Preliminary ruling (Art. 267 TFEU)

Anticompetitive practices

Art. 267 TFEU preliminary rulings: An overview of EU and national case law
General Court of the European Union (Luxembourg)
As European competition law continues to prosper and as the European Commission continues to innovate, the role of the European Courts in Luxemburg continues to fascinate those who practice, teach or enforce. The Courts have an appellate function and a guidance function. In this foreword I will (...)

The French Social Security Court seeks ECJ preliminary reference on whether tax financing retirement benefits amounted to State aid (Casino)
Sheppard Mullin (Brussels)
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Maersk (Copenhagen)
Brief description of the facts and legal issues The claimant and other parties brought an action for reimbursement of certain social security contributions for retiring craftsmen and traders, from ORGANIC which they had paid during the period from 2000 to 2002. The claimant requested the (...)

The EU Court of Justice holds that Member States cannot block claims for compensation by victims of umbrella pricing caused by the presence of a cartel on the market for elevators (Kone)
EFTA Surveillance Authority
Case C-557/12 Kone AG: Cartels, damages and “umbrella pricing”* The Court of Justice’s judgment in Case C-557/12 Kone AG and Others v ÖBB-Infrastruktur AG is an important landmark in reinforcing the efficacy of EU antitrust law. The Court holds that Member States cannot block claims for (...)

The EU Court of Justice deals with the question to what extent the cartelists are required to compensate the higher price charged not just by the members of the cartel, but also by other competitors (Kone)
University of Groningen
The Kone case and the lifts cartel – an upward effect on prices and effectiveness?* On June 5 the Court has handed down the eagerly awaited judgment in the Kone case. This is one of the several cases that result from the Commission’s decision finding a cartel in the elevators and escalators (...)

The EU Court of Justice allows an interpretation of the matter of civil liability according to which a cartel member may be kept liable for damages caused by umbrella pricing (Kone / ÖBB)
Hausfeld (London)
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Quinn Emanuel Urquhart & Sullivan (London)
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Hausfeld (London)
Greater scope for cartel damages recovery following the Court of Justice’s ruling that cartelists are liable for “umbrella” damages resulting from the higher prices paid to non-cartelists* On 5 June 2014, the Court of Justice of the European Union (ECJ) clarified the full extent of cartel damages (...)

The AG Kokott of the EU Court of Justice issues opinion on the scope of the civil cartel liability in favour of allowing an action for compensation for loss resulting from umbrella pricing (KONE)
European Procurement Law Group
A first reaction to AG Kokott’s KONE Opinion (C-557/12)* AG Kokott’s Opinion of 30 January 2014 in case C-557/12 KONE is generating significant debate (see the very interesting criticism in EUTopia) as it deals with a very complicated and controversial issue that could either spur or restrict (...)

The Lisbon Appeal Court confirms fines against a professional association for anticompetitive practices in the training market (OTOC)
Eduardo Paz Ferreira & Associados
In July 2007, the Portuguese Order of Chartered Accountants (OTOC), legally entrusted with regulating the activities of chartered accountants in Portugal, adopted a binding regulation concerning a mandatory training system, aimed at guaranteeing the quality of these professional services. Under (...)

The EU Court of Justice finds a firm which has infringed Article 101 TFEU may not escape imposition of a fine for the sole reason that the illegality of its conduct was erroneously assessed by its legal counsel or by a decision of a national competition authority (Bundeswettbewerbsbehörde / Schenker)
Philippe & Partners (Brussels)
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Liège University - IEJE
I. The Parties The Bundeswettbewerbsbehörde, the Federal Competition Authority in Austria. The Bundeskartellanwalt, the Federal Cartel Lawyer in Austria. Thirty-one undertakings, including inter alia Schenker & Co. AG (“Schenker”), members of the Spediteur-Sammelladungs-Konferenz (the (...)

The EU Court of Justice rules on the interpretation of Article 101 TFEU and establishes that undertakings cannot escape fine liability on account of qualified legal advice (Schenker)
ClientEarth (Bruxelles)
The principle of fault in EU competition law: C-681/11 Schenker & Co and others* In C-681/11 Schenker & Co and others this was more or less the defence a couple of Austrian transport companies came up with after being fined for infringing competition rules. Those companies had received (...)

The EU Court of Justice rules that reliance on legal advice or decisions of NCAs does not preclude imposition of fine for infringing art. 101 TFEU (Schenker)
European Commission - DG Internal Market and Services
In a reference for a preliminary ruling under Article 267 TFEU, made by the Oberster Gerichtshof (Austria) on 5th December 2011, the EU Court of Justice was asked to respond to the following question; whether a fine may be imposed, in case of an infringement of Art.101 TFEU, when the (...)

The Slovak Supreme Court upholds competition authority’s decision in banking cartel case (Slovenská sporiteľňa, Všeobecná úverová banka)
European Commission (Brussels)
Slovakia: The Supreme Court upholds Authority’s Decision in Banking Cartel Case* On 21 and 22 May 2013, the Supreme Court of the Slovak Republic (Supreme Court) upheld a decision of the Antimonopoly Office of the Slovak Republic (the Office) in a case concerning a banking cartel, vis-à-vis two (...)

The EU Court of Justice hands down preliminary ruling on circumstances in which agreements concerning the price of automotive repairs concluded between insurance companies and repair shops may have an anti-competitive object (Allianz, Generali)
Van Bael & Bellis
On 14 March 2013, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Hungarian Supreme Court on the application of Article 101 TFEU to certain agreements between insurance companies and car repair shops. Once a (...)

The EU Court of Justice rules on compulsory training obligations by professional bodies (Order of Chartered Accounts)
Van Bael & Bellis (Brussels)
On 28 February 2013, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Portuguese Court of Appeal on the application of Article 101 TFEU to professional associations. The ECJ found that a professional association is (...)

The EU Court of Justice hands down preliminary ruling on post-term non-compete obligation in franchise agreement (La Retoucherie)
Van Bael & Bellis
On 7 February 2013, the Court of Justice of the European Union (“ECJ”) handed down its ruling in response to a preliminary reference from a Spanish court that had questioned the meaning of the phrase “premises and land from which the buyer has operated during the contract period” in Article (...)

The EU Court of Justice rules on the interpretation of Article 101 TFEU and finds that undertakings cannot justify restrictions of competition relying on the claim that a competitor operates illegally on the relevant market (Akcenta)
ClientEarth (Bruxelles)
Vigilantes on the market: Can undertakings restrict competition to ‘help out’ public authorities?* In an interesting case decided today the CJEU held that a number of Slovak banks could not exclude a competitor even if that competitor was allegedly operating illegally on the Slovak market. It’s (...)

The EU Court of Justice rules in favor of the Slovakian NCA and rules that an agreement intended to exclude a competitor is contrary to the competition rules even if the competitor is operating unlawfully on the market (Akcenta)
Agency for the Cooperation of Energy Regulators (ACER) (Slovenia)
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Factual background On 9 June 2009, the Antimonopoly Office of the Slovak Republic (the "AMO"), a first-level authority, found that three major banks – Slovenská sporiteľna, a.s. (the "SLSP"), Československá obchodná banka a.s. (the "CSOB") and Všeobecná úverová banka a.s. (the "VUB")(jointly refered (...)

The Belgium Constitutional Court rules that fines imposed under Reg. n°1/2003 are not tax deductible under Belgian law (Tessenderlo Chemie)
Liège University - IEJE
I. Facts The European Commission opened an enquiry about alleged violation of EU competition law against Tessenderlo Chemie, a Belgian company. Tessenderlo Chemie made provisions in order to pay the expected fine. These provisions were tax exempted until 2008 when article 53 of the Belgian (...)

The EU Court of Justice establishes that a national competition authority does not have to prove appreciable effect on competition for object agreements (Expedia)
Lancaster University
Anti-Competitive Agreements: knowing your ‘object’ from your ‘appreciable’ Posted on February 11, 2013* In October 2012 Christopher Brown posted an interesting blog on AG Kokott’s opinion in Case C-226/11 Expedia. The full judgment was delivered on 13 December 2012 and it seems appropriate to look (...)

The EU Court of Justice rules that a national competition authority is not precluded from applying Article 101(1) TFEU to an agreement situated below the threshold specified by de minimis notice (Expedia)
University of Leeds
Article published on Centre for Competition Policy blog. The Court of Justice’s Expedia ruling undermines the economic approach by eliminating the ‘de mimimis’ defence in object agreements* One of the most important holdings of the Court of Justice in recent times is buried in paragraph 37 of (...)

The EU Court of Justice confirms the Commission’s authority to represent the EU in bringing an action for damages before a national court based on an infringement of the Article 101 TFEU (Otis, Kone, Schindler and ThyssenKrupp)
Mircea & Partners (Bucharest)
I. Introduction In the field of competition law the Commission plays multiple roles and acts against several forms of anticompetitive activities prohibited by Articles 101 and 102 TFEU, if the interstate trade criterion is satisfied. National competition authorities may apply the above named (...)

The CJEU Advocate General Kokott asserts that agreements with an anti-competitive object cannot be deemed as de minimis infringements (Expedia)
Matrix Chambers
The concept of ‘appreciable restriction of competition’ in ‘object’ cases under Article 101(1) TFEU – AG Kokott in Expedia* On 6 September 2012 AG Kokott issued her Opinion in Case C-226/11 Expedia Inc. The case results from a preliminary reference made by the French Cour de cassation in (...)

The ECJ Advocate General Kokott hands down her opinion on the duty of the national authorities to respect the de minimis notice, while applying Art. 101 TFEU (Expedia)
Mircea & Partners (Bucharest)
I. Essential factual and legal aspects of the Expedia Inc Case The reference for a preliminary ruling has been initiated by a dispute between Expedia, an on-line travel agency, and the French Competition Authority, henceforth called FCA, concerning a selling joint-venture agreement between (...)

The European Court of Justice specifies the regime of the quantitative selection criteria in a selective distribution system under the motors vehicle block exemption regulation (Auto 24/Jaguar Land Rover)
UGGC Avocats (Paris)
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UGGC Avocats (Paris)
After a referral by the French Supreme Court (“Cour de cassation”) for a preliminary ruling on 29 March 2011, the CJEU provides interesting answers to the question of control of selection criteria in a quantitative selective distribution system. French case law has given rise to discussions as (...)

The CJEU confirms the power of the Czech NCA to punish a pre-EU-accession cartel on the basis of Art. 101 TFEU (Toshiba)
Kinstellar (Prague)
Proceedings before the Commission On 2 August 2006, the European Commission (the “Commission”) initiated proceedings regarding an alleged breach of competition rules by numerous companies producing gas insulated switchgear (“GIS”) who entered into a worldwide bid-rigging agreement. The cartel (...)

The European Court of Justice renders a judgment on a Czech preliminary reference in the gas insulated switchgear case - Ruling’s likely implications on parallel proceedings within the ECN and on the principle of ne bis in idem (Toshiba)
European Commission - DG COMP (Brussels)
Upcoming judgment in case C-17/10 Toshiba and Others to shed light on the question of parallel proceedings within the ECN* On 14 February, the Court of Justice will deliver a ruling on a preliminary reference by a Czech Regional Court in Brno, which is likely to provide welcome guidance on the (...)

A Portuguese Court refers liberal professional association case to ECJ for preliminary ruling (OTOC)
European Commission (Brussels)
Portugal: The Lisbon Court of Appeal makes Reference for Preliminary Ruling to ECJ in Liberal Professions Case (case C-1/12)* A preliminary ruling is pending following a reference made by the Lisbon Court of Appeal (the Court) to the Court of Justice of the European Union (ECJ) in the (...)

The EU Court of Justice rejects the argument that the prohibition on the import, sale and use of foreign decoding devices was necessary to ensure compliance with the UK blackout rule (Football Association Premier League)
Den Haag, Asser Institute
Premier League fans in Europe worse off after Murphy judgment* When the European Court of Justice (CJ) delivered its judgment in joined cases FA Premier League v QC Leisure and others (C-403/08) and Karen Murphy v Media Protection Services (C-429/08) (Murphy), it was deemed a radical (...)

The European Court of Justice issues its preliminary ruling holding that restricting the sale of European foreign satellite decoder cards is “contrary to the freedom to provide services” (Football Association Premier League)
Max Findlay Associates
Little, large and not proven* The big story for British sports fans has been the recent ruling by the Court of Justice of the European Union (ECJ) in the FA Premier League / Karen Murphy case. Effectively, the ECJ has said that British viewers can buy live English Premier League football (...)

The European Court of Justice validates exclusive rights for broadcasting of sports events provided they do not grant absolute territorial exclusivity (Football Association Premier League)
Vogel & Vogel
The Football Association Premier League (FAPL), holder of the television broadcasting rights for the Premier League, the leading professional football league competition for football clubs in England, grants exclusive licences in respect of those broadcasting rights to one TV channel per (...)

The EU Court of Justice issues a preliminary ruling holding that national courts need to balance on a case-by-case basis the interest of preserving the effectiveness of leniency programmes and that of facilitating private enforcement by third parties (Pfleiderer)
Winston & Strawn (London)
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DLA Piper (Frankfurt)
On 14 June 2011, the European Court of Justice (ECJ) handed down a key judgment regarding the interplay between national leniency programmes and the right of individuals to claim damages for losses in EU cartel cases. The ECJ held that documents submitted under the auspices of a national (...)

A Belgian Court seeks guidance from European Court of Justice in lifting cartel damages case (Kone, Otis, Schindle, ThyssenKrupp)
Van Bael & Bellis (Brussels)
According to recent press reports, in a judgment of 21 April 2011, the Brussels Commercial Court requested a preliminary ruling from the European Court of Justice (“ECJ”) in the lift cartel damages proceedings. In February 2007, the European Commission fined lift and escalator manufacturers (...)

The French Court of Cassation refers a question to the ECJ for a preliminary ruling on the required criteria for quantitative selective distribution (Auto 24/Jaguar Land Rover France)
Vogel & Vogel
The question of the criteria required for quantitative selective distribution continues to create intense debate in the case law in France. There are two opposing schools of opinion on the question both from legal commentators and in the case law: The first school argues that the European (...)

The ECJ Advocate General Kokott renders her opinion holding that the principle of exhaustion applies to the transmission of live football matches in the same way as to physical products (Football Association Premier League)
Cleary Gottlieb Steen & Hamilton (Brussels)
UK Pubs And Greek Decoders – The Implications Of The Premier League Case For The Dissemination Of Digital Content* The European Court of Justice is expected to render its judgment in Premier League v QC Leisure in the next few months. At the heart of the case, lies the question whether (...)

The ECJ Advocate General Kokott considers that territorial exclusivity agreements relating to the transmission of live football matches are contrary to European Union law (Football Association Premier League)
Wiggin (London)
I. Background The Football Association Premier League (“FAPL”) is the governing body of English Premier League football. Every year FAPL organises a competition in which 20 member clubs play against each other. FAPL is authorised by its members to license broadcasters to provide audiovisual (...)

The Irish Competition Authority wins beef industry case (Beef Industry Development Society)
European Commission (Brussels)
* Article published in ECN Brief 01/2011. The original title of this article appears below the e-Competitions title. Please note that the ECN is not the actual "author" of this case summary, but the mere source. As mentioned by the ECN : "The information provided by the ECN Brief is for (...)

The English High Court refuses to make a reference to the CJEU concerning the circumstances in which an court can make a declaration of non-liability for breach of Art. 101 TFEU where a company is the subject of an ongoing European Commission investigation (Conex Banninger / European Commission)
European Commission - DG COMP (Brussels)
The English High Court (Floyd J) refuses to make a reference to the Court of Justice of the European Union (‘ECJ’) concerning the circumstances in which an English court can make a declaration of non-liability for breach of Article 101 TFEU where a company is the subject of an ongoing European (...)

The Irish Supreme Court provides observations on the conditions contained in Art. 101(3) TFEU and remits the appeal to the High Court for fuller consideration (Beef Industry Development Society & Anor)
Arthur Cox (Dublin)
Competition Authority v Beef Industry Developments Society Limited & Anor concerns a rationalisation agreement in the beef processing sector in Ireland. In 1998 a report (the McKinsey Report) found that there existed significant and substantial over-capacity in the beef industry and that (...)

A French Court of Appeal makes a reference for a preliminary ruling to the ECJ on whether a general and absolute ban on Internet sales by approved distributors does constitute a “hardcore restriction” on competition by object within the meaning of Art. 81.1 EC (Pierre Fabre Dermo-Cosmétique)
Norton Rose Fulbright (Paris)
In a judgment dated 29 October 2009, the French Court of Appeal made a reference for a preliminary ruling under article 234 of the Treaty establishing the European Community (the “EC Treaty”), whereby the ECJ was asked to answer “the question whether a general and absolute ban on Internet sales to (...)

The European Court of Justice rules on capacity reduction agreements in Irish beef case (Beef Industry Development Society and Barry Brothers (Carrigmore) Meats)
Van Bael & Bellis (Brussels)
On 20 November 2008, in a ruling on a preliminary reference from the Irish Supreme Court, the European Court of Justice (ECJ) found that the object of an agreement between Irish beef processors designed to reduce overcapacity in the sector was anti-competitive. In its ruling, the ECJ followed (...)

The High Court of England and Wales refers questions to the ECJ regarding whether the prohibition on the use of foreign satellite decoder equipment and cards in the UK infringes, inter alia, Art. 81 EC (Football Association Premier League / QC Leisure)
European Commission - DG COMP (Brussels)
In two separate cases involving the same claimant, the High Court of England and Wales has referred questions to the European Court of Justice regarding whether the prohibition on the use of foreign satellite decoder equipment and cards in the UK infringes, inter alia, Article 81 EC. (...)

The Czech Regional Court in Brno cancels the decision of the President of the Office for the Protection of Competition concerning a well-known, long-running international cartel operating within the sector of gas insulated switchgears on the grounds of breaching the legal principle of ne bis in idem (GIS Cartel)
Weinhold Legal
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CMS Cameron McKenna (Prague)
I. Introduction On 26 June 2008, the Regional Court in Brno cancelled the decision of the President of the Czech Office for the Protection of Competition (the „Office«) concerning a well-known, long-running international cartel operating within the sector of gas insulated switchgears («GIS»). (...)

A Dutch Court makes a reference for a preliminary ruling to the ECJ concerning the application of Art. 81.1 EC to concerted practice between mobile phone operators (KPN Mobile)
European Commission - DG HR
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European Court of Justice (Luxembourg)
In December 2002, the Dutch Competition Authority (hereafter the ‘NMa’) imposed fines upon five Dutch mobile phone companies for breach of Article 6 of the Dutch Competition Act (a provision equivalent to Article 81 (1) EC). The NMa found that those mobile phone operators exchanged confidential (...)

The Slovak competition authority fines an international cartel while granting leniency (GIS-cartel case)
Havel, Holasek & Partners (Brno)
I. Relevant facts In the following decision, the Slovak Antimonopoly Office stated that the agreement between competitors restricted competition. The competitors coordinated their behaviour by pricing, dividing the markets, maintaining market shares, and limiting themselves in contracting, and (...)

A Portuguese Court upholds Competition Authority decision that imposed a fine to an association for price fixing, but reduces the amount of the fine by considering the association turnover as relevant in place of the associates’ turnover (Veterinarian Medical Association)
European Court of Justice (Luxembourg)
On 5 July 2007, the Lisbon Court of Appeals upheld the Lisbon Court of Comerce ruling which confirmed the Competition Authority (“PCA”) decision imposing a fine of € 75,935.00 (seventy-five thousand nine hundred and thirty-five euros) on the Veterinarian Medical Association (“VMA”) for price (...)

The Spanish Supreme Court declares that the “atypical agency agreements” between oil companies and Spanish petrol stations come within the scope of Art. 81.1 EC and national mirror provision, after having requested ECJ preliminary ruling (CEEES /CEPSA)
European Court of Justice (Luxembourg)
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Garrigues
On 4 May 1995, the Spanish Confederation of Service Station Businesses (“CEEES” in its Spanish initials) filed a complaint with the Servicio de Defensa de la Competencia (Lowest branch of the Spanish competition authority), against certain oil companies, including CEPSA. The CEEES complained that (...)

The Irish Supreme Court refers a preliminary question to the ECJ on the validity of the rationalisation programme of a crisis cartel (Beef Industry Development Society - BIDS)
London School of Economics
Background to the dispute All key players in the Irish Beef Industry benefited from support in the form of intervention pricing, private storage aid and export refunds under the Common Agricultural Policy (CAP) following Ireland’s accession to the then EEC. Following the structural reform of (...)

The Latvian Courts and NCA find out that trade between member States is not affected by an international supply agreement and refuse to ask for a preliminary ruling to the ECJ (Kempmayer Media)
Loze, Grunte & Cers
Facts On 7 June 2004, the Latvian Competition Council declared that an agreement signed on 14 November 2002 between Kempmayer Media Ltd. (a company of England and Wales) and a/s Digitlais Latvijas radio un televzijas centrs (a company of Latvia) restricted competition and thus declared the (...)

The German federal Court of justice finds, after referring the case to the ECJ for preliminary ruling, that formerly block exempted motor vehicle distribution agreements contain hardcore restrictions under the new EC Reg. 1400/2002 (“Kfz-Vertragshändler II”)
Hengeler Mueller (Dusseldorf)
I. Background The contractual relationship between the German car manufacturer BMW and its authorized car dealers is based on a formal dealer agreement. In respect of the termination of the contract, a 12 months’ instead of a 24 months’ notice applies if BMW sees the necessity to reorganise the (...)

The Spanish Supreme Court requests an ECJ preliminary ruling regarding the application of Art. 81 EC to an exchange of information agreement between financial institutions in relation to clients solvency and compliance (Asnef-Equifax)
Sheppard Mullin (Brussels)
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Eli Lilly and Company (Madrid)
This Order has been adopted by the Tribunal Supremo (“TS”) in the appeal lodged against a judgment of the Audiencia Nacional (“AN”) which decided on the appeal against a decision adopted by the Tribunal de Defensa de la Competencia (“TDC”) granting an individual exemption to an agreement on (...)

The Spanish Audiencia Provincial de Madrid refuses to submit a preliminary reference to the ECJ considering that this would only be relevant if the agreements at stake were deemed to be agency ones (Ahigal and Melón/Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, ‘Campsa’) concluded an agency agreement concerning the distribution of oil products with two companies, Ahigal, S.A. (“Ahigal”) and Melón, S.A. (“Melón”). In 2003, Ahigal and Melón decided to bring an action against Repsol Comercial de (...)

Dominance

The Swedish Court of Appeal endorses the EU Court of Justice’s finding of abuse of dominance in margin squeeze case (TeliaSonera)
Mircea & Partners (Bucharest)
I. Introduction On the 17 of February 2011 the Court of Justice of the European Union released its preliminary ruling in Case C-52/09 Konkurrensverket v TeliaSonera. At the origin of this litigation we could find an application for summons issued by Konkurrensverket on 21 December 2004. After (...)

The German Regional Court of Düsseldorf makes reference for a preliminary ruling to the CJEU on standard-essential patents (Huawei / ZTE)
Stanford University - Stanford Law School
German Court makes reference for a preliminary ruling to the CJEU on standard-essential patents* On 21 March 2013, the Landgericht Düsseldorf (“Düsseldorf Regional Court”) made a reference (the order is only available in German) for a preliminary ruling to the Court of Justice of the European (...)

The Austrian Supreme Court of Justice brings a preliminary ruling before the ECJ on the application of Article 102 TFEU to the Austrian commercial register (Compass)
Saxinger Chalupsky & Partners (Brussels)
The Compass group (“Compass”), a private provider of business information, runs a database of all Austrian businesses registered in the Austrian commercial register, for which end users have to pay. Besides the information available in the Austrian commercial register, which is run by the (...)

The EU Court of Justice clarifies powers of Competition Authorities enforcing EU competition rules under EC Reg. 1/2003 in a telecom case (Tele2 Polska)
European Commission (Brussels)
European Courts: ECJ clarifies Powers of National Competition Authorities enforcing EU Competition Rules* On 3 May 2011, the Court of Justice of the European Union gave judgment in the Tele2 Polska case concerning the interpretation of Article 5 of Council Regulation (EC) 1/2003. The Court (...)

The EU Court of Justice issues a preliminary ruling in a case concerning price squeeze abuses providing clear guidance on this issue (TeliaSonera)
Jones Day (Brussels)
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Jones Day (Brussels)
On 17 February 2011, the European Union Court of Justice ("CJ") issued a preliminary ruling in an ongoing case concerning price squeeze abuses. Questions were referred to the CJ from the Stockholm District Court, which has before it a case between Swedish telecommunications company TeliaSonera (...)

The EU Court of Justice clarifies the scope of the law in relation to pricing practices of vertically integrated companies in the telecommunications sector (TeliaSonera)
McDermott Will & Emery (Brussels)
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Unilever (Brussels)
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Jones Day (Brussels)
This article is the winner for the business category, economics section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 17 February 2011, the European Court of Justice (ECJ) – on a reference for a preliminary ruling by the (...)

The EU Court of Justice holds a preliminary ruling in a margin squeeze case in the telecomunications sector (TeliaSonera Sverige)
Airbus Defence and Space (Toulouse)
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European Commission - DG CNECT
The opinions expressed in this article are the personal views of the individual authors and do not necessarily represent the views of the employers of the authors. Warm thanks are expressed to Dilip Roy, Ben Harries and Simon Maunder for their contribution to this paper. Background Until the (...)

The EU Court of Justice holds a decision on margin squeeze in the telecomunications sector addressing the issue of indispensability (TeliaSonera)
Cleary Gottlieb Steen & Hamilton (Brussels)
How Indispensable Is Indispensability?* In its recent TeliaSonera judgment, the Court of Justice discusses whether a margin squeeze can only be abusive if the dominant company has a duty to supply the input at issue. The Court concludes that a duty to supply is not needed. The judgment, (...)

The Danish Supreme Court refers questions concerning discriminatory pricing to the European Court of Justice (Post Danmark)
European Commission (Brussels)
Denmark: The Supreme Court refers Questions concerning Discriminatory Pricing to the ECJ On 27 April 2010, the Danish Supreme Court referred to the ECJ two questions concerning discriminatory pricing in the Post Danmark case. The questions relate to abuse of dominant position on the market for (...)

The Polish Supreme Court requests preliminary ruling from the EU Court of Justice on the interpretation of Article 5 of Regulation 1/2003 (Tele2 Polska)
European University Institute (Florence)
The parallel application of European and national competition rules by the President of the Polish Office of Competition and Consumer Protection (UOKiK) in the proceedings concerning allegedly anticompetitive conduct of Telekomunikacja Polska and the question about the limitations to national (...)

The Swedish Market Court makes a preliminary reference to the ECJ on copyright management by collecting societies (Kanal 5 and TV 4)
General Court of the European Union (Luxembourg)
Introduction Since Sweden joined the European Union in 1995, the Swedish courts have been reluctant to make preliminary references to the European Court of Justice (“ECJ”) in all fields of law. Up until 2006, the Swedish courts had made on average 5 preliminary references per year, in (...)

The Athens Court of Appeal seeks a preliminary reference in the case of a pharmaceutical company denying the supply of certain drugs to Greek wholesale (GlaxoSmithKline)
University College London
Factual background The plaintiff was a company operating at the wholesale level, in the pharmaceutical sector, supplying pharmacies and hospitals with drugs and other products related to that sector. The defendant was the Greek Subsidiary of the GlaxoSmithKline Company incorporated in the UK. (...)

State Aids

The EU Court of Justice renders preliminary ruling on the notion of “linked enterprises” in relation to a dispute on the calculation of the amount of an investment subsidy (HaTeFo)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog SMEs Linked through Natural Persons Two or more enterprises may constitute a single undertaking when their owners and/or managers are related in a way that they can act jointly to exercise influence over the decision of those enterprises. (...)

The Court of Justice of the EU rules that under article 4(3) TEU a national court must take into account the Commission’s statements of position on the meaning and consequences of a Commission Decision (Mediaset)
Blackstone Chambers
“What’s in a Commission Decision?” and other lessons for national courts* In a decision of 13 February 2014, the Court of Justice of the European Union (“CJEU”) added a little gloss to an otherwise well-trodden path in relation to the binding aspects of a Commission Decision. For instance, it is (...)

The EU Court of Justice rules on questions referred by an Italian tribunal regarding the recovery of state aid from an Italian telecom company (Mediaset SpA / Ministero dello Sviluppo Economico)
FratiniVergano
I. Facts On 24 January 2007, the Commission adopted the decision 2007/374 which stated that the scheme of aid applied to digital terrestrial broadcasters offering pay-TV services and cable pay-TV operators in Italy was incompatible with the internal market. Following the adoption of that (...)

The EU Court of Justice rules that the national courts dealing with a case of recovery of illegal state aid may not disregard the statement of position made by the Commission in the relevant decision (Mediaset)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Role of National Courts in Recovery of Incompatible State Aid* Introduction In December I examined the judgment in the case of Lufthansa v Frankfurt-Hahn, which laid down certain obligations for national courts whenever they are petitioned to (...)

The EU Court of Justice interprets the concept of intervention through state resources and finds that the offset of additional costs arising from the obligation to purchase green electricity constituted state intervention (Vent de Colère)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Non-Equivalence of the Various Methods of Supporting Green Electricity* Introduction Ever since the judgment of the Court of Justice in 2001 on PreussenElektra [case C-379/98], Member States have been grappling with the question of how to (...)

The EU Court of Justice rules that a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price is imputable to the state (Association Vent De Colère / Ministre de l’Écologie)
European Procurement Law Group
CJEU follows AG Jääskinen in revisiting PreussenElektra and minimising Doux Elevages’ requirements for State imputability of aid measures (C-262/12)* In its Judgment of 19 December 2013 in case C-262/12 Vent De Colère and Others, the Court of Justice of the EU has largely followed AG Jääskinen’s (...)

The EU Court of Justice Advocate General Mengozzi clarifies the role of national courts in case of simultaneous state aid investigation by the Commission (Lufthansa, Frankfurt airport, Ryanair)
Van Bael & Bellis (Brussels)
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Abbie (Wavre)
On 27 June 2013, Advocate General Mengozzi rendered an opinion clarifying the role of national courts in case of simultaneous state aid investigation by the European Commission (the “Commission”). The case stems from a dispute between Lufthansa and the Frankfurt airport regarding the (...)

The EU Court of Justice rules on the interpretation of the Commission’s decision concerning regional existing regional aid schemes for processing and marketing of German agricultural products (Magdeburger)
DLA Piper Weiss-Tessbach (Vienna)
This decision by the Court of Justice concerns the interpretation of Article 2 of Commission Decision 1999/183/EC of 20 May 1998 regarding State aid granted on the basis of existing regional aid schemes for processing and marketing of German agricultural products. The preliminary reference has (...)

The European Court of Justice rules on two state aids in the books distribution sector holding that their twenty-year duration is not an “exceptional situation” under European law (CELF, SIDE)
Cleary Gottlieb Steen & Hamilton (Brussels)
Court of Justice: A twenty-year duration of a State aid case does not amount to an “exceptional situation” under the State aid rules.* On March 11, 2010, the Court of Justice of the European Union (the “ECJ”) rendered a judgment (preliminary ruling) in response to two State aid questions referred (...)

The French Council of State orders stay in proceedings regarding the recovery of unlawful aid in the CELF case and refer to the ECJ the question of the extent of the national courts’ obligation in such "exceptional circumstances" (CELF II)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual background CELF is a cooperative society in public limited company form and operates as an export agent. It aims to process orders from abroad and from the French overseas territories and departments for books, brochures and any communication media and, more generally, to perform (...)

The Belgian Civil Supreme Court applies the ruling of the ECJ in the Van Calster case and holds that the tax on slaughterhouses does not constitutes unlawful State aid as it is part of an aid scheme declared compatible (Slachthuis Swaegers)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background Under the Belgian Animal Health Act 1987 (the “1987 Act”), compulsory charges were levied on slaughterhouses. These charges were subsequently used to finance animal welfare measures that improve the hygiene, health and quality of life of animals. This scheme had, however, (...)

The Italian Supreme Court refers a question for preliminary ruling to the ECJ to ask whether Italian tax relief measures for cooperative societies constitute State aid within Art. 87 EC (Famiglia Coop Agricola Carli Albino)
EUJUS Law Firm (Rome)
Factual background Under Italian tax rules, cooperative societies benefit from significant fiscal reliefs. The ability to benefit from the reliefs is dependant upon the not-for-profit nature of the activity performed by the cooperative. Similarly to tax purposes, the not-for-profit nature is (...)

The Portuguese Supreme Administrative Court receives preliminary ruling from the ECJ on State aid case in public transport field (Antrop)
New University of Lisboa - Faculty of Law
,
University of Coimbra - Faculty of Law
Brief description of the facts and legal issues Parties: The applicant: Associação Nacional de Transportadores Rodoviários de Pesados de Passageiros (hereinafter referred to as "Antrop") and Others; The defendant: Conselho de Ministros, Companhia Carris de Ferro de Lisboa SA ("Carris"), (...)

A French Administrative Court of Appeal rules that a claim calling into question the validity of a decision of the Commission not to raise objection against alleged State aid measures raised serious difficulties requiring a preliminary ruling from the ECJ (Régie Networks)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background Régie Networks, an undertaking selling advertising space for the NRJ Group’s local radio stations, paid EUR 152 524 by way of parafiscal charge levied on advertisements broadcast on radio and television in 2001. It claimed reimbursement of that sum from the local tax (...)

The Spanish Supreme Court brings a preliminary question before the ECJ on State aid issue relating to obligatory investments for the financing in advance of European and Spanish cinematographic and TV films (Unión de Televisiones Comerciales Asociadas)
Hogan Lovells (Madrid)
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Allianz (Brussels)
Factual Background: An appeal before the Supreme Court by the Union of Associated Commercial Televisions ("UACT") against Royal Decree 1652/2004 on obligatory investments for the financing in advance of European and Spanish cinematographic and TV films ("Royal Decree 1652/2004") on the grounds (...)

The European Court of Justice rules that pharmaceutical laboratories liable to a tax on direct sales of medicines are entitled to claim the reimbursement of the tax where the exemption of wholesale distributors constitute an illegal State aid (Boiron)
Kramer Levin Naftalis & Frankel (Paris)
,
Eversheds Sutherland (Paris)
Opinion of Advocate General Antonio Tizzano, 30 March 2006, Case C-526/04, Laboratoires Boiron SA v. Agence centrale des organismes de sécurité sociale (ACOSS) ECJ, 7 September 2006, Laboratoires Boiron, Case C-526/04. In a preliminary ruling requested by the French Civil Supreme Court in the (...)

The French Council of State refers to the ECJ for preliminary ruling on the extent of the recovery obligation of an unlawful aid later declared compatible by the Commission (CELF I)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual background CELF is a cooperative society in public limited company form and carries on the activity of export agent. Its aims are to process directly orders for abroad and the French overseas territories and departments for books, brochures and any communication media and, more (...)

The French Administrative Supreme Court confirms the classification as State aid of the subsidies granted for handling small orders of French-language books but refers to the ECJ for a preliminary ruling concerning the range of the obligation of restitution of an unnotified aid (CELF I)
Schmitt Avocats
By a decision of 5 October 2004, the Administrative Court of Appeal of Paris classified as a State aid the subsidies granted by the French State to the Centre d’Exportation du Livre Français (“CELF”), entity created at the end of the 70’s to contribute to the diffusion of French-language books (...)

The Italian Supreme Court holds that a cooperative societies’ tax break should be qualified as a State aid because it involves a lower tax income into the public budget and refers the case to the ECJ for a preliminary ruling (Maricoltori Alto Adriatico)
EUJUS Law Firm (Rome)
Factual background Under Italian tax rules, cooperative societies benefit from significant tax exemptions. After an inspection of the Italian tax policy, the local tax office of Monfalcone decided that Mr. F.M.’s individual income tax return, for the years 1984, 1985 and 1986, was inaccurate. (...)

The French Supreme Court refers to the ECJ for a preliminary ruling concerning (i) the repayment of a mandatory contribution based on the turnover of pharmaceutical laboratories and (ii) national rules of procedure leading to State aid classification (Laboratoires Boiron)
Schmitt Avocats
By decision of 14 December 2004, the French Cour de Cassation referred to the European Court of Justice (ECJ) for a preliminary ruling concerning the classification as state aid of the contribution instituted by Article L. 245-6-1 of the Social Security Code and the way to obtain its (...)

The French Supreme Court refers to the ECJ for a preliminary ruling concerning the qualification as State aid of the French mutual assistance tax for the benefit of traders and craftsmen (Magasins Galeries Lafayette)
Schmitt Avocats
By decision of 16 November 2004, the French Supreme Court, the Cour de Cassation, referred to the ECJ for a preliminary ruling, under Article 234 EC, concerning the classification as state aid of the French mutual assistance tax for the benefit of traders and craftsmen (the Tax). This Tax, (...)

A French Tribunal in charge of social security cases applied to the ECJ for a preliminary ruling asking whether a taxation’s exemption can be considered as not constituting State aid but mere compensation of public service costs (Ferring)
CRDEI - Centre de Recherche et de Documentation Européennes et Internationales
The important case law of the ECJ often finds its origin in a preliminary question raised by national judges of first instance (e. g. ECJ, April 30th, 1986, Asjes a. o., Joined Cases 209/84 209/84, 210/84, 211/84, 212/84, 213/84 and 213/84, [1986] ECR 1425, “Nouvelles Frontières”, preliminary (...)

The French Supreme Administrative Court implemented the ECJ "Saumon" ruling while limiting the time-period of annulment of the un-notified aid (Saumon)
Université Aix-Marseille
The Fédération nationale du commerce extérieur des produits alimentaires and the Syndicat national des négociateurs et transformateurs de saumon brought an action against the interministerial order of 15 april 1985 implementing decree n° 84-1297 of 31 december 1984 imposing parafiscal charges for (...)

Procedures

The EU Court of Justice establishes that national provisions on civil liability for loss caused by a cartel shall include compensation for loss resulting from price setting above the level expected in competitive conditions by a non-party to the cartel (Kone / ÖBB-Infrastruktur)
University of East Anglia - CCP (Norwich)
,
European Procurement Law Group
When the CJEU opens the umbrella, lawyers and economists get ready for a warm shower of damages claims (C-557/12)* In its Judgment in Kone, C-557/12, EU:C:2014:917, the Court of Justice of the European Union (CJEU) has followed the highly controversial proposal of AG Kokott (see my criticism (...)

The EU Court of Justice rules that the principle of effectiveness precludes a provision of national law under which the access to leniency documents is obstructed with no place left for a proportionality test (Donau Chemie)
Mircea & Partners (Bucharest)
I. Introduction The main pursuit of this article is to analyse the judgment of CJEU by comparing it to the conclusions provided by AG Jääskinen on the 7 February 2013. The facts have been described previously in my article from e-Competitions N°51003. The Austrian Consent Rule as enshrined by (...)

The ECJ AG Kokott establishes that an unobjectionable error of law may exonerate an undertaking from antitrust liability to pay fines (Schenker)
Mircea & Partners (Bucharest)
I. Introduction Should the competition authorities bring proceedings against subjectively innocent undertakings? The assumption made by the respondents in the present case was that their own conduct was lawful and this hypothesis of lawfulness could be strengthened by the fact that during a (...)

Advocate General Jääskinen of the ECJ puts forward that an absolute level of protection should be afforded by legislative means to the leniency applicants (Donau Chemie)
European Procurement Law Group
Why is #competition law so special? Or how #leniency will kill private #damages actions (AG C-536/11)* In his Opinion of 7 February 2013 in case C-536/11 Donau Chemie and Others, Advocate General Jääskinen has developed a line of reasoning that goes well beyond the issue at hand (whether access (...)

EU Court of Justice Advocate General Jääskinen concludes that the Austrian consent rule impedes access to justice by damages claimants and it is precluded by Union law (Donau Chemie)
Mircea & Partners (Bucharest)
I. Introduction The main pursuit of this article is to use the opportunity given by the present case in order to revisit the apparent dichotomy existent between private and public enforcement of competition law. My claim is that the two avenues must be seen as complementary rather than (...)

The European Court of Justice rules that the EU Commission can bring follow-on actions for damages on behalf of the EU in cartel cases (Otis)
Jones Day (Brussels)
,
McDermott Will & Emery (Paris)
,
McDermott Will & Emery (Paris)
EU Commission Can Bring Follow-On Actions for Damages on Behalf of the European Union in Cartel Cases* On 6 November 2012, the Court of Justice of the European Union (CJEU) ruled that the European Commission was entitled to represent the European Union in an action for damages before national (...)

The EFTA Court establishes that courts against whose decisions there is no judicial remedy under national law should request an advisory opinion in compliance with their duty of loyalty (Irish Bank Resolution / Kaupthing Bank)
University of Fribourg
Case E-18/11: Small steps towards a preliminary reference procedure for the EEA EFTA countries?* The EFTA Court handed down an interesting decision in September 2012 which merits a short comment. The Surveillance and Court Agreement of the EEA EFTA countries does not foresee a procedure akin (...)

The EU Court of Justice further defines the status of public authorities under EU competition law in commercial registry database case (Compass)
Van Bael & Bellis
In a preliminary ruling delivered on 12 July 2012, the Court of Justice of the EU ("ECJ") provided important guidance on the status, under EU competition law, of public authorities that maintain a commercial registry database of companies and that make data contained therein publicly (...)

The Austrian Cartel Court brings a preliminary ruling before the European Court of Justice on the question of access to cartel files by third parties adversely affected by a cartel (Printing chemical producers)
Saxinger Chalupsky & Partners (Brussels)
In 2010, several printing chemical producers were fined by the Austrian Cartel Court for their participation in a printing chemicals cartel in Austria. The investigation was initiated due to a leniency application by one of the cartel members. After the conclusion of the procedure, an (...)

The EU Court of Justice rules that EU law does not exempt leniency documents lodged with national competition agencies from requests for disclosure in private actions (Pfleiderer)
Morgan Lewis (London)
,
Squire Patton Boggs (London)
On 14 June 2011, the European Court of Justice ("ECJ") ruled that EU law does not exempt leniency documents lodged with national competition agencies ("NCAs") from requests for disclosure in private actions. In a reference for preliminary ruling from a German court, Pfleiderer v (...)

The EU Court of Justice acknowledges the need to weigh the different interests at stake when granting access to documents containing leniency applications in the context of civil claims for damages, in line with US courts (Pfleiderer)
Callol, Coca & Asociados
The European Court of Justice has issued a Judgement (Decision of 14 June 2011, Pfleiderer, Case C-360/09) on a preliminary ruling from a national court, on a key matter regarding antitrust damages claims. The situation encountered by the national court, in essence, referred to a petition by a (...)

The EU Court of Justice rules that a national competition authority cannot adopt a decision ruling Articles 101 and 102 TFEU inapplicable (Tele2 Polska)
Vogel & Vogel
The number-one Polish telecom operator – former State owned monopoly - was suspected of a violation of Article 8 of the Polish law on competition and consumer protection and of Article 102 of the Treaty on the Functioning of the European Union (TFEU). At the end of the procedure the Polish (...)

The EU Court of Justice adopts a preliminary ruling in a telecom case depriving Competition Authorities of the power to take negative decisions while enforcing competition rules under EU Reg. 1/2003 (Tele2 Polska)
Liege Competition and Innovation Institute
The Perverse Effects of the Court’s Ruling in Tele2 Polska* In its recent Tele2 Polska ruling, the Court deprived the National Competition Authorities "NCAs" of the ability to take "negative decisions" (C-375/09, Prezes Urzędu Ochrony Konkurencji i Konsumentów contre Tele2 Polska sp. z o.o., 3 (...)

The European Court of Justice declines jurisdiction to rule on preliminary reference from a national TV regulator (RTL Belgium)
Van Bael & Bellis (Brussels)
On 22 December 2010, the European Court of Justice (“ECJ”) declined jurisdiction to answer a question for a preliminary ruling referred by the Licensing and Control Authority (Collège d’autorisation et de contrôle) of the Belgian French-speaking Broadcasting Authority (Conseil supérieur de (...)

The ECJ Advocate General Mazák finds that NCAs have no competence to acquit companies of infringements (Tele2 Polska)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 7 December 2010, European Court of Justice (“ECJ”) Advocate General (“AG”) Jan Mazák published his opinion in Tele 2 Polska, advising the Court to rule that national competition authorities (“NCAs”) should not be entitled to declare certain practices compatible with Articles 101 or 102 of the (...)

The European Court of Justice rules on the right of national competition authorities to participate in appeals against their own decisions (VEBIC)
Van Bael & Bellis (Brussels)
In a judgment of 7 December 2010, the European Court of Justice (“ECJ”) adopted a preliminary ruling relating to the right of a national competition authority to participate in appeals before a judicial court against its own decisions. The preliminary questions were raised by the Brussels Court (...)

The Amsterdam Court of Appeal holds, after having heard the European Commission’s submissions provided as amicus curiae on the basis of Art. 15.3 Reg. 1/2003, that fines imposed by the EU Commission for breach of competition rules are not deductible from taxable profits (X B.V. Belanghebbende / Inspecteur Belastingdienst)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
The present judgement from the Gerechtshof Amsterdam (the Court of appeal of Amsterdam) follows the preliminary ruling issued by the European Court of Justice on 11 June 2009 in case C-429/07, Inspecteur van Belastingdienst v. X BV. The case at hand relates to a dispute between company X and (...)

The Bulgarian Supreme Administrative Court discusses in detail the legal consequences of failure to comply with the obligation to inform the EU Commission under Art. 11.3 and 4 of Reg. 1/2003 (Insurance Cartel - Civil Liability)
University Paris Dauphine
Abstract: The case provides an useful illustration of the impact the national institutional and procedural autonomy principle may have on the present EU antitrust enforcement system. Indeed, since Regulation 1/2003 is directly applicable within the national legal orders and consequently the (...)

The Brussels Court of Appeal refers several preliminary questions to the ECJ on the involvement of a NCA in appeal proceedings (VEBIC)
Arendt & Medernach (Luxembourg)
,
NautaDutilh (Luxembourg)
Facts of the case 1. On 25 January 2008, the Belgian Competition Council (Conseil de la concurrence) has condemned VEBIC, a professional association of Flemish bakeries, for having established a common cost index inciting Flemish bakeries to increase their prices in violation with the national (...)

A Belgian Court makes preliminary reference to the ECJ regarding compatibility of Belgian procedural rules with EC regulation 1/2003 (VEBIC)
Sheppard Mullin (Brussels)
,
Hogan Lovells (Amsterdam)
,
European Court of Justice (Luxembourg)
Introduction On 30 September 2008, the Brussels Court of Appeal made a preliminary reference to the European Court of Justice (“ECJ”) relating to the compatibility of the Belgian procedural rules governing appeal cases with EC Regulation (EC) n° 1/2003 on the implementation of the rules on (...)

Swedish Courts disregard direct effect of the EC Utilities Directive and reject request for referral to the ECJ on its interpretation (Swebus/Storstockholms Lokaltrafik)
Kreab
Introduction Apart from the ground breaking ruling by the European Court of Justice (ECJ) in the Altmark state aid case in 2004 , the European Commission and the European Courts have not delivered any significant competition, state aid or public procurement decisions in relation to the (...)

The Polish Supreme Court sheds light on the notion of the Court of last instance under the Polish law in the light of Art. 234.3 EC (Polish telecommunications regulator)
European University Institute (Florence)
In September 2005 the President of the URTiP (the predecessor of the UKE, the Polish telecommunications regulator) issued a resolution, wherein it declared the market for access and call origination in the public mobile networks not to be efficiently competitive. One of the operators active on (...)

A Dutch Court applies for an ECJ preliminary ruling on the application of Art. 15.3 Reg. n° 1/2003 by the EC Commission within the framework of a tax case raising only indirectly EC competition provisions (X B.V. Belanghebbende/Inspecteur Belastingdienst)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
In November 2002, the European Commission imposed a fine upon a Dutch company, (hereafter “X”), for breach of Article 81 EC. The payment of this fine was partly made by another company affiliated to X. Under Dutch tax law, a fine imposed upon a company by a Community institution may not be (...)

An Italian Court awards to a consumer damages amounting to twofold the loss suffered as a result of a cartel among insurance companies after obtaining an ECJ preliminary ruling (Manfredi)
Shearman & Sterling (Rome)
The decision is the final step of the same Manfredi case (ECJ, July 13th, 2006, Manfredi, Joined Cases C-295/04 C-295/04, C-296/04, C-297/04 and C-298/04, [2006] ECR I-6619) which prompted, after Courage (ECJ, September 20th, 2001, Courage and Crehan, Case C-453/99, [2001] ECR I-6297), a (...)

The European Court of Justice renders a preliminary ruling under article 234 EC considering issues raised in the European Commission’s Green Paper on antitrust damages actions (Manfredi)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"The Manfredi judgment of the ECJ and how it relates to the Commission’s initiative on EC antitrust damages actions"* The reactions to the Green Paper On 20th December 2005, the Commission published a Green Paper on damages actions for breach of the EC antitrust rules. The Green Paper has been (...)

The European Court of Justice rules that the Greek Competition Authority is not a “court or tribunal” in the meaning of Art. 234 EC and therefore can not apply for an ECJ preliminary ruling (Syfait / GlaxoSmithKline)
White & Case (Brussels)
On 31 May 2005 the European Court of Justice (ECJ) delivered its judgment in Case C-53/03, Syfait and others v. GlaxoSmithKline AEVE and GlaxoSmithKline plc (“Syfait”), which raises the question of whether a dominant pharmaceutical undertaking is under a duty to supply unlimited quantities of (...)

The Hungarian Supreme Court refuses to apply EU law to cases started before Hungary’s accession to the EU (HCM)
Oppenheim
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Oppenheim - Budapest
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Oppenheim - Budapest
Under the applicable provisions of Hungarian law it is (i) the parties to the administrative procedure (in this case the parties in the proceedings initiated by the HCO) or (ii) those whose rights or legal interests are directly affected by the case who are entitled to request the judicial (...)

The Queen’s Bench Division of the High Court of England & Wales refers to the ECJ on the fact for parties to an agreement to use allegations of breach of competition law to avoid honouring their obligations under a commercial contract (SUNAG)
Reed Smith (London)
Compagnia di Navigazione Maritime Sri & Others (EGP Group) and Andrew Merzario & Others (non-EGP Group), nickname (SUNAG). This was a commercial private arbitration case which ended up before the English High Court, Queen Bench Division (Case C-339/95), and was referred to the European (...)

Regulations

The UK High Court of Justice rules that an auction website cannot be held responsible for fake products sold through its auction web site and refers to the ECJ for some other key issues (L’Oréal v. eBay)
EDHEC Business School
Is eBay primarily and/or jointly liable for trademark infringements committed by some of its users selling counterfeit items through the auction website? Does the online auctioneer itself commit infringements by using luxury brands as advertising keywords, in order to promote its online (...)

Public sector

The EU Court of Justice establishes that a horizontal in-house acquisition of goods fell within the scope of the procurement directive in force at the relevant time (Datenlotsen Informationssysteme)
European Procurement Law Group
Has Directive 2014/24 come too late for horizontal in-house provision? (C-15/13)* In its recent Judgment in case C-15/13 of 8 May 2014 Datenlotsen Informationssysteme, the CJEU has addressed a so-called ’horizontal’ in-house provision of goods and rejected the proposal of AG Mengozzi to exclude (...)

Advocate General Yves Bot proposes to reduce the safe harbour for directly awarded public contracts subjected to prior transparency (Fastweb)
European Procurement Law Group
AG proposes to reduce safe harbour for directly awarded public contracts subjected to prior transparency (C-19/13)* In his Opinion of 10 April 2014 in case C-19/13 Fastweb, Advocate General Bot has proposed an interpretation of Art 2d(4) of Directive 89/665 (as amended by dir 2007/66) that (...)

The CJEU AG Mengozzi supports an extension of the "in-house" public procurement exception beyond its current boundaries (Datenlotsen Informationssysteme)
European Procurement Law Group
AG Mengozzi on extension of "in-house" to "public house" procurement exception (C-15/13)* In his Opinion of 23 January 2014 in case C-15/13 Datenlotsen Informationssysteme (not available in English), Advocate General Mengozzi advocated for an extension of the "in-house" public procurement (...)

The EU Court of Justice declares that a scheme of compulsory minimum tariffs for certification services addressed to tenderers in a public procurement procedure is not illegal per se under the EU competition and free movement rules (SOA Nazionale Costruttori)
European Procurement Law Group
CJEU rubber stamps Italian minimum tariffs for certification in public procurement, subject to proportionality (C-327/12)* In its Judgment of 12 December 2013 in case C-327/12 Soa Nazionale Costruttori, the Court of Justice of the EU has followed rather closely AG Cruz Villalon’s Opinion (...)

The EU Court of Justice rules that the authorities of a Member State may rely on the provisions of a non-transposed directive against a body holding a public service concession (Portgás)
European Procurement Law Group
CJEU: vertical effect of Directives goes both ways (C-425/12)* The Judgment of the CJEU of 12 December 2013 in case C-425/12 Portgás may appear to be of interest only for public procurement aficionados (and, even then, only for hardcore ones), as it deals with the potential applicability of the (...)

The EU Court of Justice establishes that avoidance of litigation does not constitute an overriding reason of general interest that can be invoked in order to uphold a direct award of a concession contract (Belgacom)
European Procurement Law Group
CJEU rejects avoidance of litigation as a valid ’overriding reason in the public interest’ justifying a direct award of a concession contract (C-212/12)* In its Judgment of 14 November 2013 in case C-221/12 Belgacom, the CJEU has rejected that the avoidance of litigation can be considered a (...)

The EU Court of Justice establishes that a concession not being capable of generating substantial net revenue can still be of economic interest to undertakings located in a different member state (Comune di Ancona / Regione Marche)
European Procurement Law Group
CJEU kicks new #concessions Directive in the shins (C-388/12)* In its Judgment of 14 November 2013 in case C-388/12 Comune di Ancona, the CJEU has put forward an argument for the existence of cross-border interest in the award of (public service) concession contracts that openly challenges the (...)

The EU Court of Justice rules that a general interdiction to rely on the capacities of more than one undertaking for the same qualification category imposed on tenderers is precluded by law (Mannocchi Luigino)
European Procurement Law Group
A jigsaw of qualifications or a procurement puzzle?: CJEU launches a depth charge against certification systems (C-94/12)* In its Judgment of 10 October 2013 in case C-94/12 Swm Costruzioni 2 and Mannocchi Luigino, the Court of Justice of the EU has followed the Opinion of AG Jääskinen (which I (...)

The EU Court of Justice rules that the principle of equal treatment must be interpreted as not precluding a contracting authority from asking a candidate to provide additional information after the deadline (Manova)
European Procurement Law Group
CJEU flexibilises treatment of formally non-compliant bids in public procurement (C-336/12)* In its Judgment of 10 October 2013 in case C-336/12 Manova, the Court of Justice of the EU (CJEU) has followed its own approach in Slovensko and created some room for the flexible interpretation of (...)

The AG Villalón of the CJEU finds that a tariff calculation formula that automatically multiplies the rate payable for the certification activities according to the number of tenders is precluded by EU law (SOA Nazionale Costruttori)
European Procurement Law Group
AG Cruz Villalon opposes Italian minimum #tariffs for #public procurement #certification (C-327/12)* In his Opinion of 5 September 2013 in case C-327/12 Soa Nazionale Costruttori (not available in English), AG Cruz Villalon analyses the compatibility with EU free movement (ie freedom of (...)

The Swedish Supreme Court holds that the time when the contract implementing an illegal direct award has been initiated should coincide with the time when the award decision may be subject to legal review (Swedish Immigration Office)
Mircea & Partners (Bucharest)
I. Introduction Konkurrensverket (Swedish Competition Authority) applied for public procurement fines against the Migrationsverket (Swedish Immigration Office) before the court of first instance on the 17 June 2011. The value of the contract in question exceeded € 8 million (SEK 69 million), (...)

The AG Jääskinen of the CJEU postulates that the prohibition of reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria is precluded by EU public procurement law (Mannocchi Luigino)
European Procurement Law Group
With a little help from my friends: A flexible and competition-oriented interpretation of rules on reliance on third party capabilities in public procurement (Opinion in C-94/12)* This is an extended version of the comment previously posted on Albert’s personal blog. According to the current (...)

The EU Court of Justice reaffirms its dictum on in-house providing as an exception to the applicability of the EU public procurement directives (Econord / Varese)
European Procurement Law Group
In-house providing and (minimum) "effective" public control: Sunset or breaking dawn for purely public (commercial) service providers? (C‑182 and 183/11)* In its Judgment of 29 November 2012 in Joined Cases C‑182/11 and C‑183/11, Econord SpA v Comune di Cagno and Comune di Varese (C-182/11) and (...)

The EU Court of Justice leaves for the referring court to determine whether the procured material could be regarded as specially designed and developed for military purposes in order to decide on compliance with the duty to organize a tender procedure (Insinööritoimisto InsTiimi)
ClientEarth (Bruxelles)
Procuring military equipment under the public procurement directive* As one of the last bastions of purely national competence, trade in arms is excluded from the application of the Treaty rules. Article 346 TFEU provides that the Treaties do not preclude Member States to trade and procure war (...)

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