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Access to file

Anticompetitive practices

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 Romanian Competition sanctions a large number of electric and electronic producers for participating in a cartel during buy-back campaigns for electric and electronic equipment (Arctic, Electrolux, Agis Computer...)
DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
Introduction The Romanian Competition Council (“RCC”) published in June 2014 a set of decisions concerning an alleged cartel on the market for the commercialization of electrical and electronic equipment (“EEE”) and the market for waste management of EEE ("RCC Investigation"). The RCC (...)

The German Federal Constitutional Court regards the disclosure of leniency applicants’ documents as not violating fundamental constitutional rights in the cartel damages proceedings (Aufzugskartell)
Hogan Lovells (Munich)
I. The Facts Following the European Commission’s decision to impose fines against a group of lift and escalator manufacturers for violating EU antitrust rules in February 2007 (COMP/38.823), several building contractors initiated civil damages claims before the Regional Court of Berlin at the (...)

The EU General Court dismisses the parallel actions brought by two diamonds dealers against the Commission’s decisions not to open an antitrust investigation into certain distribution agreements established by world’s largest producer of rough diamonds (BVGD, Spira, De Beers)
Mircea & Partners (Bucharest)
I. Introduction Any natural or legal person who can show a legitimate interest may lodge a complaint concerning an antitrust infringement as stipulated by article 7 of the Regulation No 1/2003. The Commission is not required to investigate each of the complaints lodged with it, but only to (...)

The Athens Administrative Court of Appeal upholds the NCA’s decision finding infringements of Art 101 and 102 TFEU and Art 1 and 2 Act 703/1977 through the implementation of exclusionary practices in the market for salty snack products (Tasty Foods)
Bank of Greece
Introduction On 13 March 2013, the Athens Administrative Court of Appeal (Dioikitiko Efeteio Athinon, hereafter: the Court) delivered Ruling No 869/2013 upholding Decision No 520/VI/2011 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC). The contested (...)

An Advocate General of the ECJ postulates that the EU principle of effectiveness precludes a provision of national law which makes the grant of access to documents by a national court subject to the consent of the antitrust infringers (Donau Chemie)
Matrix Chambers
Pfleiderer revisited: the AG Opinion in Donau Chemie* On 7 February, AG Jääskinen issued his Opinion in Case C-536/11 Donau Chemie, a much anticipated case (at least among competition lawyers) concerning the compatibility with EU law of an Austrian law which prohibits third party access to the (...)

Dominance

The Hungarian Competition Authority imposes fines on a retailer for abuse of dominance (Auchan)
Hungarian Competition Authority (Budapest)
More than 1 billion HUF fine on Auchan for abusing its significant market power* The Gazdasági Versenyhivatal (GVH - Hungarian Competition Authority) in its decision on 23 March 2015 imposed a total fine of 1.061.300.000 HUF (3.6 million Euro) on Auchan Magyarország Kft. for infringing Act CLXIV (...)

The Lisbon Appeal Court confirms 2.7 million EUR fine for discriminatory pricing under Art. 102 national equivalent, and revolutionizes access to information for third parties (Sport TV)
Eduardo Paz Ferreira & Associados
On 11 March 2015, the Lisbon Appeal Court (LAC) rejected all arguments put forward by the appellant and confirmed the judgment of the Competition, Regulation and Supervision Court (CSRC) of 4 June 2014, which had, in turn, confirmed (with a reduction of the fine, from 3.7 to 2.7 million EUR) (...)

The German Competition Authority prohibits the operator of factory outlet center to use radius clauses, equivalent to non-compete clauses, in its lease contracts if these extend beyond a 50 km air radius and a term of five years (VR Franconia)
German Competition Authority (Bonn)
Bundeskartellamt prohibits non-compete clauses imposed on tenants in factory outlet center* The Bundeskartellamt has prohibited the operator of Wertheim Village Factory Outlet Center, VR Franconia GmbH, from using so-called radius clauses in its lease contracts with brand product manufacturers (...)

The EU General Court holds that a duty to procure specific documents might be imposed on the Commission at the request of an undertaking which is the subject to an antitrust investigation under certain circumstances (Intel)
Mircea & Partners (Bucharest)
Access to documents not to be found in the Commission’s possession I. Background The Intel Cases have occupied the international arena of antitrust litigation for the past ten years and a definitive resolution has not been reached yet. The administrative proceeding initiated by the Commission (...)

Mergers

The Czech Supreme Administrative Court cancels the decision of the Regional Court which has refused a producer of lignite access to the file of a competitor in a merger control case (Litvínovská Uhelná)
Kinstellar (Prague)
Subject matter of the case On 3 August 2008, Litvínovská uhelná a.s. (“Litvínovská uhelná”), a producer of lignite and at that time a part of the Czech Coal Group (one of the major players in the Czech energy sector) filed a complaint to the Czech Office for Protection of Competition (the “Office”) (...)

The EU Court of Justice restricts access to Commission file in merger cases (Éditions Odile Jacob / Lagardère / Natexis VUP and Agrofert / PKN Orlen / Unipetrol)
Van Bael & Bellis (Brussels)
On 28 June 2012, the European Court of Justice handed down two judgments on appeals by the European Commission in cases concerning the disclosure to third parties of documents relating to proceedings under the EU Merger Regulation. The first case concerns the Commission’s refusal to (...)

State Aids

The EU Court of First Instance annuls the Commission decision rejecting a complaint concerning an alleged State aid in favor of a subsidiary of the French postal services incumbent (Sytraval)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"SYTRAVAL"* In its judgment of 28 September 1995 in case T-95/94 «SYTRAVAL« v. Commission the Court of First Instance (CFI) annulled the Commission’s decision of 31 December 1993 rejecting a complaint in respect of alleged state aid in favour of «Sécuripost«, a subsidairy of the state-owned French (...)

Procedures

The EU General Court follows Court of Justice’s EnBW judgement concerning the right to access documents collected by the European Commission (Axa)
Studio Legale Scoccini E Associati
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Studio Legale Scoccini E Associati
The Axa case On the 7th of July 2015, the Third Chamber of the General Court of the European Union, issued a judgment on the right to access documents collected by the European Commission in a proceeding applying EU competition law (Articles 101 and 102 of the Treaty on the Functioning of (...)

The Italian Council of State sheds light on the scope of parties’ right of access to confidential documents held by the Competition Authority for the purpose of their defense in civil proceedings (Esso Italiana)
Legance - Studio Legale Associato
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Legance - Studio Legale Associato
Introduction By judgment n. 1585/2015 of 25 March 2015, the Italian Council of State (Consiglio di Stato, hereinafter “CoS”), upheld the decision of the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter “ICA”) not to grant Esso Italiana S.r.l. (hereinafter (...)

The Hellenic Competition Commission issues notice on concept and treatment of confidential information
European Commission (Brussels)
*Article originally published in ECN Brief 02/2015 (click here), under the title: "HCC Issues Notice on Concept and Treatment of Confidential Information". Please note that the ECN is not the actual author of this article and that the articles published in the ECN Brief are subject to a (...)

The Hellenic Competition Commission issues a Notice on the treatment of confidential information of cases and on the submission of the non-confidential version of documents
Hellenic Competition Authority (Athens)
Commission Notice on the treatment of confidential information of cases and on the submission of the non-confidential version of documents* The Hellenic Competition Commission (HCC) has issued a Notice on the meaning and treatment of confidential information of cases falling within the ambit (...)

The UK High Court of Justice orders the disclosure of a four-years old unpublished decision of the European Commission to a confidentiality ring of claimants and defendants (Emerald Supplies)
Blackstone Chambers
High Court tests the limits of confidentiality in EC infringement decisions* The European Commission came in for some stern criticism from the High Court this week, in a case which looks set to test the boundaries of confidentiality in EC infringement decisions: see Emerald Supplies v BA (...)

The Paris Court of Appeal issues a ruling on the communication by the Competition Authority of documents gathered before victims of alleged anticompetitive practices bring private enforcement claims (DKT)
Norton Rose Fulbright (Paris)
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Norton Rose Fulbright (Paris)
In a decision dated September 24, 2014, the Paris Court of Appeal (Court of Appeal) issuing a ruling on the communication by the French Competition Authority (FCA) of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private (...)

The UK Competition Appeal Tribunal rules in favour of applicants seeking disclosure of documents from the Competition and Markets Authority case file concerning completed investigations (HCA)
Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
Introduction In a judgment published in July 2014, the Competition Appeal Tribunal (the CAT) ruled in favour of applicants seeking disclosure of documents from the Competition and Markets Authority (the CMA) case file concerning completed investigations. The judgment arose in connection with (...)

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)
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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 General Court paves the way for publishing of non-protected hardcore cartels’ related information (Reagens)
CDC Cartel Damage Claims (Brussels)
Factual Background of Judgment of the General Court, T-181/10, Reagens / Commission (hereinafter the “judgment”) By Decision C(2009) 8682 final of 11 November 2009 (Case COMP/38589 – Heat stabilisers), the Commission found that a number of undertakings, including Reagens SpA had infringed Article (...)

The EU Institutions reach compromise on EU Directive on private damage actions
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
EU Institutions Reach Compromise on EU Directive on Private Damage Actions* On March 18, 2014, representatives of the European Commission (the Commission), the European Parliament and the Council of the European Union reached a compromise in relation to key provisions of the proposed EU (...)

The Austrian Supreme Court dismisses an appeal by a company subject to a cartel investigation against an earlier decision by the Austrian Cartel Court
Van Bael & Bellis (Brussels)
In a decision recently published on 6 March 2014, the Austrian Supreme Court (Supreme Court) dismissed an appeal by a company subject to a cartel investigation against an earlier decision by the Austrian Cartel Court to allow Austria’s Federal Competition Authority (BWB) access to copies of the (...)

The EU Court of Justice conditionates the access upon proof of the utter dependence on disclosure of the documents contained by the file (EnBW)
Mircea & Partners (Bucharest)
Access to information as a procedural right of a cartel victim as recognized by EU law* The judgement in Commission v EnBW (C-365/12, 27 February 2014) has already awakened a lot of interest. The facts are very simple. EnBW, an energy-distribution company requires access to the cartel file (...)

The EU Court of Justice upholds the Commission’s refusal to give damages claimants access to its cartel case files (EnBW)
Sullivan & Cromwell (London)
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Sullivan & Cromwell (London)
The EU Transparency Regulation has been afflicted by the law of unintended consequences. It aims to provide a legal framework for the granting of public access to the EU institutions’ documents so that EU decisions “are taken as openly as possible and as closely as possible to the citizen” . (...)

The EU Court of Justice gives a clear indication that sufficiently substantiated requests for access to documents from cartel victims are a matter of public interest (EnBW)
CDC Cartel Damage Claims (Brussels)
On 9 November 2007, Energie Baden-Württemberg AG (“EnBW”) sought from the European Commission (“Commission”), on the basis of Regulation No 1049/2001 (the “Regulation”), access to all documents in the file relating to the proceeding that led to the adoption of the Gas insulated switchgear decision (...)

The German Federal Court of Justice recognizes that information which became known to lawyers in the process of acquiring new clients may be subject to the right to refuse testimony
Commeo
In its decision of 18 February 2014, the Federal Court of Justice (the “Court”) considered the right to refuse testimony to apply to any information which became known to a lawyer in the course of two telephone calls he made for the purpose of the acquisition of a new client. As a consequence, (...)

The Higher Regional Court of Hamm approves access to a criminal file containing a leniency application and the confidential version of a Commission’s fining decision to a civil court reviewing a damage claim against members of a cartel
Commeo
In its decision of 26 November 2013 , the Higher Regional Court of Hamm (“the Court”) had to decide whether a criminal investigation file including a leniency application submitted by a cartelist and parts of the confidential version of the European Commission’s fining decision could be disclosed (...)

The Paris Court of Appeal rules on the communication by the Competition Authority of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private enforcement claim (Ma liste de courses)
Dunaud Clarenc Combles & Associés
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Dechert (Paris)
In its judgment dated November 20, 2013, the Paris Court of appeal (the Court of Appeal) ruled on the communication by the French Competition Authority (the FCA) of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private (...)

The EU General Court dismisses the appeal against the decision made by the Commission to refuse access to a document in its investigation of the merger between two leading stock exchanges (Beninca)
FratiniVergano
I. Facts On 3 April 2012, based on the Regulation No 1049/ 2001 (hereafter "the Regulation"), Mr Jürgen Beninca (hereafter “the applicant”) called the European Commission to grant him access to a memorandum of the Head of the unit responsible for competition matters of the Directorate-General (...)

The English Court of Appeal requires French defendants to comply with disclosure orders despite the French "blocking statute" (Secretary of State for Health / Servier Laboratories)
White & Case (London)
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JPTT & Partners
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White & Case (London)
The existence in several countries of “blocking statutes”, which prohibit the provision of economic information to foreign authorities or courts (or require prior authorization to be obtained before doing so), present a challenge to those managing international litigation and (...)

The UK Competition Appeal Tribunal rules on the balance between protecting confidentiality and assuring procedural fairness (BMI Healthcare)
UK Competition and Markets Authority (CMA) (London)
The UK Competition Commission, in its final months before being absorbed into the new Competition and Markets Authority, has had a procedural decision overruled by the Competition Appeal Tribunal (Britain’s specialist judicial body that oversees decisions by the competition authorities). In the (...)

The UK CAT rules on the matter of confidentiality and procedural fairness, deciding that a data room procedure was so restrictive as to be unfair (BMI Healthcare)
Blackstone Chambers
Cats, bags, rings and rooms: the problem of confidentiality* Dealing with confidential information in competition cases can be tricky. The CAT’s recent judgment in BMI Healthcare and others v Competition Commission [2013] CAT 241 provides some help. The core problem of confidentiality in the (...)

The UK CAT rules that use of data rooms is lawful in market investigations, but criticises restrictive access conditions (BMI Healthcare I)
St John’s Chambers
Competition Appeal Tribunal rules that use of data rooms is lawful in market investigations, but criticises restrictive access conditions* In competition investigations, competition authorities receive substantial amounts of confidential business information, some of which will be commercially (...)

The Brussels Court of Appeal asks the Supreme Court to rule on scope of review in competition cases (Base Company, Belgacom, Mobistar)
Van Bael & Bellis
In a judgment of 28 June 2013, the Brussels Court of Appeal requested a preliminary ruling from the Supreme Court to clarify the notion of “full jurisdictional power” (volle rechtsmacht/pouvoir de pleine jurisdiction). This concept defines the scope of review of the Courts of Appeal in many (...)

The Czech Supreme Administrative Court renders two rulings dealing with access of complainants to files in competition proceedings (Asiana v Student Agency and Litvinovska uhelna cases)
Weil, Gotshal & Manges (Prague)
Just few days apart in March 2013 (on 20 March and 28 March 2013), the Supreme Administrative Court rendered two rulings which deal with access of complainants to files regarding competition proceedings to which they were not direct participants. In the first case, the Supreme Administrative (...)

The Maltese Competition and Consumer Appeals Tribunal upholds NCA’s request not to exhibit documents obtained in the course of its investigations which were not used for rejecting the complaint (The Hon. Joe Mizzi)
In terms of Article 13A of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ’MCA’), the Director of the Office for Fair Trading (hereinafter referred to as ’Director’) applied to the Competition and Consumer Affairs Tribunal (hereinafter referred to as ’Tribunal’), (...)

The Maltese Competition and Consumer Appeal Tribunal rules on access to file by complainant (Hon. Mizzi)
European Commission (Brussels)
Malta: The Competition and Consumer Appeal Tribunal rules on Access to File by Complainant* On 27 February 2013, in Hon. Mizzi vs Office for Competition, the Competition and Consumer Appeal Tribunal (the Tribunal) reached a decision in parte clarifying the extent to which information (...)

The Spanish National Court annuls the CNC decision to incorporate evidence gathered at the inspection to the case file of a new investigation powers of investigation (Montesa Honda)
Cuatrecasas, Goncalves Pereira (Madrid)
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Cuatrecasas, Goncalves Pereira (Barcelone)
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Cuatrecasas, Goncalves Pereira (Barcelone)
On December 4, 2012, the Spanish National Court (Audiencia Nacional) annulled the decision of the Spanish competition authority (formerly called Comisión Nacional de la Competencia or “CNC”, now called Comisión Nacional de los Mercados y de la Competencia or “CNMC”) to incorporate evidence gathered (...)

The UK Competition Appeal Tribunal clarifies scope of litigation privilege in Office of Fair Trading investigations (Tesco)
Morgan Lewis (London)
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Jones Day (London)
The UK Competition Appeal Tribunal ("CAT") has ruled that litigation privilege attaches to documents of parties being investigated, even when created before the Office of Fair Trading ("OFT") takes a formal infringement decision. The CAT confirmed that, once the OFT has issued a Statement of (...)

The EU General Court grants access by a private antitrust plaintiff to the Commission’s files in cartel proceedings (CDC Hydrogene Peroxide)
Jones Day (Dusseldorf)
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Jones Day
The General Court of the European Union (General Court) has annulled a decision by the EU Commission (EC) that denied access by a private plaintiff to the EC’s files in cartel proceedings (Case T 437/08 – CDC Hydrogene Peroxide vs European Commission). The plaintiff requested access to those (...)

The European Court of Justice annuls fines imposed on Belgian chemicals company for anticompetitive conduct due to a breach of essential procedural requirements (Solvay)
University of Berkeley
European Court of Justice annuls antitrust fines due to a breach of essential procedural requirements* On October 25th, 2011 the European Court of Justice annulled antitrust fines that were imposed on the company Solvay by the European Commission in the year 2000 (and approved by European (...)

The European Court of Justice annuls a General Court judgment concerning access to documents (Sweden v MyTravel and Commission)
Van Bael & Bellis (Brussels)
In a judgment of 21 July 2011, the European Court of Justice annulled a judgment of the General Court, which upheld a decision by the European Commission refusing access to certain documents in the Airtours/First Choicecase file. In 1999, Airtours launched a bid to acquire First Choice, a (...)

The EU Competition Commissioner Almunia proposes changes to the Commission’s procedural practice in antitrust investigations
Van Bael & Bellis (Brussels)
On 30 May 2011, Competition Commissioner Joaquín Almunia announced a number of modifications he intends to introduce to the procedural rules governing antitrust proceedings before the Commission. The contemplated modifications concern DG Competition’s procedural Best Practices and the revision of (...)

The EU General Court dismisses a leading low cost airline’s action for annulment of decisions rejecting access to documents (Ryanair)
Van Bael & Bellis (Brussels)
On 10 December 2010, the General Court rejected a series of claims for annulment brought by Ryanair against implied decisions of the Commission refusing access to documents relating to State aids allegedly granted to Ryanair by several airports. Ryanair sought mainly access to the complaints (...)

The European Ombudsman clears Commission’s refusal to grant access to preliminary assessment in a commitment case (E.ON)
Van Bael & Bellis (Brussels)
On 7 May 2008, the Commission adopted a preliminary assessment within the meaning of Article 9 of Regulation 1/2003 concerning alleged abusive practices by E.ON and its subsidiaries on the German electricity wholesale and balancing markets. On 27 May 2008, E.ON submitted commitments with a view (...)

The European Court of First Instance largely dismisses an appeal against refusal by the Commission to disclose documents (MyTravel)
Van Bael & Bellis (Brussels)
On 9 September 2008, the Court of First Instance (CFI) rendered a second judgment regarding MyTravel (formerly Airtours) in which it largely dismissed MyTravel‘s appeal against the Commission’s refusal to disclose internal documents relating to the Airtours/First Choicemerger. The CFI only (...)

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