to which the minimum operating costs are fixed by a body composed mainly of representatives of the economic operators concerned (API)

160

The case law of the Court of Justice on State regulations is regularly applied and rarely leads to a finding by the court that provisions of national law are incompatible with Article 101 TFEU, read in conjunction with Article 4(3) TEU. The judgment of 4 September 2014 will therefore be all the (...)

Francesco Martucci SGEI : The General Court of the European Union confirms that German animal carcass and slaughter waste disposal services do not qualify as SGEI (Germany / Commission)

143

The judgment of the Court of First Instance of 16 July 2014 raises a number of interesting questions in the field of State aid. Therefore, in this column, we will only deal with Article 106(2) TFEU. For the rest, the judgment is dealt with in parallel in the State aid column of this issue. In (...)

Francesco Martucci SGEI : The General Court of the European Union holds that the Commission did not commit a manifest error of assessment by authorizing the financial system of the Spanish public TV broadcasting (DTS, Telefonica)

104

Trib.UE, 11 July 2014, Telefónica de España and Telefónica Móviles España v Commission, Case T-151/11, ECLI:EU:T:2014:631 and DTS Distribuidora de Televisión Digital v Commission, Case T-533/10, ECLI:EU:T:2014:629 In the series on the financing of public service broadcasting, two judgments of the (...)

Francesco Martucci Transports : The Court of Justice of the European Union clarifies the rules on compensation for compliance with public service obligations in transport by rail, road and inland waterway (Compagnia Trasporti Pubblici / Regione Campania et Provincia di Napoli)

162

The compensation scheme for the discharge of public service obligations in respect of transport by rail, road and inland waterway is governed by Regulation (EEC) No 1191/69 (of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public (...)

Francesco Martucci Car hire services: The Court of Justice of the European Union considers it does not have jurisdiction to answer the requests concerning car and driver hire services (Crono Service, Airport Shuttle)

159

CJEU, 13 February 2014, Crono Service and Anitrav v Roma Capitale and Regione Lazio, cases C-419/12 and C-420/12. CJEU, 13 February 2014, Airport Shuttle Express and others, cases C-162/12 and C-163/12 In the war of taxis and VTC (passenger vehicle with driver), the Court of Justice will not (...)

Francesco Martucci Short selling: The Court of Justice of the European Union finds that the power of the European Securities and Markets Authority to adopt emergency measures on the financial markets of the Member States in order to regulate or prohibit short selling is compatible with EU law (United Kingdom / Parliament and Council)

184

The judgment of 22 January 2014 is certainly an important judgment for Union law, certainly for regulatory law, resolutely. The Court of Justice, sitting as a Grand Chamber, dismissed the action for annulment brought by the United Kingdom against Article 28 of Regulation (EU) No 236/2012 of the (...)

Francesco Martucci Natural gas : The French State Council annuls again the decree on regulated tariffs for natural gas supplied from the public distribution networks of the incumbent (Association nationale des opérateurs détaillants en énergie)

146

A new episode in the gas tariff schedule: the Council of State has, once again, cancelled the regulated tariffs for the sale of natural gas set by two decrees dated 15 April 2013. The Council of State granted the application for annulment brought by the National Association of Energy Retail (...)

Francesco Martucci Rights of defense : The French Administrative Supreme Court considers that the Enforcement Committee of the Prudential Supervisory Authority did not violate the rights of the defense (Caisse d’épargne et de Prévoyance du Languedoc-Roussillon )

123

EC, 13 December 2013, No 342504 The requirements of a fair trial imply respect for the rights of the defence. Two cases have attracted attention. There is a judgment, unpublished in the ECR, in which the Conseil d’État applied Article 6 of the Convention to the Enforcement Committee of the (...)

Francesco Martucci Sanction : The French Constitutional Council considers that a formal notice addressed by the Supreme Broadcasting Council cannot qualify as a sanction (Société Sud Radio Services)

162

The last quarter of 2013 was marked by a QPC decision dated December 13, 2013 (Decision No. 2013-359 QPC, Société Sud Radio Services and others) relating to the classic, but still open, question of the application of fair trial requirements to regulatory authorities. These requirements are at the (...)

Francesco Martucci Regulated tariffs : The French Competition Authority adopts an opinion on the draft orders relative to the regulated tariffs of the fuel in French overseas departments

100

On 27 November 2013, the Competition Authority issued an opinion on three draft decrees in the Council of State regulating the price of motor fuels and liquefied petroleum gas and the functioning of the wholesale market for these products in the French overseas departments (DOM). These decrees (...)

Francesco Martucci Preliminary ruling : The Enforcement Committee of the Prudential Supervisory Authority may refer a question to the Court of Justice for a preliminary ruling (Caisse d’épargne et de Prévoyance du Languedoc-Roussillon)

179

An intriguing decision by the Enforcement Committee of the Autorité de contrôle prudentiel on 25 November 2013 was noted, which we will analyse without going back over the fund. The Enforcement Committee considers that it is a court or tribunal within the meaning of Article 267 TFEU, so it can (...)

Francesco Martucci Financial markets : The French Administrative Supreme Court applies the Art 6.1 ECHR to the AMF Enforcement Committee and to the Prudential Supervisory Authority

171

EC, 9 October 2013, No 359161 Two judgments in which the Conseil d’État applied Article 6 of the Convention to the Enforcement Committee of the Autorité des marchés financiers (EC, 29 October 2013, No. 356108; EC, 9 October 2013, No. 359161). The ruling of 29 October 2013, mentioned in the ECR, (...)

Francesco Martucci, Julie Rondu Financial regulation : The French Supreme Administrative Court applies the Art 6.1 ECHR to the AMF Enforcement Committee and the Prudential Supervisory Authority

141

EC, 9 October 2013, No 359161 EC, 29 October 2013, No 356108 The case of Grande Stevens and Others v. Italy, on which the European Court of Human Rights ruled on 4 March 2014, is currently the subject of a request for referral to the Grand Chamber, a request which is a further illustration of (...)

Francesco Martucci Banking Union : The European Parliament and the Council of the European Union establish the Banking Union (Directive 2013 / 36 / EU of the European Parliament and of the Council of 26 June 2013...)

180

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, OJEU No L 176 27 June 2013, p. 1. Council Regulation (EU) No 1024/2013 of 15 October 2013 (...)

Francesco Martucci Press sector: The French Competition Authority declares itself incompetent to rule on decisions adopted by the regulator of the retail industry of the press (Messageries lyonnaises de presse)

155

By a decision dated 6 May 2013, the Competition Authority declares itself incompetent to rule on decisions adopted by the regulator of the press distribution sector. The decision clarifies not only the extent to which regulation is not an economic activity, but also the division of roles (...)

Francesco Martucci Transports - Rail - Passengers information: The Court of Justice examines the obligations of the railway infrastructure to provide railway undertakings and passengers with information (Westbahn Management)

131

CJEU, 22 November 2012, Westbahn Management / ÖBB Infrastruktur, Case C-136/11 In a judgment of 22 November 2012, the Court of Justice clarified the information obligations of the railway infrastructure manager as defined in the railway package. A question has been referred to it for a (...)

Francesco Martucci Transports - Rail - Management independence: The Court of Justice protects the management independence of the railway undertakings from political interference (Portugal)

137

By judgment of 25 October 2012, the EU Court of Justice finds that Portugal has failed to fulfil its obligations under directives in the railway package (amended Directives: Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways and Directive 2001/14/EC of (...)

Francesco Martucci Electronic communications: The French Competition Authority delivers an opinion on the intervention of local authorities in the very fast broadband networks using (Optical fiber)

177

Aut. conc. opinion n° 12-A-02 of 17 January 2012 on a request for an opinion from the Senate Committee on the Economy, Sustainable Development and Town and Country Planning on the framework for action by local and regional authorities with regard to the deployment of very high-speed networks. (...)

Francesco Martucci Antitrust Law amidst financial crisis

770

The ultimate goal of competition law is to promote competition and, in most jurisdictions, to enhance consumer welfare. Competition policy may be set aside due to special and exceptional circumstances, such as a financial crisis that threatens the stability of an economy. It is therefore (...)

Francesco Martucci Le droit des restrictions verticales

1758

Regardless of the legal system concerned, vertical restraints have always benefited from a special, preferential regime. The reasons for this preferential treatment are explained by the economic analysis which highlights the contribution of this type of restriction to the optimisation of (...)

Francesco Martucci EU Competition Enforcement and Human Rights

3660

This book discusses the procedural rights enjoyed by those being investigated under Articles 81 and 82 of the EC Treaty and of the Merger Control Regulation, and their right to challenge the Commission’s decision in the Community Courts. It further assesses how their rights to ‘due process’ in (...)

Francesco Martucci Les engagements dans les systèmes de régulation

6743

Commitment is a key concept in law and economics, but the eyes are rarely crossed. For example, lawyers have always been familiar with the concept of a contract, while economists rarely take into account the legal dimension of a commitment. The first part of the book rather takes up the (...)

Francesco Martucci Régulation économique et démocratie

5916

Why, to what extent and with what consequences should economic regulation be entrusted to bodies that are independent of politics? An inventory of the current situation in Europe was necessary to shed light on the nature and presuppositions of the assimilation often made between regulation as (...)

Francesco Martucci Droit social et droit de la concurrence

6922

The purpose of this study, which has so far remained unique in its kind, is to analyse the relationship between social law and competition law, emphasising the need for consistency in the legal system. The subject has been highly topical in recent years. First of all in case law, since it was, (...)

Francesco Martucci Les risques de régulation

6098

In the enthusiasm for opening up to competition or in the firm desire to preserve the achievements of public service, it was somewhat forgotten that systems of economic regulation are not left to simple competition because they also involve risks. Current events are a stark reminder of this. (...)

Francesco Martucci I fondamenti del diritto antitrust europeo

6459

Thesis defended at the University of Rome La Sapienza in 2004, the present work, published in Italian, is noteworthy in that the author favours an original approach to Community law on anti-competitive practices. Mr. Pace analyses the discipline from a somewhat new perspective as it is (...)

Francesco Martucci European Regulatory Agencies

5367

Regulatory agencies are now unavoidable figures in the Community institutional system and, paradoxically, have only been the subject of rare in-depth academic studies. It is therefore with great interest that we welcome the publication of the proceedings of a seminar held on the subject in Rome (...)

Francesco Martucci Les régulations économiques: Légitimité et efficacité

7556

Entire sectors of the economy are now governed by regulatory mechanisms that dominate banking, insurance, finance, telecommunications, energy and transport. Political and national power has given way to a more technocratic and legal power. Businesses have eyes only for the Regulatory Authority (...)

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