ECHR

Anticompetitive practices

EU accession to the ECHR: Bringing about an aggiornamento for EU case law? Overview of ECHR and EU case law
Jones Day (Brussels)
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Amazon (Paris)
Would it be unfair to depict the relationship between the European Convention on Human Rights (ECHR) and the EU Treaties and the relationship between the Luxembourg Court and its Strasbourg counterpart with the well-known formula : “je t’aime, moi non plus”? Things are not so clear. At the heart (...)

The EU Court of Justice dismisses the appeal against a judgment of the General Court upholding cartel facilitator liability (AC-Treuhand)
Altius (Brussels)
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Liège University - IEJE
I. The Parties AC Treuhand AG, the applicant, is a consultancy firm which is based in Zurich (Switzerland) and provides a range of international focused services, like business management and administration, assessment of market data, presentation of market statistics, etc. The European (...)

The EU Court of Justice holds that the liability of a cartel facilitator was foreseeable (AC-Treuhand)
University of Groningen
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University of Groningen
The shortest competition judgment ever: AC-Treuhand II* Competition law judgments are notorious for their length. An extreme example is the 5134 paragraph judgment in Cement. In most cases the appeal judgment is significantly shorter, as with the 391 paragraphs in the appeal in Cement. (...)

The EU Court of Justice upholds cartel facilitator liability (AC-Treuhand)
Simmons & Simmons (London)
In brief AC-Treuhand has failed in its attempt to have two fines overturned for facilitating the heat stabilisers cartel. The case confirms that servicing a cartel by organising and participating in meetings, collecting and supplying to producers data on relevant markets and offering to (...)

The EU Court of Justice upholds cartel facilitator liability (AC-Treuhand)
Norton Rose Fulbright (Brussels)
Introduction On October 22, 2015, the European Court of Justice (the ECJ) published a landmark decision upholding the Commission’s imposition of fines on a consultancy, AC-Treuhand AG (AC-Treuhand), for participation in two cartels between 1993 and 2000. AC-Treuhand argued that, as a (...)

The EU Court of Justice rules on the matter of joint and several liability in relation to the fines imposed on the GIS cartel (Siemens)
EFTA Surveillance Authority
Case C-231/11 P and C-233/11 P European Commission v Siemens AG Österreich a.o. – Joint and several liability* The Court of Justice (“CoJ”) gave on 10 April 2014 its judgment on appeal in the gas insulated switchgear case C-231/11 P. The dispute concerns a cartel relating to the sale of gas (...)

The EU Court of Justice reduces the fines imposed on the appellant for failure of the General Court to take sufficient account of a substantive problem with the Commission’s decision relating to the company’s rights of the defence (Ballast Nedam)
EFTA Surveillance Authority
Case C-612/12 P Ballast Nedam NV: Competition law, rights of the defence and reduction of fine.* The Court of Justice does not often reduce a fine imposed by the Commission on an undertaking for a breach of the competition rules when the amount of the fine has been upheld by the General Court. (...)

The EU Court of Justice rules on the matter of appropriate remedy for infringements of the right to have the case adjudicated within a reasonable time (Kendrion, Gascogne)
University of Leiden
The recent landmark cases on the reasonable time requirement: Is the Court caught between Scylla and Charybdis?* In the landmark cases Kendrion, Gascogne and Gascogne Germany the CJEU clarified some important procedural issues related to infringements of the reasonable time requirement. The (...)

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 (...)

The EU Court of Justice rules that the principle of effective judicial protection does not preclude the Commission from bringing on behalf of the European Union an action for damages before a national court (Europese Gemeenschap/Otis)
Vrije University of Amsterdam
The Commission’s double role in competition law enforcement: the Otis case* On November 6th, the Grand Chamber of the CJEU issued a ruling in Case C-199/11 (Europese Gemeenschap v Otis NV and Others). The case concerns the principle of effective judicial protection (laid down in Article 47 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 ECJ Advocate General Kokott renders her opinion in the Czech gas insulated switchgear case holding that the principle ne bis in idem does not preclude NCAs from prosecuting the same cartel with respect to different territories or periods (Toshiba)
Université Catholique de Louvain
AG Kokott’s Opinion in Toshiba: framing the application of the ne bis in idem principle in EU competition law enforcement* One of the main concerns raised by the decentralization of EU competition law enforcement related to the risk of different competition authorities prosecuting and (...)

The EU General Court reduces fines imposed to a cartelist and its subsidiaries in the methacrylates sector (Arkema France)
Jones Day (Paris)
Unlimited jurisdiction: the end of a misnomer?* The past decade has seen a flurry of articles published trying to make sense of the degree of control that the EU Courts exercise on complex economic reasoning. By contrast, much less has been written about the Courts’ unlimited jurisdiction on (...)

The UK Competition Appeal Tribunal cuts fines imposed in the construction industry and overturns aspects of the OFT’s findings on liability
Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)
Summary In a series of nine judgments dated between 11 March and 27 April 2011 (the "CAT Judgments"), the UK’s Competition Appeal Tribunal ("CAT" or the "Tribunal") dramatically reduced the fines imposed by the Office of Fair Trading (the "OFT") on 25 companies (the "Appellants") in the (...)

The ECJ Advocate General Sharpston voices opinion on the standard of judicial review over fines in cartel cases (KME)
General Court of the European Union
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White & Case (London)
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White & Case (Brussels)
This article is the winner of the business category, anticompetitive practices section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In an Opinion delivered on 10 February 2011, Advocate General (‘AG’) Sharpston of the European Court of (...)

The Dutch Trade and Industry Appeal Tribunal grants a 10% fine reduction for its own delay in dealing with the appeal in construction bid rigging case
Simmons & Simmons (Amsterdam)
On 14 June 2004, the Dutch competition authority (the NMa) imposed fines on 12 roofing companies for infringing article 6 of the Dutch Competition Act, the equivalent of article 101 of the Treaty on the Functioning of the European Union, which prohibits anti competitive agreements. The NMa (...)

The Belgian Competition Council assesses the validity of opening days/hours and advertising provisions for pharmacy outlets as set by the pharmacists professional associations (Belgian Pharmacists Associations)
Liège University - IEJE
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Liege Competition and Innovation Institute
1. Parties The present case arose from three complaints lodged in 1998 by several retail pharmacy outlets before the Belgian Competition Council (“the Council”). The complaints were directed against the Belgian Pharmacists Association as well as various local pharmacists association (...)

The Belgian Competition Council holds unlawful minimum tariffs imposed to members of a professional association on both national and EU provisions but without imposing any fine (Veterinaries Association)
Liège University - IEJE
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CÎME
The Veterinarians’ Association (“VA”) is a professional order which represents all the veterinarians established in Belgium. Its primary task is to establish a code of conduct (“the code of conduct”) which regulates various aspects of the veterinarian profession in Belgium. It also holds (...)

The Luxembourg Competition Council imposes fines for the first time during an investigation in a cartel case ("House of justice" case)
MOYSE BLESER law firm
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Herbert Smith Freehills
I. Introduction In the course of a cartel investigation carried out by the Competition Inspectorate (Inspection de la concurrence) (the “Inspectorate”), the addressee of the decision refused to submit accurate information to the Inspectorate, which, in reaction, adopted a formal request by way (...)

A Dutch Court quashes the decision of the national competition authority in the mobile operators case for unsufficient motivation (KPN Mobile, Orange, T-Mobile, Vodafone Libertel)
Covington & Burling (Brussels)
The District Court of Rotterdam judged in favour of the “mobile operators” in their case against the Dutch Competition Authority (the NMa). The NMa’s case alleging cartel activities was ruled to be insufficiently founded and therefore annulled. On July 13th, the District Court of Rotterdam handed (...)

Dominance

The EU Court of Justice reiterates that effective judicial protection is a general principle of EU law and finds no error in the examination of the evidence related to abuse of dominance in the telecom sector (Telefónica)
EFTA Surveillance Authority
Case C-295 P Telefónica SA v Commission: the EU judicature’s unlimited jurisdiction in competition cases* The Court of Justice (“CoJ”) handed down its judgment in a very interesting abuse of dominance case, namely Case C-295/12 P Telefónica SA v Commission on 10 July 2014. The judgment deals with (...)

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 (...)

The EU General Court upholds the Commission decision in consideration of two exclusionary practices on the market for supply of CPUs, opening the door to a further appeal to the CJEU and to a possible application before the ECtHR (Intel)
European Procurement Law Group
Could Intel challenge its 1bn Euro fine on grounds of ’corporate human rights’* After last week’s General Court Judgment in Intel v Commission, T-286/09, EU:T:2014:475, the 2 month period for Intel to appeal the confirmation of its 1bn Euro fine before the Court of Justice of the EU on points of (...)

The Swiss ComCo closes proceedings without further action against a Swiss individual with a formerly controlling stake in companies investigated for a possible abuse of a dominant position
University of St. Gallen
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Lenz & Staehelin (Zurich)
Swiss Competition Commission rejects liability of a natural person with a controlling shareholding in companies under cartel investigation* On November 18, 2013, the Swiss Competition Commission (ComCo) closed proceedings without further action against a Swiss individual with a formerly (...)

The EFTA Court upholds EFTA Surveillance Authority’s decision on an abuse of dominant position in the postal sector (Posten Norge)
European Commission
ESA: The EFTA Court upholds EFTA Surveillance Authority Decision finding Abuse of Dominance by Norway Post* On 18 April 2012, the EFTA Court (the Court) upheld a decision of the EFTA Surveillance Authority (the Authority) of 14 July 2010 finding that Posten Norge AS (Norway Post) abused its (...)

The EFTA Court sanctions for abuse of dominant position a company active in the market for business-to consumer parcel services with over-the-counter delivery addressing the issue of judicial review (Posten Norge)
Jones Day (Paris)
A lesson on judicial review from the other European Court in Luxembourg* Legal change sometimes takes unpredictable paths: mid-April, something important happened for European law in Luxembourg, but this did not come from the European Court of Justice (the “ECJ”). Not every reader of this blog (...)

The Swiss Federal Administrative Court revokes CHF 333 M fine against leading telecommunications provider’s subsidiary (Swisscom Mobile)
Agon Partners (Zurich)
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Swatch
I. Summary The Swiss Federal Administrative Court overruled a judgment rendered by the Swiss Competition Commission imposing a fine of CHF 333 M on Swisscom Mobile for abusing its dominant position by improperly enforcing inflated prices for mobile termination. II. Case 1. Parties Swisscom (...)

Procedures

Cooperation among national authorities in the European Competition Network
Kramer Levin Naftalis & Frankel (Paris)
1.The adoption of Regulation (EC) n° 1/2003 has undoubtedly encouraged the National Competition Authorities ("NCA") to be more eager in their application of Community law. This eagerness has been fuelled by a number of factors. Article 3§1 of Regulation n° 1/2003 requires that the NCAs apply (...)

The European Court of Human Rights rules that French dawn raids breached fundamental rights (Vinci / GTM)
JPTT & Partners
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White & Case (Brussels)
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White & Case (London)
The European Court of Human Rights (the “ECtHR”) has ruled in the Vinci case that the circumstances surrounding the electronic removal of documents and computer files during a dawn raid violated two companies’ privacy rights enshrined in the European Convention on Human Rights (“ECHR”) . The case (...)

The European Court of Human Rights rules that dawn raids carried out at the premises of two companies by the French Department for Competition, Consumer Protection and Fraud violates both the rights of defense and the right to privacy (Vinci / GTM)
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Paris)
The European Court of Human Rights (ECtHR) recently ruled that dawn raids carried out at the premises of two French construction companies by the DGCCRF (French Department for Competition, Consumer Protection and Fraud) violated both the rights of defense and the right to privacy, due to (...)

The Czech Antitrust Office announces that it will recommence dawn raids
BPV Braun Partners
The Prohibition on Dawn Raids in the Czech Republic has Ended* Last autumn, the Czech Antitrust Office had announced that it halted its dawn raids. The decision came from – what many felt – was a surprise decision of the European Court of Human Rights in Strasbourg (ECHR) dated 2 October 2014 (...)

The Italian Supreme Court confirms that Administrative Courts cannot themselves rule on technical concepts within the competence of the Competition Authority (Acea / Suez Environment)
Simmons & Simmons (Milano)
On 20 January 2014 the Italian Supreme Court handed down a significant judgment on the scope of the judicial review of decisions taken by the Italian Competition Authority (ICA), considering issues addressed in the ECHR judgment in Menarini Diagnostic s.r.l./Italia, 27 September, 2011, appeal (...)

The Canadian Superior Court allows the enforcement of the letters rogatory issued by a US District Court to obtain evidence as regards an allegation of price-fixing of foam (Neuwirth / DeCosta)
Affleck Greene McMurtry
Criminal Investigations and Cross Border Litigation Not A Bar to US Depositions* The Superior Court of Ontario recently granted an application for the enforcement of letters rogatory to take evidence of, and compel the production of documents by, two non- party Ontario residents in a (...)

The Stockholm City Court rules that the prohibition against double jeopardy does not bar subsequent administrative proceedings in a case of abuse of dominance where previous civil proceedings led to an injunction order under penalty of a fine (Swedavia)
Mircea & Partners (Bucharest)
Admissibility of an action for imposing a competition fine brought after the Market Court ordered injunction under penalty of a fine in related civil proceedings. Exploitative abuse of dominance. Ne bis in idem Background Swedavia is a state-owned company in charge with the administration of (...)

The EU Court of Justice consolidates view on effective remedy for excessive length of proceedings before the General Court in competition cases (Groupe Gascogne)
Clifford Chance (Athènes)
In the Groupe Gascogne judgment delivered on 26 November 2013, the Court of Justice consolidates its conception on issues of effective judicial protection in competition law adjudication. The case originated in an action for annulment against the General Court (GC) judgment T-72/06 Groupe (...)

The EU Court of Justice rules on the procedural and substantial provisions applicable to an antitrust claim and establishes that court proceedings of an excessive duration were in violation of Article 47 of the Charter of Fundamental Rights of the EU (Groupe Gascogne)
European Procurement Law Group
It’s for the GC to decide, but it’s not ok: CJEU rules on ’excessive duration’ of competition law litigation (C-40/12 P)* In a batch of impatiently expected Judgments of 26 November 2012, the CJEU has ruled on the procedural and substantial rules applicable to a claim that (competition law) (...)

The EU General Court fully confirms the legality of the Commission’s inspection decisions under the Regulation No 1/2003 and dismisses the appeals on all grounds (Deutsche Bahn)
FratiniVergano
I. Facts Deutsche Bahn AG (hereafter “the rail company” and "the applicant") is an international company operating in the field of national and international transport of goods and passengers as well as logistics and services in the rail sector. DB Mobility Logistics AG, DB Energie GmbH, DB (...)

The Romanian Supreme Court rejects an appeal on points of law relying on claims of non-compliance with the right to inviolability of domicile brought against an order for unannounced inspections conducted under the Article 101 TFEU (BRD-Group Société Générale)
Mircea & Partners (Bucharest)
The irremediable impairment of the rights of defence may arise from the disregard of the right to the inviolability of domicile Introduction ...whilst it is true that the rights of the defence must be observed in administrative procedures which may lead to the imposition of penalties, it is (...)

The Brussels Court of Appeal holds that communications between a company and its in-house counsel are entitled to the protection of the attorney-client privilege under Belgian law, and therefore are not subject to production to the Belgian Competition Authority (Belgacom)
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Axinn Veltrop & Harkrider (New York)
The Brussels Court of Appeal held that communications between a company (Belgacom Group) and its in-house counsel were entitled to the protection of the attorney-client privilege under Belgian law, and therefore were not subject to production to the Belgian Competition Authority (“BCA”), which (...)

The EU Court of Justice entirely rejects an appeal by German energy company for failing to substantiate the unduly reversed burden of proof and the allegedly incorrect assessment of the fines imposed for breaching a seal during a EU dawn raid (E.ON)
Mircea & Partners (Bucharest)
I. Introduction Breaching of a seal constitutes a serious violation of the Commission’s investigative powers in the competition field for which fines not exceeding 1 % of the undertaking’s turnover may be imposed. On 15 April 2008, E.ON Energie brought an action for annulment against a (...)

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)
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McDermott Will & Emery (Paris)
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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 (...)

A Czech court confirms that phone recordings may be lawfully used as evidence in antitrust proceedings (Husky)
Diwok Hermann Petsche (Baker McKenzie Vienna)
Introduction In April 2012 the Regional Court in Brno confirmed the decision of the Czech Office for Protection of Economic Competition (“Czech Competition Authority”) fining HUSKY CZ for resale price maintenance. Based on the findings of the Czech Competition Authority, HUSKY CZ set the maximum (...)

The Hungarian Supreme Court upholds second instance judgment in the Budapest road construction cartel case and rules on the admissibility of evidence and the applicability of the ECHR to cartel proceedings (Betonút)
lakatos, koves and partners
On 6 February 2012 the Hungarian Supreme Court adopted a judgment in which the decision of the Hungarian Competition Office (“HCO”) and the earlier judgments of the Metropolitan Court and the Metropolitan Court of Appeal in a cartel matter relating to road construction works in Budapest were (...)

The European Court of Human Rights holds that the powers granted to the French Minister of economy under art. L. 442-6-III of the commercial code do not violate art. 6 of the ECHR (GALEC)
GIE Jurigroup - Cabinet Jean-Paul Montenot
The law NER (New Economic Regulations) adopted on May 15th, 2001, aimed at reinforcing the sanctions against abusive practices and facilitating damages actions, also fixed new rules of the game of the commercial negotiation. In particular, the provisions of Article L. 442-6-III of the French (...)

The French criminal Supreme Court puts an end to its preferential treatment having regard to the search for evidence of anticompetitive practices (Groupe Amaury)
University College London
Historically, in France, the press industry benefited from a preferential treatment. Due to the specific nature of its activity and the importance of the freedom of the press, the undertakings operating in the press industry were not subject to the same rules as the other undertakings. In (...)

The French Civil Supreme Court confirms that the same panel of judges cannot assess both the lawfulness of court orders authorizing the search of premises and seizure of documents and the legitimacy of the French Competition Authority decision, without infringing the right to a fair trial under art. 6 of the ECHR (Colas Rail)
University College London
On November 2, 2011, the French Court of Cassation found that the Court of Appeal of Paris committed an error of law and infringed Article 6 of the European Convention of Human Rights (ECHR). One more time, the transitory provisions adopted by the French legislator to respect the European Court (...)

The Paris Court of Appeal rejects an appeal lodged against the conditions of search and seizure operations conducted by the Competition Authority at the premises of a leading international group in the transport and delivery service sector (TNT Express)
White & Case (Paris)
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French Competition Authority
On October 4, 2011, the delegate of the first President of the Paris Court of Appeal issued three orders relating to competition search and seizure operations conducted by the French National Competition Authority (the «NCA«) at the premises of TNT Express and TNT Express France («TNT«), SARL (...)

The European Court of Human Rights confirms that the Italian antitrust fining regime is compatible with human rights (Menarini)
Simmons & Simmons (Milano)
On 27 September 2011 the European Court of Human Rights (ECHR or the Court) ruled the Italian system of antitrust sanctions to be compliant with the law of fundamental rights. Specifically, the ECHR deemed the Italian system, consisting of a decision by the Italian Competition Authority (ICA) (...)

The Belgium Supreme Court rules on the exact scope of the "full jurisdiction" of the Brussels Court of Appeal in competition cases (Honda)
Sheppard Mullin (Brussels)
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Ideal Standard
1. Background Complaints and decision of the Belgian Competition Council Further to complaints lodged by twelve independent distributors of motorcycles before the Belgian Competition Council, five official importers of motorcycles (Honda, Suzuki, Ducati, Yamaha and Kawasaki) were condemned (...)

ECJ Advocate General Sharpston voices opinion on the standard of judicial review over fines in cartel cases (KME)
European Commission - DG COMP (Brussels)
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General Court of the European Union
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White & Case (Brussels)
This article is the winner of the business category, anticompetitive practices section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In an Opinion delivered on 10 February 2011, Advocate General (‘AG’) Sharpston of the European Court of (...)

The ECJ Advocate General Sharpston addresses the scope of the EU Courts’ jurisdiction over antitrust cases and fines (KME Germany)
Université Catholique de Louvain
AG Sharpston’s Opinion in KME: a new step toward full appellate jurisdiction in antitrust cases (imposing fines)?* On February 10, Advocate General (AG) Sharpston issued her Opinion in the KME case (C-272/09 P – here), an appeal brought before the European Court of Justice (ECJ) against a (...)

The French Supreme Court rejects the admissibility of recordings of telephone communications, obtained without the knowledge of the participants, as evidence before the Competition Authority in a consumer electronics case, applying Art. 9 C. civ. proc., Art. 6.1 ECHR and the principle of fairness of evidence (Avantage / Sony / Philips)
White & Case (Paris)
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Novartis (Rueil-Malmaison)
BACKGROUND In 2005, the French Competition Authority – (hereafter the “FCA”, previously the Competition Council) fined Panasonic, Sony France and Philips France for anticompetitive vertical agreements – retail price fixing – in the distribution of consumer electronics (decision No. 05-D-66 of 5 (...)

The European Court of Human Rights rules against the French search and seizure procedure prior to the 2008 reform, including the transitional system (Canal +, Primagaz)
Vogel & Vogel
In two important judgments, the European Court of Human Rights has partially invalidated the search and seizures procedure implemented under Article L. 450-4 of the French Commercial Code. In both cases the companies Canal Plus (Groupe Canal Plus and Sport Plus) and Primagaz challenged the (...)

The French Court of Cassation quashes a ruling of the Paris Court of Appeal which had exceptionally annulled an NCA decision for excessive duration of the investigation procedure (Luxury perfumes)
Vogel & Vogel
A new development has arisen in the luxury perfumes case. The Paris Court of Appeal, ruling on a referral back to it from the Court of Cassation, had exceptionally annulled a Competition Council (now Competition Authority) decision for excessive duration of the investigation procedure . This (...)

The Luxembourg Government proposes the merger of the competition authorities which raises questions on compliance with Art. 6 ECHR
NautaDutilh (Luxembourg)
In 2007 the Minister of Economy filed on behalf of the Luxemburg government a law proposal to the Luxembourg Parliament (Chambre des députés) to amend the 2004 Competition Act (Loi du 17 mai 2004 relative à la concurrence). The proposal in essence aims to integrate the Competition (...)

The EU Competition Commissioner speaks on due process and competition enforcement underlining the importance of judicial review by European Courts
Université Catholique de Louvain
The scope of judicial review in question* In a speech delivered on 17 September 2010 at the IBA annual competition conference, Commissioner Almunia engaged the audience on the sensitive topic of due process and competition enforcement. Among the reasons justifying his overall satisfaction with (...)

The Czech Constitutional Court rules that inspection at business premises of a company does not require a prior judicial authorization (Delta Pekarny)
Havel, Holasek & Partners (Prague)
Introduction On 26 August 2010 the Czech Constitutional Court rendered a judgment whereby it rejected as manifestly ill-founded a constitutional appeal of business company Delta Pekarny (one of the largest companies on the bakery market in the Czech Republic) against the judgment of the (...)

The Dutch Competition Authority adopts a new procedure in relation to the inspection and copying of analog and digital data and documents
European Commission
The Netherlands: Competition Authority (NMa) adopts a new Procedure in relation to the Inspection and Copying of Analog and Digital Data and Documents On 17 August 2010, a revised version of the NMa Procedure in relation to the Inspection and Copying of Analog and Digital Data and Documents (...)

The Paris Court of Appeals defines and applies a demanding standard of proof for justification of dawn raids targeting press groups (Amaury)
Jones Day (Paris)
Dawn raids vs. the freedom of the press* Paris Court of Appeals, Order of 17 June 2010, Amaury and Others Relying on what seems to be unprecedented reasoning, the President of the Paris Court of Appeals has quashed a judicial order authorizing a dawn raid against several companies belonging (...)

The Austrian Supreme Court holds that it is solely up to the Federal Competition Authority to decide on the leniency status of undertakings suspected of collusive practices pursuant to Art 101 TFEU (Printchemicals)
Salzburg University
I. Background Upon application of the Austrian Federal Competition Authority (BWB) the Cartel Court (OLG Vienna as KG) sentenced 7 undertakings to fines of between € 66,000 and € 675,000 for their participation in collusive practices in violation of Art 101 TFEU. The first three undertakings (...)

The Paris Court of Appeal overturns a decision of the NCA for excessive duration of the proceedings for the first time ("Perfumes" case)
Hewlett Packard (Boulogne-Billancourt)
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Christian Louboutin
In a ruling dated 10 November 2009, the Paris Court of Appeal overturned a decision of the national competition authority (the "Authority") for excessive duration of the proceedings for the first time. This decision of the Authority related to alleged anticompetitive practices by several (...)

The Paris Court of Appeal holds that, in compliance with the adversarial principle, the parties to the commitments procedure shall have access to all documents on the basis of which the case handler had drafted its preliminary assessment (Canal 9 / Les Indépendants)
Norton Rose Fulbright (Paris)
Following the quashing of its first decision , the Paris Court of Appeal held, in the present decision , that in compliance with the adversarial principle, the parties to the commitments procedure shall have access to all documents on the basis of which the French Rapporteur (the “case handler”) (...)

The Paris Court of Appeal opposes to the Supreme Court on admissibility of evidence obtained without the knowledge of the companies under investigation (Avantage / Sony / Philips)
Université Catholique de Lille
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Potamitisvekris
On 29 April 2009, the Paris Court of Appeal dismissed for the second time the appeal of Philips and Sony against a decision of the Competition Council in 2005 condemning an agreement between the two companies and their respective distributors. In so doing, the Court of Appeal expressed its (...)

The Czech Supreme Administrative Court rules that the NCA was entitled to sanction a cartel activity a part of which had already been sanctioned by the European Commission (Toshiba)
Havel, Holasek & Partners (Prague)
I. Introduction On 10 April 2009, the Supreme Administrative Court of the Czech Republic (the «SAC») overturned a judgment of the Regional Court in Brno of 25 June 2008 that had annulled a decision of the Chairman of the Office for Protection of Competition (the «Office») of 26 April 2007 whereby (...)

The Dutch Trade and Industry Appeals Tribunal holds that Art. 6 ECHR implies a foreign language defendant has the right to translations of all documents necessary to prepare its defence in a Dutch antitrust procedure (North Sea Shrimps II)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Freshfields Bruckhaus Deringer (Amsterdam)
Background On 19 January 2009, the Dutch Trade and Industry Appeals Tribunal (the "CBb") ruled on two joint cases in which both a number of producer organisations and the Netherlands Competition Authority (the "NMa") had appealed decisions of the District Court Rotterdam (Rechtbank Rotterdam). (...)

The French Supreme Court rules that parties to a commitments procedure must have access to all documents on which the case-handler has relied and to all documents submitted to the Competition Council (Canal 9/Les Indépendants)
Vogel & Vogel
The highest commercial court in France has for the first time addressed the question of procedural safeguards for undertakings concerned during the commitments procedure laid down in article L. 464-2, I of the Commercial Code. The aim of the procedure is “to ensure that the undertaking ceases or (...)

The Czech Supreme Administrative Court rules that a concurrent application of EC law and national law by the NCA to one anticompetitive conduct does not violate the ne bis in idem principle (RWE Transgas)
Havel, Holasek & Partners (Prague)
I. Introduction On 31 October 2008 the Supreme Administrative Court of the Czech Republic quashed a judgment of the Regional Court in Brno of 22 October 2007 which had annulled a decision of the NCA whereby a fine of CZK 240 mil. (approx. EUR 8,5 mil.) had been imposed on RWE Transgas for an (...)

The Dutch Trade and Industry Appeals Tribunal confirms that a fair and public hearing within a reasonable time according to Art. 6 ECHR can be interpreted as meaning a period of up to two years or longer in an antitrust procedure (Aesculaap)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Freshfields Bruckhaus Deringer (Amsterdam)
Introduction The Aesculaap case concerns an infringement of Article 6 of the Dutch Competition Act ("Mw") on the grounds that AUV - the procurement collective and wholesaler of veterinary pharmaceuticals -, and Aesculaap - the only other wholesaler of veterinary pharmaceuticals - had adopted a (...)

The French Commercial Supreme Court rules that the NCA may not rely on unfairly obtained recordings as evidence (Sony France and Philips France)
Vogel & Vogel
A small consumer electronics discount retailer brought an action before the Competition Council against some of its suppliers for vertical agreements made with their respective distributors. In support of the action, the retailer produced tapes containing the recordings of phone conversations (...)

The French Supreme Court acknowledges the boundaries of the transmission of information between criminal courts and the national competition authority (Colas Ile-de-France Normandie)
WTG Events
I - Background Article L. 463-5 of the Commercial Code creates the possibility for the Competition Council to request documents closely linked to the facts referred to it and belonging to another national authority. The decision under examination is the last in this case and upholds the (...)

The Irish High Court gives some indications as to the extent to which the judiciary may intervene in the NCA’s investigations (Competition Authority v. District Judge O’Donnell)
London School of Economics
High Court grants certiorari and quashes decision taken against the Competition Authority regarding the Authority’s conduct in an on-going cartel investigation Background It follows from Article 45(2) and (3) of the Irish Competition Act 2002 (the Act) that the Competition Authority (the NCA) (...)

The French Supreme Court holds that a letter requesting to attend hearings interrupts the prescription period and restrictively applies Art. 6.1 and 7.1 ECHR (Strasbourg European Parliament)
Canal + Overseas
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University Paris II Panthéon‑Assas
Background In its decision dated 21 September 2005, the French Competition Council sanctioned, on the basis of Article L. 420-1 of the French Commercial Code (FCC), the provision mirroring Art. 81 EC, eight companies (Cilia, Somoclest, CCB Dufaylite, DBS, Sort et Chasle, Soe Stuc et Saff, (...)

A French Court of Appeal declares inadmissible an action for nullity carried out by the French Minister for Economic Affairs on the basis of Art. 6.1 ECHR in the framework of its right to act on behalf of victims of restrictive practices (Galec)
Japan Tobacco International (Boulogne-Billancourt)
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Linklaters (Brussels)
In September 2001, after comparing its conditions of purchase for fresh products with those granted to Carrefour by several suppliers, Galec noticed that the sums it received in relation to commercial cooperation services were below those of Carrefour. Galec thus claimed it had been (...)

A UK Court of Appeal holds that, when the Competition Appeal Tribunal set aside a decision of the OFT or sectoral regulators, and ordered a reinvestigation by the OFT or the regulator, the CAT does not have jurisdiction to set time limits for completion of that investigation (Ofcom & OFT/Floe Telecom)
University College London
Summary The Court of Appeal (England and Wales) has held that, when the Competition Appeal Tribunal (CAT) has set aside a decision of the Office of Fair Trading (OFT) or sectoral regulators, and has ordered a reinvestigation by the OFT or the regulator in question, the CAT does not have (...)

Malta competition law and Human rights: Some insights
Superior Courts of Malta
Synthesis The following is the fruit of the author’s experience in preceding over the Commission for Fair Trading of Malta since its inception. The analysis attempts to identify gaps and other short-comings in the existing regime with an eye on issues relating to Human Rights. I. PROPER (...)

The Czech Competition Office made reference to Art. 8 ECHR in defining the scope of its investigative powers (Delta/Odkolek - Penam)
Gide Loyrette Nouel (Prague)
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PRK Partners (Prague)
This contribution provides a summary of the Czech Competition Office first-instance and appellate decisions addressing the limits to the right to privacy in the context of the Office’s investigation conducted in the business premises of an undertaking suspected of having infringed competition (...)

Regulations

The German Federal Constitutional Court declares the inadmissibility of a complaint challenging a provision of the Energy Act which obliges operators of private power plants to reduce power input on request of the grid operator in return for a compensation (German Electricity Grid)
Bird & Bird (Dusseldorf)
Constitutional Court Declares Complaint Against Curtailment Provision in Energy Act Inadmissible* In a recent decision the Federal Constitutional Court (BVerfG) declared a constitutional complaint (Verfassungsbeschwerde) inadmissible that challenged a provision in the German Energy Act (EnWG) (...)

Public sector

The EU General Court establishes a demanding standard for the duty to give reasons in procurement cases (Sviluppo Globale GEIE)
European Procurement Law Group
Duty to give reasons under EU procurement law and EU trademark law: is there a contradiction?* Even if they may seem two – rather disconnected – areas of legal practice, reading cases on EU public procurement and on EU trademark law sometimes offers interesting insights into broader issues of EU (...)

The EU General Court issues a new decision concerned with the extent of the duty to provide reasons to disappointed tenderers (Sviluppo Globale)
European Procurement Law Group
Again on procurement debriefing and its excesses: Extent of the duty to give (very detailed) reasons to bidders and right to a fair trial (T-183/10)* In its Judgment of 10 October 2012 in case T‑183/10 Sviluppo Globale GEIE v Commission, the General Court has issued a new decision concerned (...)

The French Competition Council restrictively applies the ECHR to competition law proceedings in a case of public tendering (“Strasbourg European Parliament works”)
DLA Piper (Paris)
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Cabinet Minard-Driss
In its decision n°05-D-51 dated 21 September 2005, the French Competition Council ("Conseil de la concurrence", hereafter the "Council") sanctioned anti-competitive agreements between public work firms. This decision concerned the construction of benches and offices for the European Parliament (...)

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