Rights of Defence

Anticompetitive practices

The Luxembourg Administrative Court dismisses the appeal of the state of Luxembourg and confirms the annulment of the decisions imposing interim measures against national incumbent telecom operator (P&T)
FratiniVergano
1. Facts Several telecommunications companies introduced a complaint for abuse of dominant position against “Entreprise des Postes et Télécommunications” (hereafter “P&T”) to the Luxembourg Competition Inspectorate. The latter requested the President of the Luxembourg Competition Council (...)

The Polish Supreme Court provides guidance on setting fines for resale price maintenance and recognizes the privilege against self-incrimination in the national competition law (Polifarb Cieszyn – Wrocław)
Office of Competition and Consumer Protection (Poland)
Introductory remarks In its decision of 18 September 2006, the President of the Office of Competition and Consumer Protection (hereinafter referred to as the ’President of UOKiK’) imposed fines on Polifarb Cieszyn - Wrocław S.A. (hereinafter referred to as ’PCW’) Praktiker Polska, OBI, Castorama, (...)

The EU General Court dismisses the actions of undertakings in a cartel case and and upholds the fines imposed by the Commission (Smart card chips cartel)
Van Bael & Bellis (Brussels)
Article 27(2) of Regulation No 1/2003 provides that the parties’ rights of defence are to be fully respected in proceedings by the European Commission pursuant to Articles 101 and 102 TFEU. Article 12 of Regulation 773/2004 states that the Commission must give the parties to whom it has (...)

The Belgian Competition Authority raids several undertakings active in the sale of over-the-counter products pharmacies
Belgian Competition Authority (Brussels)
The Belgian Competition Authority confirms inspections at several undertakings active in the sale of non-prescription products in pharmacies* The Investigation and Prosecution Service of the Belgian Competition Authority (hereafter “BCA”) confirms that the BCA has conducted inspections this week (...)

The US Court of Appeals for the 7th Circuit rejects a claim of collusion in the text messaging sector and reminds the limits of "hot" documents (Text messaging antitrust litigation)
BakerHostetler (Washington)
Collusion Course: The Limits of Hot Documents* Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in proving (...)

The EU Court of Justice holds that parent companies may be fined for repeated infringements even without being an addressee of the earlier decisions (Versalis)
White & Case (Brussels)
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General Court of the European Union (Luxembourg)
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White & Case (Brussels)
On 5 March 2015, the European Court of Justice (CoJ) handed down its judgment in Versalis , concerning the increasing of fines for antitrust infringements where a company is found to be a repeat offender. The judgment raises important questions about the respect for the rights of defence in EU (...)

The Ontario Superior Court of Justice holds that communications between corporations and the Competition Bureau during the proffer stage of the immunity program or the leniency program should not be protected by settlement privilege (Nestlé Canada)
Norton Rose Fulbright (Toronto)
The Ontario Superior Court of Justice held in R. v Nestlé Canada Inc. that communications between corporations and the Competition Bureau (Bureau) during the proffer stage of the Immunity Program or the Leniency Program should not be protected by settlement privilege. This case has clear (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to allegations that immunity had been forfeited by the inclusion of non-producer members (Mushroom Direct Purchaser)
Sheppard Mullin (Los Angeles)
Agricultural Cooperative Antitrust Litigation Continues to Mushroom* Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser Antitrust (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the antitrust laws (Mushroom Direct Purchaser)
BakerHostetler (Washington)
Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims* A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the (...)

The US Court of Appeals for the Second Circuit denies Government’s en banc petition in Munibonds Statute of Limitations Case and confirms the limitation of the payment theory (Grimm)
GeyerGorey (Washington)
Second Circuit Denies Government’s En Banc Petition in Munibonds Statute of Limitations Case* In its first Munibonds trial in 2012, the Antitrust Division convicted three former General Electric executives for rigging bids to suppress interest rates paid to municipalities on funds they raised (...)

The South African Competition Commission conducts dawn raids at the offices of undertakings competing on the markets for panel beating, spray painting and towing of vehicles (Precision / Eldan / VAAC)
Nortons Incorporated
Auto-Body Repair Centres raided by SACC* Earlier on 4 July 2014, the South African Competition Commission (“Commission”) has conducted dawn raids at the offices of Precision and Sons (“Precision”), Eldan Auto Body (“Eldan”) in Pretoria West, as well as the Vehicle Accident Assessment Centre (“VAAC”) (...)

The EU Court of Justice upholds the expansive geographic reach of a European Commission dawn raid decision in a cartel investigations (Nexans)
Jones Day (Brussels)
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Jones Day (Brussels)
The European Court of Justice (ECJ) has upheld the expansive geographic reach of a European Commission dawn raid decision in the electric cables cartel investigations. Nexans, one of ten companies being investigated, had argued that the geographic scope was overbroad and provided an (...)

The Polish Court for the Competition and Consumer Protection reduces severe penalty imposed by the Competition Authority for obstructing inspections during a dawn raid (Polkomtel)
Affre i Wspólnicy
On 18 June 2014, the Polish Court for the Competition and Consumer Protection (“SOKiK”) changed the decision issued by the President of the Office of Competition and Consumer Protection (“NCA”) in which Polish mobile telecom operator (Polkomtel) was fined for non-cooperation in the course of a dawn (...)

The Federal Court of Australia files an application seeking to challenge compulsory examination notices being part of an antitrust investigation into allegations of cartel conduct regarding a tender process for an exploration mining licence (Paul and Moses Obeid)
Australian Competition and Consumer Commission
Moses and Paul Obeid issue court challenge to ACCC examination notices* In response to media inquiries, the ACCC confirms that an application has been filed in the Federal Court of Australia which seeks to challenge compulsory examination notices issued by the ACCC to Paul and Moses Obeid (...)

The US District Court for the Eastern District of Virginia denies motion to dismiss hearing in a case concerning an alleged exclusion from competing in health care markets (Dr. Yvoune Kara Petrie / Virginia Board of Medicine)
Bona Law (San Diego)
The Virginia Board of Medicine Violated the Antitrust Laws* Last week (17-23 March 2014) was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over (...)

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 Supreme Administrative Court of Czech Republic refuses to allow judicial review of a dawn raid (Schneider Electric)
Weil, Gotshal & Manges (Prague)
On 13 February 2014, the Supreme Administrative Court rejected cassation complaint lodged by Schneider Electric CZ against the judgment of the Regional Court in Brno which rejected a claim that had been submitted previously against the allegedly unlawful dawn raid that had took place at (...)

The UK OFT brings criminal charges against ex-manager following an investigation into suspected cartel conduct in respect of the supply of galvanised steel tanks for water storage (Peter Nigel Snee)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?* The Office of Fair Trading (OFT) has charged Peter Nigel Snee under section 188 of the Enterprise Act 2002. It is alleged (...)

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 EU Court of Justice dismisses the appeal while establishing that a claim for compensation for damages arising from the General Court’s failure to adjudicate within a reasonable time must be brought before the General Court itself (Gascogne)
Garrigues (Brussels)
The Groupe Gascogne Judgment (see both sides of the story)* Last week I wrote a post about the Groupe Gascogne Judgment (and other stuff) which has elicited some interest. Somehow oddly, I will now present counter-arguments against all those who… actually agreed with me. Given that I wrote (...)

The Botswana Competition Tribunal rejects a complaint against the dual role played by the CA as administrative and adjudicating body in relation with a case of collusive agreement to set prices for repairing vehicles (Panel Beating Cartel)
Norton Rose Fulbright (Johannesburg)
Due process arguments come to the fore as the Botswana Competition Authority gears itself for enforcement* In September and October, the Botswana Competition Commission (Commission) took its first two rulings on cartel enforcement. Both rulings have a keen (if not almost exhaustive) focus on (...)

The Australian Federal Court establishes that the defendant has been directly knowingly involved in the anticompetitive arrangements and imposes criminal sanctions (Chaste Corporation)
Australian Competition and Consumer Commission
Peter Foster sentenced for contempt of court* The Federal Court has sentenced Peter Foster to three years imprisonment, with 18 months to be served and 18 months suspended, for contempt of court. Justice Logan also placed conditions on Mr Foster’s involvement in the weight loss, cosmetic or (...)

The EU Court of Justice acknowledges that two companies can independently from each other exercise decisive influence over their joint venture (EI du Pont de Nemours)
Blackstone Chambers
A family affair: parental liability for joint ventures* It is trite law that a parent company will be liable for antitrust infringements committed by a subsidiary where the parent exercises “decisive influence” over the conduct of the subsidiary. Earlier this year the Court of Justice of the (...)

The EU Court of Justice acknowledges that two companies can independently from each other exercise decisive influence over their joint venture (Dow Chemical)
Blackstone Chambers
A family affair: parental liability for joint ventures* It is trite law that a parent company will be liable for antitrust infringements committed by a subsidiary where the parent exercises “decisive influence” over the conduct of the subsidiary. Earlier this year the Court of Justice of the (...)

The EU Court of Justice confirms that a parent company can be held liable and fined for an antitrust infringement committed by its 50:50 joint venture (Dow Chemical Company)
Hogan Lovells (Brussels)
50:50 joint ventures – Possibility of parental liability for EU antitrust infringements confirmed* On 26 September 2013, the Court of Justice of the European Union (“CJEU”) issued two important judgments (Case C-172/12 P, El du Pont de Nemours and Others v Commission and Case C-179/12 P, Dow (...)

The EU Court of Justice confirms that a parent company can be held liable and fined for an antitrust infringement committed by its 50:50 joint venture (El du Pont de Nemours)
Hogan Lovells (Brussels)
50:50 joint ventures – Possibility of parental liability for EU antitrust infringements confirmed* On 26 September 2013, the Court of Justice of the European Union (“CJEU”) issued two important judgments (Case C-172/12 P, El du Pont de Nemours and Others v Commission and Case C-179/12 P, Dow (...)

The Botswana Competition Commission refuses to confirm the settlement on the basis of lack of any evidence about the respondent’s involvement in the alleged bid rigging food cartel (Ya Raheem)
Norton Rose Fulbright (Johannesburg)
Due process arguments come to the fore as the Botswana Competition Authority gears itself for enforcement* In September and October, the Botswana Competition Commission (Commission) took its first two rulings on cartel enforcement. Both rulings have a keen (if not almost exhaustive) focus on (...)

The Portuguese Competition, Regulation and Supervision Court declares cartel offense to be time-barred, but upholds decision imposing fines on information exchange infringement (Canteen Cartel)
Abreu Advogados
Following the Portuguese Competition Authority (PCA) decision dated 30 December 2009 imposing a total EUR 14,720,283.27 fine on five undertakings operating on the Portuguese foodservice/catering market - Eurest (Portugal) – Sociedade Europeia de Restaurantes e Alimentação, Lda. (“Eurest”), (...)

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 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 upholds General Court ruling in synthetic rubber cartel case (Versalis)
Van Bael & Bellis (Brussels)
On 13 June 2013, the European Court of Justice (“ECJ”) handed down a ruling upholding the General Court’s (“GC”) judgment of 13 July 2011 that reduced from € 272.25 million to € 181.5 million the fine imposed on Versalis, a subsidiary of Italian oil company Eni, for its participation in a cartel (...)

The UK Royal Assent is given to the Enterprise and Regulatory Reform Bill that reverses the dishonesty requirement and excludes openly made cartels
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy Blog. The UK’s New Cartel Offence: It Could Be Alright on the Day* The Enterprise and Regulatory Reform Act 2013 drops the requirement of dishonesty and excludes cartel agreements made openly. At a late stage three additional defences were (...)

The Lisbon Appeal Court upholds NCA’s decision fining an association of parking companies for participating in a cartel (ANEPE)
Sérvulo & Associados
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Eduardo Paz Ferreira & Associados
On 31 December 2010, the Portuguese Competition Authority (PCA) adopted a decision finding that the Portuguese Association of Parking Companies (ANEPE) had adopted an anticompetitive decision and imposed a fine of EUR 1.971.397, 17. In short, the PCA concluded that ANEPE had coordinated its (...)

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 (...)

The German Federal Constitutional Court decides that the statutory imposition of interest on cartel fines is consistent with the national constitutional law
German Competition Authority (Bonn)
Bundeskartellamt welcomes decision of Federal Constitutional Court on interest charged on cartel fines* In its ruling of 19 December, 2012, which was made public today, the First Senate of the Federal Constitutional Court decided that the statutory imposition of interest on cartel fines is (...)

The UK Competition Appeal Tribunal establishes the limited probative value of early resolution agreements in the context of the present appeal concerning the participation of a retailer in unlawful practices as regards cheese pricing (Tesco / OFT)
Blackstone Chambers
Tesco scores partial victory in cheese cartel* In a judgment handed down this afternoon, the Competition Appeal Tribunal largely upheld Tesco’s appeal against the OFT’s decision that it had participated in unlawful agreements relating to the price of cheese: see Tesco Stores Ltd v Office of Fair (...)

The German Constitutional Court confirms legality of obligation to pay interest for the period of an unsuccessful appeal against a cartel decision (Zinsverpflichtung)
Mayer Brown (Brussels)
In its judgment of 19 December 2012, the German Constitutional Court held that the obligation to pay interest requested by a penalty notice of the German Federal Cartel Office ("FCO") against legal persons or associations pursuant to Sect. 81(6) Act Against Restraints of Competition ("ARC") (...)

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 (...)

A US District Court allows a plea of nolo contendere, while retaining full discretion at sentencing to impose any penalty and fine against a price-fixing conspiracy engaged by an air cargo carrier (Florida West)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). US District Court blows full time on cartel proceedings against Florida West* The District Court has made the rare decision to accept a plea of no contest from airline Florida West, ending the (...)

The EU General Court dismisses appeal against Commission’s re-adoption of carbonless paper cartel decision (Bolloré)
Van Bael & Bellis (Brussels)
On 27 June 2012, the General Court (“GC”) handed down its judgment on the appeal brought by French investment and industrial group Bolloré against the European Commission’s re-adoption of its decision in the carbonless paper cartel. The GC upheld the fine of € 21.26 million and ruled that the (...)

The Hungarian Supreme Court pronounces a document acquired from an unspecified source as admissible in a bid rigging case concerning tenders published by the Municipality of Budapest for construction and renovation works
Hungarian Competition Law Research Centre
Facts The Hungarian Competition Office (HCO) established that the defendants engaged in bid-rigging concerning certain tenders published by the Municipality of Budapest for construction and renovation works (roads, bridges) and imposed fines. The key evidence was a hand-written document that (...)

A US federal district court approves three settlements in a class action for price-fixing conspiracies in the concrete industry defining the case “a model for the nation” (Iowa Ready-Mix Concrete Antitrust Litigation)
Wolters Kluwer (Riverwoods)
What Do Model Antitrust Class Actions Look Like?* “[O]vercome with a rare and gargantuan sense of awe,” a federal district court judge in Sioux City, Iowa, has called a consolidated class action case arising from price fixing conspiracies in the concrete industry “a model for the nation.” The (...)

A US Court of Appeals holds claims against a foreign price-fixing cartel in the potash industry either exempted under the Foreign Trade Antitrust Improvements Act or insufficient to state a cause of action under the Twombly/Iqbal pleading standards (Potash)
Cleveland-Marshall School of Law
Potash Potash Potash!!!!! En Banc Review Is in the Hizz-ouse, Y’all!* Something striking occurred in the Seventh Circuit this year. In two different, massive antitrust class actions, in the space of about nine months, panels of that court applied the Twombly-Iqbal pleading formula to reach (...)

The EU General Court reduces fine in the Dutch beer cartel case finding that the EU Commission did not prove all infringements and that the duration of the procedure was excessive (Bavaria)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court reduces fine in the Dutch beer cartel case finding that the EU Commission did not prove all infringements and that the duration of the procedure was excessive (Heineken)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU Court of Justice issues a preliminary ruling on disclosure of leniency documents to third parties heightening concerns about encouraging private enforcement (Pfleiderer)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. ECJ Ruling in Pfleiderer Heightens Concerns about Encouraging Private Enforcement* The European Court of Justice (ECJ) has ruled that EU Law does not prohibit access to leniency documents by third parties seeking damages. Access should (...)

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 (...)

The EU Advocate General Kokott advises ECJ to quash General Court judgment in soda ash cartel case (Solvay/CFK)
Van Bael & Bellis (Brussels)
On 14 April 2011, Advocate General (“AG”) Juliane Kokott advised the European Court of Justice (“ECJ”) to set aside the 2009 judgment of the General Court (“GC”) partially upholding the Commission’s 2000 decision fining Solvay and CFK for their participation in a cartel affecting the market for soda (...)

The EU Court of Justice’s Advocate General Kokott recommends annulment in soda ash cases due to infringements of rights of defence (Solvay/Commission)
Van Bael & Bellis (Brussels)
On 14 April 2011, Advocate General (“AG”) Juliane Kokott issued her opinion in cases C-109/10P and 110/10P, Solvay SAv. Commission, recommending that the Court of Justice (“ECJ”) annul two Commission decisions fining chemicals company Solvay for infringing Articles 81 and 82 EC (now Articles 101 (...)

The French Court of Cassation rules that non-contestation of the objections by certain parties limits others’ defence to non-participation in the infringement (Manpower / Adecco / Adia / Randstad)
Vogel & Vogel
The Paris Court of Appeal had ruled against the world’s leading temporary employment agencies for a price cartel concerning their major clients. The Court of Cassation has delivered a most informative decision of rejection in respect of all the appeals – essentially procedural - against the (...)

The Athens Administrative Court of Appeal annuls a decision of the Hellenic Competition Commission imposing fines for resale price maintenance in the automobile sector (ALTO Sarris/FIAT)
Bank of Greece
Introduction On 22 February 2011, the Athens Administrative Court of Appeal (Dioikitiko EfeteioAthinon, hereafter: the Court) delivered Ruling No 458/2011 annulling Decision No 437/V/2009 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC) which had imposed (...)

The Athens Administrative Court of Appeal annuls a decision of the Hellenic Competition Commission imposing fines for resale price maintenance in the automobile sector (ALTO Sarris/FIAT)
Bank of Greece
Introduction On 22 February 2011, the Athens Administrative Court of Appeal (Dioikitiko EfeteioAthinon, hereafter: the Court) delivered Ruling No 458/2011 annulling Decision No 437/V/2009 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC) which had imposed (...)

The Athens Administrative Court of Appeal annuls a decision of the Hellenic Competition Commission imposing fines for resale price maintenance in the automobile sector (ALTO Sarris/FIAT)
Bank of Greece
Introduction On 22 February 2011, the Athens Administrative Court of Appeal (Dioikitiko EfeteioAthinon, hereafter: the Court) delivered Ruling No 458/2011 annulling Decision No 437/V/2009 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC) which had imposed (...)

The Athens Administrative Court of Appeal annuls a decision of the Hellenic Competition Commission imposing fines for resale price maintenance in the automobile sector (ALTO Sarris/FIAT)
Bank of Greece
Introduction On 22 February 2011, the Athens Administrative Court of Appeal (Dioikitiko EfeteioAthinon, hereafter: the Court) delivered Ruling No 458/2011 annulling Decision No 437/V/2009 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC) which had imposed (...)

The Spanish Competition Commission fines an association for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector (Asociación Nacional de Perfumería y Cosmética - STANPA)
European Commission - DG COMP
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Perez Llorca
On February 7, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined Asociación Nacional de Perfumería y Cosmética (“STANPA”) €901,518.16 for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector in (...)

The Paris Court of Appeal rejects appeals in the online travel sales sector for vertical practices and abuse of dominance under both EC and national provisions (SNCF / Expedia)
Novartis (Rueil-Malmaison)
BACKGROUND The Paris Court of Appeals (hereafter “the Court”) confirms a decision by the French Competition Council (hereafter “the Council”) which fined SNCF and Expedia, Inc. (hereafter “Expedia”) in a decision No. 09-D-06 of 5 February 2009. The appeal was brought by Karavel (a travel agency, (...)

The Paris Court of Appeal confirms the amount of fines imposed on temporary employment agencies for concerted practices under Art. 81 EC and its French equivalent and clarifies the procedural issue of access to confidential electronic documents (Manpower / Adecco / Adia / Randstad)
White & Case (Paris)
In a ruling dated 26 January 2010, the Paris Court of Appeal confirmed a decision by the French National Competition Authority (the “NCA”) sanctioning world-leading companies in the temporary employment sector for infringing Article 81 EC and its French equivalent. Background Following a (...)

The European Court of Justice partially annuls Commission decision on rights of defence in carbonless paper cartel (Papierfabrik August Koehler)
Van Bael & Bellis (Brussels)
On 3 September 2009, the ECJ partially set aside the CFI’s judgment and annulled the Commission’s decision in the carbonless paper cartel case. In December 2001, the Commission fined ten undertakings a total of € 313.7 million for their participation in a series of price-fixing agreements and (...)

The Portuguese Competition Authority renews the decision against milling cartel imposing fines of around 9 million euros (Cerealis - Milling cartel)
Sérvulo & Associados
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Serra Lopes Cortes Martins & Associados
Last July 8th 2009, the Portuguese Competition Authority (Autoridade da Concorrência - “AdC” or “PCA”) has issued a new decision imposing fines of around 9 million euros on 11 flour-milling undertakings for coordinating prices, to the detriment of consumers, for breach of Article 4 (1) a) of the (...)

The European Court of First Instance dismisses action against Commission’s re-adopted decision relating to the steel alloy surcharge cartel (ThyssenKrupp Stainless)
Van Bael & Bellis (Brussels)
On 1 July 2009, the Court of First Instance (CFI) dismissed in its entirety an action by ThyssenKrupp Stainless AG (formerly Krupp Nirosta GmbH) against the European Commission’s re-adopted decision in the alloy surcharge antitrust proceeding. ThyssenKrupp had appealed against the re-adoption (...)

The English High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald/British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom
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Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

The Turkish Competition Authority’s member of the board expresses dissenting opinion in relation to the legality of the fines imposed according to the newly adopted fining regulations
Stories on the Fining Regulation (1): Can Anyone Spot The Difference?* The story begins in January 2008 by the amendments made to the Competition Act. These amendments mainly contain the inclusion of the leniency and the possibility of imposition of fines on individuals. Apart from that, the (...)

The Luxembourg Administrative Court confirms the fines and daily penalties imposed by the Competition Council to undertakings for not communicating concrete information to the Competition Inspectorate (House of Justice)
Arendt & Medernach (Luxembourg)
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European Investment Bank
Background of the case 1. The flooring works in the new court buildings in the city of Luxembourg are still the object of the most prolific cartel procedure in the recent history of Luxembourg competition law. The case has already led to several decisions while the cartel investigations are (...)

The Portuguese Competition Authority accepts commitments of a leading food company in relation to vertical restraints (Nestlé)
Ana Oliveira Bruno e Associados - Sociedade de Advogados (Lisbon)
1) The Administrative Proceedings – Autoridade da Concorrência (Portuguese Competition Authority) The investigation of the practice started by a complaint presented to PCA. After investigating and analyzing the contracts entered into between Nestlé and hotels, restaurants and cafeterias (known (...)

The ECJ Advocate General Mazák recommends rejection of appeals in French beef case (Coop de France bétail and viande)
Van Bael & Bellis (Brussels)
On 17 April 2008, Advocate General Mazák delivered an opinion in relation to the joined appeals brought before the European Court of Justice (ECJ) by the Coop de France Bétail et Viande(FNCBV) and the Fédération nationale des syndicats d’exploitants agricoles(FNSEA), the Fédération nationale (...)

An Estonian Circuit Court’s ruling in a criminal case concerning an attempt to fix prices, share markets and engage in collective boycott on the basis of national provisions similar to Article 101 TFEU (Oleg Ossinovski and AS Spacecom)
COBALT Legal
On 11 March 2008, the Tallinn County Court (a court of appeal) upheld an earlier ruling of Harju County Court, which had convicted a railway freight services provider, AS Spacecom («Spacecom»), and its management board member Oleg Ossinovski of an attempt to agree on restrictions of competition (...)

A Portuguese Court annuls the NCA’s decision to convict 10 milling companies on the basis of the violation of the right to due process (Cerealis / Milling cartel)
PLMJ (Lisboa)
I. The facts and the administrative proceedings On September 2005, the Portuguese Competition Authority (the “PCA”) issued a decision finding 10 milling companies (representing 75% of the market) guilty of fixing the price of wheat flour between December 2000 and August 2004, and imposed a total (...)

The US Supreme Court holds that an allegation of parallel conduct and a bare assertion of an agreement don’t suffice to state a claim of conspiracy under the Sherman Act (Bell Atlantic / Twombly)
Paul Hastings (New York)
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Paul Hastings (New York)
,
INTRODUCTION On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In Bell Atlantic Corp. v. Twombly, No. 05‐1126, the Supreme Court (...)

The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
University of Indiana - Maurer School of Law
Pleading Consumer Antitrust Claims* The U.S. has long followed a system of private enforcement of law meant to redress public harm. In the law of antitrust, from the very beginning U.S. law provided a claim to plaintiffs who could show harm flowing from the violation. Convincing private (...)

The Lisbon Court of Commerce annuled the NCA’s decision concerning a vertical restraint (Nestlé Portugal)
Cuatrecasas, Goncalves Pereira (Lisbon)
,
Gleiss Lutz (Stuttgart)
On 15 February 2007, the Lisbon Court of Commerce admitted the appeal filed by the appellant Nestlé Portugal, S.A., of the decision of the Portuguese Competition Authority on infringement for vertical restraints. The case was based on the decision of the Portuguese Competition Authority, dated (...)

The Lisbon Commerce Court confirms decision against shipping agents association for price-fixing but reduces the amount of fines (AGEPOR)
University of Lisbon
,
Abreu Advogados
In January 2006 the Portuguese Competition Authority (PCA) fined AGEPOR, a Portuguese shipping agents association, € 195.000 for price fixing. AGEPOR appealed against the decision to the Lisbon Commerce Court. AGEPOR grounded its appeal both on procedural and substantive arguments. First, the (...)

Dominance

The EU Court of justice revisits forty years of case law on when a dominant company’s rebate scheme may be abusive (Intel)
Baker McKenzie (Brussels)
,
Baker McKenzie (London)
In its ruling on the European Commission’s 500 page Intel decision, in a crisp 150 paragraphs, the EU Court of Justice (the Court) revisited forty years of jurisprudence on when a dominant company’s rebate scheme may be abusive. Though no final decision for Intel, the case marks a potentially (...)

The Brazilian Administrative Council for Economic Defense renders two legal opinions in investigations related to sham litigation practices (Eli Lilly do Brasil)
Tauil & Chequer (in cooperation with Mayer Brown)
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Tauil & Chequer (in cooperation with Mayer Brown)
On August 20, 2014, the General Superintendence of the Administrative Council for Economic Defense (“CADE”) rendered two legal opinions in investigations related to sham litigation practices recommending to CADE’s Tribunal: (i) the conviction of the companies Eli Lilly do Brasil Ltda. and Eli (...)

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)
University of Bristol - Law School
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 UK OFT decides it has no grounds to take further action against fuel card operator over alleged abuse of dominance (CH Jones)
The University of Manchester
The facts CH Jones is a subsidiary of Fleetcor Inc and in the course of its practice it issues fuel cards under its ‘Keyfuels’ brand. The latter are payment cards to access diesel on the road and are often used by firms with a fleet of large goods vehicles. CH Jones’ customers purchase diesel (...)

The Swiss Supreme Court upholds fines against media sales and marketing services group in an abuse of dominance case (Publigroupe)
Université de Genève
In a much awaited decision, the Swiss Supreme Court dismissed an appeal directed against the decision of the Swiss Federal Administrative Tribunal confirming a fine of CHF 2.5 million (approximately € 2 million) imposed by the Swiss Competition Commission ("Comco") on Publigroupe for abuse of a (...)

The English High Court grants an interim injunction against the use by private hire vehicles of bus lanes marked for taxis: insufficient connection with EU law (Transport for London)
Matrix Chambers
Taxi wars in London – does EU law have a role to play?* On Thursday of last week the High Court granted Transport for London (TfL) an interim injunction relating to the high-profile raising of the stakes in its battle with Addison Lee (AL), the largest “private hire” (ie minicab) operator (PHO) (...)

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 Spanish Supreme Court changes stance and rules that an isolated conduct in the daily energy market constitutes a continuous abuse of dominance (Iberdola Generación)
European Commission - DG COMP
I. The Spanish generation market As has been described in previous bulletin articles the Spanish generation market is extremely complex and heavily intervened by burdensome regulation. In a nutshell, tenders (pools) are organised every hour of the day by a public entity in order to fulfil the (...)

The US Senate Committee on the Judiciary Subcommittee on Antitrust conducts antitrust hearings on abuse of dominance investigation in the web search industry (Google)
Rimm-Kaufman Group (Charlottesville, VA)
Google Antitrust Hearing: 5 Takeaways* While yesterday’s Senate antitrust hearing on Google practices may have been more about spectacle than action, it was an opportunity to gain insights into the mindset of Google and the government officials that may seek to intervene in their operations. (...)

A US Court of Appeals rules for an hospital holding that its campaign to block a potential rival does not violate s. 2 of the Sherman Act and is protected from antitrust liability under the Noerr-Pennington doctrine (Mercatus Group, Lake Forest Hospital)
Wolters Kluwer (Riverwoods)
First Amendment Rights Provide Antitrust Shield for Successful Petitioning to Block Potential Rival* How far can a competitor go in an effort to convince a local government to block a potential rival from setting up shop in its area without running afoul of the antitrust laws? Last week, the (...)

The European Commission sends SOs following a complaint lodged by several associations representing investors against financial service company (Standard & Poor’s)
Ashurst (Milan)
Commission sends statement of Objections to Standard & Poor’s* On 16 November 2009 the Commission sent a Statement of Objections (“SO”) to Standard & Poor’s (“S&P”), a division of McGraw-Hill Companies, Inc. The SO follows a complaint lodged by several associations representing (...)

The Latvian Supreme Court uppholds the Competition Council’s decision on abuse of dominance in the telecommunication sector (Lattelecom)
Competition Council of Latvia
Supreme Court Upholds the Decision on Abuse of Dominant Position by Telecommunication Company* With the decision of 5 May 2009 the Senator Collegium of the Department of Administrative Cases of the Senate of the Supreme Court has dismissed legal proceedings concerning the 17 July 2002 decision (...)

The European Court of First Instance upholds Commission decision against a maritime company (Compagnie Maritime Belge)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 1 July 2008, the Court of First Instance (“CFI”) issued its judgment on Compagnie Maritime Belge’s appeal of the Commission decision of 30 April 2004 (the “Decision”), which had fined it € 3.4 million for the infringements of Article 82 EC established in the Commission original decision of 23 (...)

The EU Commission is about to close proceedings against US chipset manufacturer for alleged abuse of dominance in the mobile phone technology sector (Qualcomm)
University of South Australia
"The Last Hundred Days Strategy"- Is the Qualcomm Case Over?* Milton Friedman and his wife Rose Friedman are known for having theorized that recently elected governments generally enjoy a period of political immunity following elections, which allows them to push reforms, including tough ones, (...)

The Lisbon Court of Commerce quashes the Competition Authority’s first ever abuse of dominant position infringement decision in the underground ducts’ telecom network access case, upheld on appeal (PT Comunicações)
European Court of Justice (Luxembourg)
I. The case, the PCA’s decision and the judgments After receiving complaints from telecom undertakings “TvTel Comunicações” and “Cabovisão”, the Portuguese Competition Authority (hereinafter “PCA”) launched an investigation in 2003 into the allegations that Portugal Telecom Comunicações (hereinafter (...)

The Spanish Competition Authority fines for the third time an electricity utility for excessive high prices (Iberdrola Castellón)
European Court of Justice (Luxembourg)
Spanish Competition Authority (Tribunal de Defensa de la Competencia), 8 March 2007, Iberdrola Castellón, Decision n° 601/05 The time is come for Spanish main utilities to carry out a serious competition law assessment before putting a price to the power they offer within the framework of the (...)

The Queen’s Bench Division of the High Court of England & Wales gives important guidelines as to the standard of proof for claiming damages in competition cases (Arkin)
Reed Smith (London)
Arkin v. Borchard Lines Ltd., [2003] All E.R. (D) 173, [2003] EWHC 687 (Comm) (10 April 2003), is important as one of the first damages claims brought in a United Kingdom court for breach of Articles 81 and 82 of the Rome Treaty involving private enforcement of competition law. It was decided (...)

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 EU General Court annuls a Commission decision prohibiting a merger in the parcel delivery sector on due process grounds (UPS / TNT)
White & Case (Brussels)
Background On 15 June 2012, the global specialist transport and logistics provider United Parcel Services (“UPS”) notified the European Commission of its proposed acquisition of TNT Express NV (“TNT”) under the EU Merger Regulation. UPS and TNT are both active on international express small (...)

The South African Minister of Economic Development intervenes in favour of allowing the implementation of an acquisition in the agricultural sector (AFGRI / AgriGroupe)
Primerio
Worrying trends in South African merger control – Government’s abuse of process continues unabated* Secret deals sideline competition authorities In what can only be described as a significant step backwards in ensuring that the more established of the emerging economies enforce the application (...)

The Portuguese Competition, Regulation and Supervision Court annuls decision imposing a fine on a non-notified merger due to shortcomings related to rights of defence (ANF / Farminveste)
Abreu Advogados
Following the Portuguese Competition Authority (PCA) decision dated 28 December 2012 imposing a total EUR 149,278.79 fine on the National Pharmacy Association (Associação Nacional de Farmácias - ANF) and two of its subsidiaries, Farminveste 3 – Gestão de Participações, S.G.P.S., Lda. (Farminveste (...)

The French Supreme Administrative Court upholds the French Competition Authority’s decision sanctioning food distributor Colruyt for failing to notify a concentration (Colruyt)
Gide Loyrette Nouel (Paris)
On 24 June 2013, the French Supreme Administrative Court confirmed the French Competition Authority (“FCA”)‘s decision n°12-D-12 dated 11 May 2012 imposing a €392.000 fine on Etablissements Fr. Colruyt (“Ets Fr Colruyt”), the parent company of group Colruyt, for failing to comply with article L.430-3 (...)

The Finnish Parliament approves the new Competition Act introducing amendments to both merger and antitrust rules
European Commission
Finland: New Competition Act approved by the Parliament* On 11 March 2011, the Finnish Parliament approved the new Finnish Competition Act. The Act will enter into force in autumn 2011. The main amendments are the following. One of the major changes brought by the new law relates to the (...)

The European Court of Justice sets aside the first judgment of the General Court annulling a commitment decision and dismisses breaches of the principle of proportionality and due process standards by the Commission (Alrosa, De Beers)
Université Catholique de Louvain
Alrosa, negotiated procedures and the procedural economy/due process conundrum – one step forward, three steps back?* Friends of the blogosphere: greetings! There was something refreshing in the judgment rendered in 2007 by the General Court (GC) in the Alrosa case (T-170/06). If somewhat (...)

The Serbian Competition Authority clarifies that if it does not issue individual merger decision within the specified timeframe, the notified merger should be considered prohibited (DELTA M)
University of Technology (Tallinn)
On 15 October 2009 DELTA M. d.o.o. (DELTA M) , Serbian company with operations in agribusiness, food processing, retail, distribution, automotive business, real estate development and financial brokerage applied to the Serbian Competition Authority (KZK) asking for clarification of the merger (...)

The German Federal Court of Justice confirms the prohibition of an energy merger considering that the German market for primary sales of electricity is dominated by a duopoly (E.ON / Stadtwerke Eschwege)
Freshfields Bruckhaus Deringer (Berlin)
,
Freshfields Bruckhaus Deringer
In a judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) upheld a previous decision of the Higher Regional Court of Düsseldorf (Higher Regional Court) which had itself confirmed a decision of the Federal Cartel Office (FCO) blocking E.ON’s plan to (...)

The EU Court of First Instance denies application for annulment of Commission decision on merger prohibition, though it finds that the assessment of the conglomerate effects resulting from the concentration was erroneous (Honeywell International / GE)
Sheppard Mullin (Los Angeles)
General Electric/Honeywell merger prohibition upheld by European Court of First Instance – “Conglomerate effects” analysis represents “manifest errors of assessment”* On December 14, 2005, the European Court of First Instance (“CFI”) denied the application of General Electric Company (“GE”) and (...)

State Aids

The EU General Court confirms the Commission decision holding that the Greek scheme of exclusive rights for lottery did not contain State Aid (Club Hotel Loutraki)
European University Institute (Florence)
In Brief: Case T-58/13, Club Hotel Loutraki AE and Others v Commission (judgment of 08.01.2015)* On Thursday the 8th January the GC dismissed all four pleas in the action for annulment of the Commission Decision finding that the exclusive rights granted to operate 35 000 Video Lottery (...)

The EU General Court reminds Member States that when they claim that an exemption follows from the logic of the tax system they have to make absolutely sure that they treat equally and consistently all similar cases (Ryanair)
College of Europe (Bruges)
Another Measure that Cannot Be Justified by the Logic of the Tax System* The granting of a tax exception is often found to constitute State aid. But the non-levying of a tax may also fall within the scope of Article 107(1). Competitors have more rights when the Commission does not open the (...)

The EU General Court confirms that the Commission enjoys a large margin of discretion in determining the compatibility of restructuring aid (ABN Amro Group)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Two Judgments: a) Unlimited State Guarantees and b) The Discretion of the Commission in Restructuring Measures* Main points Unlimited state guarantees are never compatible with the internal market The existence of an unlimited guarantee and its (...)

The EU Court of Justice reinforces the Plaumann test and re-emphasizes the role attributed to the national courts within the framework of the preliminary ruling procedure to ensure judicial review of the legality of EU acts (Telefónica)
University of Bristol - Law School
What’s left of the ’new limb’ of Art 263(4) TFEU after Inuit and Telefonica? (C-274/12 P)* In its Judgment of 19 December in case C-274/12 P Telefonica v Commission, the CJEU has continued to define (and minimise) the scope of Article 263(4) TFEU and, particularly, the ’new’ third limb introduced (...)

The EU General Court rules that an unlimited state guarantee granted to the postal services company constitutes incompatible state aid (La Poste)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Two Judgments: a) Unlimited State Guarantees and b) The Discretion of the Commission in Restructuring Measures* Main points Unlimited state guarantees are never compatible with the internal market The existence of an unlimited guarantee and its (...)

The EU General Court annuls the Commission’s decision by which it approved all of the measures adopted by France in favour of Corsica ferries (Corsica Ferries France)
Mircea & Partners (Bucharest)
A. Essential factual and legal aspects The shipping company, Corsica Ferries France SAS, applicant in the present dispute, offers regular ferry services to Corsica departing from continental France (Marseille, Toulon and Nice) and Italy. The shipping company and beneficiary of the aid measure (...)

The EU General Court confirms the EU Commission’s decision ruling that the Province of Burgenland had granted State aid which was not compatible with the common market (Land Burgenland and Republic of Austria)
Trummer & Thomas
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Trummer & Thomas
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Borealis
I. Introduction On 28 February 2012 the General Court confirmed the European Commission’s (“Commission”) decision of 30 April 2008 and ruled that the Province of Burgenland had granted State aid to Grazer Wechselseitige Versicherung AG (“GRAWE”) which was not compatible with the common market. (...)

The European Court of Justice upholds the General Court’s decision addressing the issue of the admissibility of action in state aid cases under the Plaumann test (Comitato Venezia vuole vivere)
European Commission - Legal Service
Death in Venice: The end of a Commission’s locus standi theory in State aid cases?* Following my previous post, I would like to briefly refer to another interesting battlefield within the State aid area: the locus standi of the beneficiaries of aid schemes (think, for instance, of tax (...)

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 (...)

Applying for leniency before the EC Commission: Lateral effects in foreign and national jurisdictions (French)
Jones Day (Brussels)
,
Jones Day (Brussels)
NB: Altough this article does not concern a specific EU member State, the editor has agreed to publish it in this e-Bulletin taking into account its strong interest for the implementation of the leniency programs in the EU (see on this subject, the review Concurrences, n° 3-2005, pp. 12-27) (...)

The English High Court rules that notes of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by legal advice privilege or lawyers’ working papers privilege (RBS Rights Issue Litigation)
Shearman & Sterling (London)
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Shearman & Sterling (London)
,
Shearman & Sterling (London)
In December 2016, the English High Court ruled that transcripts, notes and other records of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by either legal advice privilege (“LAP”) or lawyers’ working papers privilege. The (...)

The EU General Court relies on secretly-recorded telephone conversations obtained in the context of unannounced inspections (North Sea Shrimps)
Van Bael & Bellis (Brussels)
Under Article 2 of Regulation 1/2003, the Commission has the burden of proving an infringement of Article 101 TFEU. In the present case, as evidence of the cartel infringement, the Commission relied on secretly-recorded telephone conversations, and the transcripts or notes made thereof, which (...)

The Spanish Audiencia Nacional holds that mobile phones are not safe from dawn raid scrutiny (Nougat cartel)
Hogan Lovells (Brussels)
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Hogan Lovells (Brussels)
Employee’s mobile phones not safe from dawn raid scrutiny, Spanish court finds* On 7 April 2016, the CNMC (Spain’s National Authority for Markets and Competition) Council imposed fines totalling €6.12 million on six Spanish nougat (“turrón”) producers for agreeing to share the market of the main (...)

The Indian Competition Appeal Tribunal sets aside cartel fines against cement companies (Cement Cartel Case)
Vinod Dhall and Talwar Thakore & Associates
COMPAT sets aside cartel fines against cement companies* The most significant cartel development of 2015 happened to come right at the end. On 11 December 2015, the Competition Appellate Tribunal (COMPAT) set aside an order of the CCI imposing fines amounting to approx. USD 945.4 million on 11 (...)

The Canadian Federal Court provides practical guidance for parties responding to compulsory production orders from the Competition Bureau (Bell Mobility)
Davies Ward Phillips & Vineberg (Toronto)
,
Davies Ward Phillips & Vineberg (Toronto)
Responding to Compulsory Production Orders from the Competition Bureau: Federal Court of Canada Provides Practical Guidance* Canada’s Commissioner of Competition is armed with a variety of compulsory powers that he can use in pursuing investigations. One such power is the ability, with the (...)

US Senate passes antitrust whistleblower protection
GeyerGorey (Washington)
Should There Be an Antitrust Whistleblower Statute?* On July 22cd, the Senate passed the Criminal Antitrust Anti-Retaliation Act of 2015. The bill now goes to the House for consideration. If signed into law the Act will create for the first time whistleblower protections for employees who (...)

The US Senate passes a bill that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation
Wolters Kluwer (Riverwoods)
Antitrust Whistleblowers Get Another Shot at Federal Protection from Retaliation by Employers* A bill is advancing through the U.S. Senate that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation. The (...)

The UK High Court renders a judgement regarding a cartel damages settlement exploring what “collateral defence” means (W.H. Newson Holding / IMI)
Blackstone Chambers
Settling cartel damages actions: contribution defendants beware* Anyone who has ever tried to settle a cartel damages case will know that the law relating to settlements is fraught with difficulty. The recent judgment of the High Court in IMI Plc v Delta Ltd [2015] EWHC 1676 (Ch) highlights (...)

The English Court of Appeal answers the question of when a decision should be remitted to a different decision-maker (HCA International)
Blackstone Chambers
When should a decision be remitted to a different decision-maker?* The Court of Appeal’s answer to this question in HCA International Limited v CMA [2015] EWCA Civ 492 was, in effect: rarely. The judgment, which contains some serious criticism of the CMA even though it won the case, (...)

The Federal Court of Australia rules against submissions on agreed penalties (Fair Work Building Industry Inspectorate / Construction, Forestry, Mining and Energy Union)
Deakin University
On 1 May 2015 the Full Court of the Federal Court of Australia ruled that it was not permissible for parties to make joint submissions as to the appropriate ‘pecuniary penalty’ to be imposed: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (...)

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 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 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 UK Competition Appeal Tribunal holds that interveners may be in the same position as appellants, and that the test for admitting new grounds is substantially the same as that for fresh evidence (British Telecommunications / Ofcom)
Blackstone Chambers
Fresh grounds and evidence before the CAT* On the face of it, BT was the main winner in this week’s ruling from the Competition Appeal Tribunal: see British Telecommunications plc v Office of Communications [2015] CAT 6. However, the decision, which makes interesting comments on the rights of (...)

The Indian Competition Appellate Tribunal orders to Competition Commission of India to follow due process by ensuring neutrality and fairness in adjudication and raising the bar for standard of proof (Board of Control for Cricket in India / CCI)
Lakshmikumaran & Sridharan (New Delhi)
,
Lakshmikumaran & Sridharan (New Delhi)
Introduction The role of procedural justice and it’s value in shaping antitrust jurisprudence in India has never felt stronger than now. Due process has evolved as the most contemporary buzzword in the story of antitrust enforcement in India. Many of notable orders passed by the Competition (...)

Advocate General Nils Wahl recommends the avoidance of "fishing expeditions" during dawn-raid (Deutsche Bahn)
Hogan Lovells (Brussels)
European Commission dawn raids – Advocate General recommends the avoidance of “fishing expeditions”* Earlier this month, Advocate General Wahl delivered his opinion in the Deutsche Bahn1 case. This case concerns important practical principles which govern the conduct of European Commission dawn (...)

The Slovak Supreme Court outlines the principles of effective ex-post court review of dawn raids (Stengl Consulting / Slovak Competition Office)
Diwok Hermann Petsche (Baker McKenzie Vienna)
Introduction The Slovak Supreme Court (SSC) issued in February 2015 a ruling concerning the ex-post court review of unannounced inspections (dawn raids). Following the decision of the ECHR in Delta Pekárny which stressed the importance of national judges overseeing the seizures und inspections, (...)

The Spanish Supreme Court annuls inspections in a professional association on grounds of insufficient reasons for the inspection decision (UNESA)
Cuatrecasas, Goncalves Pereira (Barcelone)
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Cuatrecasas, Goncalves Pereira (Barcelone)
On December 10, 2014, the Spanish Supreme Court issued judgment number 4201/2011, allowing the appeal that the Asociación Española de la Industria Eléctrica (“UNESA”) filed against the judgment of the Audiencia Nacional (Spanish Court of Appeal, “AN”) of June 2, 2011. The AN’s judgment had dismissed (...)

The Belgian Constitutional Court confirms the legality of a separate appeal procedure against investigative measures of the Competition Authority (Ordre des barreaux francophones et germanophone)
Simmons & Simmons (Brussels)
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Simmons & Simmons (Brussels)
In brief In a judgment of 10 December 2014 the Constitutional Court confirmed the legality of a separate appeal procedure against investigative measures of the Belgian Competition Authority. The Constitutional Court ruled that the appeal procedure, which is only available following the (...)

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 Canada Supreme Court rules that civil antitrust plaintiffs may receive wire-tap evidence obtained in a criminal investigation (Imperial Oil)
Siemens (New York)
,
Patterson Belknap Webb & Tyler
Civil Antitrust Attorneys Receive Wire-Tap Evidence* The Canada Supreme Court ruled earlier this month that civil antitrust plaintiffs may receive wire-tap evidence obtained in the criminal investigation into an alleged price-fixing scheme by several large gas companies. During the criminal (...)

The Canadian Supreme Court confirms plaintiffs’ ability to obtain disclosure of wiretap evidence obtained in connection with criminal competition law investigations (Imperial Oil)
Steve Szentesi Law Corporation
Canadian Supreme Court Clears Criminal Wiretap Evidence For Use in Competition Class Actions* In an important decision released on October 17, 2014, Imperial Oil v. Jacques, 2014 SCC 66, the Canadian Supreme Court confirmed plaintiffs’ ability to obtain disclosure of wiretap evidence obtained (...)

A US District Judge holds that an antitrust compliance policy can fall outside of attorney-client privilege (Domestic Drywall)
Siemens (New York)
,
Patterson Belknap Webb & Tyler
Are Antitrust Compliance Programs Protected by Attorney-Client Privilege?* We’ve previously written about the components of effective antitrust compliance programs and the potential benefits corporations may achieve by adopting them. (Read some of our posts here and here.) In drafting (...)

The European Court of Human Rights condemns Czech Republic for lack of effective independent control of competition dawn raids (Delta Pekarny)
BPV Braun Partners
No More Dawn Raids in the Czech Republic* For a few weeks now, the Czech Antitrust Office has stopped its dawn raids. The reason for this stems from the surprising decision of the European Court of Human Rights in Strasbourg (ECHR) dated 2 October 2014 (DELTA PEKARNY a.s., complaint number (...)

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 Ontario Superior Court holds that presumptions that by possessing documents, persons and firms are deemed to know their contents are unconstitutionnal in a criminal context (Durward)
McMillan (Toronto)
,
McMillan (Toronto)
Canadian Cartel News – Volume 5 – One Place Where Possession is not Nine Tenths of the Law* Section 69(2) of the Competition Act provides that, by possessing documents, persons and firms are deemed to know their contents and to have done what the documents say was done. Particularly in the era (...)

The EU Court of Justice upholds the Commission’s first withdrawal of immunity for cartel whistleblower but finds the General Court failed to timely adjudicate (Deltafina / FLS Plast)
Jones Day (Brussels)
The European Court of Justice has upheld a €30 million fine against cartel whistleblower Deltafina, which was imposed following the withdrawal of Deltafina’s conditional immunity as a result of the breach of its duty to cooperate under the European Commission’s leniency program. This ruling (...)

The EU General Court dismisses an action for annulment on a claim of excessive length of the proceedings, since the applicant didn’t show any negative consequences impeding the right to fair trial (Reagens)
EFTA Surveillance Authority
Case T-30/10 Reagens SpA v Commission: unsubstantiated pleas and length of proceedings* The General Court’s judgment in Case T-30/10 Reagens SpA v Commission EU:T:2014:253 (alternative link here) doesn’t really break new ground. But it does remind applicants of a few basic truths. In some ways (...)

The US DOJ announces its first-ever successfully litigated extradition of a foreign citizen to the United States in a federal criminal antitrust case (Romano Pisciotti)
DLA Piper (Frankfurt)
The United States Department of Justice has announced “its first-ever successfully litigated extradition of a foreign citizen to the United States in a federal criminal antitrust case” – the extradition to the US from Germany of an Italian citizen, indicted in the so-called marine hose cartel, and (...)

The US Supreme Court affirms the judgment of the Court of Appeals for the Sixth Circuit and gives voice to criticism against the traditional standing test for antitrust claims (Lexmark International / Static Control Components)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Supreme Court Creates New Standing Test For Asserting False Action Claim Under Lanham Act* On March 25, 2014, the Supreme Court issued a unanimous opinion, authored by Justice Scalia, in Lexmark International, Inc. v. Static Control Components, Inc. In a previous post, I discussed my (...)

The EU Commission examines a complaint against Germany in consideration of the matter of discriminatory treatment of EU citizens in connection with the extradition to the US of an Italian citizen on an antitrust charge (Romano Pisciotti)
University of New South Wales (Sydney)
This article was originally published on Community Week Newsletter & Alert by King & Wood Mallesons (click here). Cartel offender takes action against EU* In early April, the US Department of Justice’s Antitrust Division (DoJ) successfully extradited Romano Pisciotti – an Italian (...)

The EU General Court confirms practice of the Commission regarding requests for information based on simple presumptions (Cementos Portland Valderrivas)
Norton Rose Fulbright (Paris)
,
Norton Rose Fulbright (Paris)
On March 14, 2014, the General Court of the European Union (General Court) has confirmed the practice of the European Commission (Commission) regarding requests for information based on simple presumptions. The judgments demonstrate a bias in favour of the effectiveness of inspections (...)

The UK Parliament adopts proposal for an opt-out regime opts out from contingency fees in collective actions
Covington & Burling (London)
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IMF Bentham (Sydney)
Sharing Risk in Collective Actions* With legislation to introduce collective actions currently making its way through Parliament (see our previous blog here), we are pleased to welcome a guest blog from Elaine Whiteford of King & Wood Mallesons LLP and Oliver Gayner of Burford Capital (...)

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 EU Parliament presents a report comprising amendments to the Commission’s legislative proposal concerning the regime of actions for damages prompted by infringements of competition law
Mircea & Partners (Bucharest)
Introduction In the beginning of the process of decentralization of the enforcement of competition law in the EU the necessity to encourage the development of private enforcement appeared to be more of a theoretical proposition than a tangible reality. Ten years after the adoption of the (...)

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 Stockholm City Court rejects petition for dismissing an application for competition damages subsequent to the issue of an injunction order giving rise to a liability to pay penalties in case of non-compliance (Swedavia)
Swedish Competition Authority (Stockholm)
The City Court rules that there are no formal obstacles to charging Swedavia for competition damages* The Swedish Competition Authority may bring an action before the court to sue for competition damages even where the behaviour that forms the basis of the claim has already been forbidden by (...)

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)
University of Bristol - Law School
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 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)
Magenta (Paris)
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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 Supreme Court of Canada establishes that specific authorisation is needed for computer searches in Canada, raising questions on the same matter in EU law (R v Vu)
Canadian International Joint Commission
Introduction The Supreme Court of Canada (“court”) ruled on November 7, 2013 in R v Vu (“Vu”) that specific warrant authorisation is needed to execute searches of computers and mobile phones . While the judgment concerned alleged offences in relation to the production and possession of (...)

The Canadian Supreme Court rules that specific authorisation needed to search computers and mobile phones (R v Vu)
Canadian International Joint Commission
Introduction The Supreme Court of Canada (“court”) ruled on 7 November 2013 in R v Vu that specific warrant authorisation is needed to execute searches of computers and mobile phones. While the decision concerned alleged offences related to the production and possession of marijuana, it most (...)

The Supreme Court of Canada rules that investigators cannot search personal electronic items without a warrant providing them with an express authorization (R. / Vu)
Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Montréal)
The Supreme Court of Canada: A Computer is Not a Cupboard* When investigating cartel violations in Canada, the Competition Bureau’s tool of choice is the “search and seizure” (the Canadian equivalent of the “dawn raid” in Europe). The Bureau execises its search and seizure powers pursuant to (...)

ECJ Advocate General Cruz Villalón deals in his opinion with the exceptions to the right of access to public documents implying that it cannot be excluded that the commercial interests of the leniency applicants may be damaged by disclosure (EnBW)
University of Bristol - Law School
AG Cruz Villalon on access to leniency applications: A stringent test. Really? (C-365/12)* In his Opinion of 3 October 2013 in case C-365/12 EnBW Energie, Advocate General Cruz Villalon has proposed a holistic interpretation of the regulatory schemes relating to access to documents of the (...)

A Dutch District Court disallows ACM from using data obtained through wiretaps in two cases (Groep / Burando)
Netherlands Authority for Consumers & Markets (The Hague)
ACM to appeal Court’s ruling against use of wiretap data* The District Court of Rotterdam has prohibited the Netherlands Authority for Consumers and Markets (ACM) in two cases from using data obtained through wiretaps, which ACM had been provided by the Dutch Public Prosecution Service (OM). In (...)

The EU Court of Justice rules on the compatibility of the antitrust procedure with the fundamental rights of the EU in elevators cartel case (Schindler)
Gibson Dunn (Brussels)
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Gibson Dunn (Brussels)
,
Gibson Dunn (Brussels)
The Schindler Ruling of the Court of Justice of the European Union: Potential Implications for Fundamental Rights and EU Competition Law* I. Background Defense counsel in European antitrust proceedings have long bemoaned the fact that “fundamental rights” did not effectively find their way (...)

The EU Court of Justice dismisses the appeal supported by pleas on the violation of fundamental rights in elevators cartel case (Schindler)
Mircea & Partners (Bucharest)
I. Background The Schindler Group is a leading supplier of elevators, escalators and related services. Schindler’s operations cover 140 countries worldwide and involve a large number of national subsidiaries, including Schindler Belgium, Schindler Luxembourg, Schindler Netherlands and Schindler (...)

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 US DoJ and FTC testify at Senate Subcommittee Antitrust Oversight Hearing
Wolters Kluwer (Riverwoods)
Federal Antitrust Agency Heads Testify at Senate Subcommittee Antitrust Oversight Hearing* FTC Chairwoman Edith Ramirez and William J. Baer, Assistant Attorney General in charge of the Department of Justice Antitrust Division, testified before the Senate Judiciary Committee’s antitrust (...)

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 Dutch Supreme Court confirms legal privilege for in-house lawyers
Van Bael & Bellis (Brussels)
On 15 March 2013, the Dutch Supreme Court (Hoge Raad der Nederlanden) confirmed the existence of a general legal privilege for in- house lawyers. The Supreme Court considered that the Akzo case law of the European Court of Justice (ECJ) is not applicable beyond EU competition law and (...)

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 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)
University of Bristol - Law School
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 (...)

The Dutch Trade and Industry Appeal Tribunal holds that former employees have the right to remain silent in antitrust investigations carried out by the Dutch NCA
Van Bael & Bellis (Brussels)
On 21 December 2012, the Dutch Trade and Industry Appeal Tribunal (College van Beroep voor het bedrijfsleven) held that former employees of companies subject to an antitrust investigation have the right to remain silent when being questioned by the national competition authority. In (...)

The Bucharest Court of Appeal confirms the restrictive interpretation of the legal professional privilege in the Romanian competition law
Mircea & Partners (Bucharest)
Romania is among the last countries in the European Union to have introduced the concept of the Legal Professional Privilege (“LLP”) in its national legislation. This took place in 2010 when the Romanian Competition Law (RCL) has been amended to a great extent and the relevant provision has been (...)

The Indian Ministry of Corporate Affairs proposes a significant change in respect of the search and seizure powers granted to the investigating office of Competition Commission
TT&A
The Ministry of Corporate Affairs, Government of India which is the authority responsible for the functioning of the Competition Commission of India (CCI) has proposed a bill in the Lower House of Parliament of India on 10 December 2012 to amend the Competition Act, 2002 (Act). This proposal (...)

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 EU General Court curtails EU Commission’s powers to dawn raid companies for suspected competition law infringements (Nexans)
Philippe & Partners (Brussels)
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Liège University - IEJE
I. The Parties Nexans SA and its wholly-owned subsidiary Nexans France SAS – are two French companies which carry out their activities in the electric cable sector. II. The Facts The EU Commission (hereinafter “the Commission”) received information via leniency applications that electric cable (...)

The EU General Court confirms that fact-finding measures conducted under article 20(4) of the Regulation No 1/2003 do not bring about a distinct change of the legal position of the applicant, thus may not be the subject of an action for annulment (Nexans)
Mircea & Partners (Bucharest)
I. Introduction The applicants in the present case seek the annulment of Commission decision of 9 January 2009 ordering them to submit to an inspection in accordance with article 20(4) of Regulation No 1/2003 as well as the way in which it was executed. In the context of an investigation the (...)

The EU Court of Justice establishes new rules of procedure
Jones Day (Brussels)
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European Commission
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Jones Day (Brussels)
The European Court of Justice ("ECJ") has adopted new rules of procedure, replacing previous rules that had remained largely untouched since their adoption in 1953. The goal of these changes is to speed up ECJ proceedings, but these new rules may also reduce transparency and undercut parties’ (...)

A NY District Court authorizes disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges (Air Cargo Shipping Services)
Jones Day (Washington)
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Jones Day (Cleveland)
The U.S. magistrate judge in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges has authorized disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation conducted earlier by the U.S. Department (...)

The President of The Hague District Court holds that the Dutch Competition Authority cannot engage in "fishing expeditions"
Van Bael & Bellis (Brussels)
On 5 October 2012, President of The Hague District Court ruled in interim proceedings that the Dutch Competition Authority (“NMa”) cannot order third parties to provide information incriminating undertakings against which the NMa has insufficient information to initiate competition law (...)

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 ECJ dismisses an appeal and rules that in-house lawyers should not be permitted to appear before EU courts (Polish Electronic Communications Office)
Canadian International Joint Commission
Introduction On 6 September 2012 the Court of Justice of the European Union (ECJ) upheld an earlier decision of the General Court (formerly the Court of First Instance) in the Prezes Urzedu Komunikacji Elektronicznej case that in-house lawyers cannot represent their client companies before EU (...)

The Osaka District Court orders the Japan Fair Trade Commission to submit documents in relation to a shareholder derivative suit (Sumitomo Electric)
Nishimura & Asahi (Tokyo)
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Nishimura & Asahi (Tokyo)
On July 15, 2012, the Osaka District Court ordered the Japan Fair Trade Commission (the “JFTC”) to submit (i) written statements of employees of Sumitomo Electric Industries (“Sumitomo Electric”) and (ii) Sumitomo Electric’s report to the JFTC in relation to the shareholder derivative suit against (...)

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 Competition and Consumer Appeals Tribunal rejects the national competition authority’s claim to be party in proceedings reviewing its decisions, but allows it a limited right to attend and participate in such proceedings
In terms of Article 13A of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ’MCA’), the Director General (Competition) (hereinafter referred to as ’Director’) applied to the Competition and Consumer Affairs Tribunal (hereinafter referred to as ’Tribunal’), following (...)

The US Northern District Court of California recognizes indirect purchasers’ standing in cases where component products have little independent utility (Flat Panel Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In re TFT-LCD (Flat Panel) Antitrust Litig., 2012 U.S. Dist. LEXIS 145935 (N.D. Cal. 2012) Even though many states have chosen to part company with federal antitrust laws by permitting antitrust standing for so-called "indirect purchasers" under state law — despite the holding of the Supreme (...)

The Portuguese Constitutional Court confirms position of Competition Authority regarding oral hearings
European Commission
Portugal: The Constitutional Court confirms Position of Portuguese Competition Authority regarding Oral Hearings* On 8 February 2012, the Constitutional Court issued a ruling whereby it concluded that it is not unconstitutional to interpret article 26(2) of the Portuguese Competition Act in (...)

An Italian administrative Court clarifies the boundaries of third parties’ right to access the file in antitrust matters (Alitalia)
Gatti Pavesi Bianchi
With its judgment of February 2, 2012, the Tribunale Amministrativo del Lazio (i.e. the lower Italian administrative Court which adjudicates appeals against decisions issued by the Autorità Garante della Concorrenza e del Mercato, «IAA«) clarified the boundaries of third parties’ right to access (...)

The Paris Commercial Court allows the production of documents that are necessary for the rights of defence (Outremer Telecom, Orange Caraïbe, France Télécom)
Background On 9 December 2009 the French Competition Authority fined Orange Caraïbe and France Telecom in the amount of EUR 63 million for having abused their dominant position on the market of mobile telephony or fixed telephony in French Caribbean. This decision was partially overturned from (...)

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 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 (Paris)
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 Dutch Trade and Industry Appeals Tribunal confirms that separation of functions must be applied within administrative authority (Fortis)
De Nederlandsche Bank (DNB)
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Smeets Van Empel advocaten (Amsterdam)
1. Facts and procedure Following an extensive investigation into fraud and anticompetitive practices in the Dutch construction sector, the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, hereinafter "NMa") imposed a fine on ETB Vos B.V. (hereinafter "ETB") for infringing (...)

The US Supreme Court reverses class action certification raising hurdles for antitrust collective redress cases (Wal-Mart Stores/Dukes)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
This article has been selected for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On June 20, 2011, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court handed down its decision (...)

The French Criminal Supreme Court takes side in favour of the admissibility of the appeal by the Rapporteur général of the Competition Authority in a case concerning emails seizure (Orange)
Linklaters (Paris)
House searches carried out by the French competition authority (“Autorité de la concurrence”), a shared prerogative since 2009 with the Ministry of Finance & Economy (“DGCCRF”), are in principle governed by the Code of Criminal procedure. Furthermore, it has been held by the Supreme Court in (...)

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 (...)

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 China’s Supreme Court issues rules on Private Actions under the Anti-Monopoly law
Linklaters (Beijing)
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Linklaters (Shanghai)
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Linklaters (London)
On 25 April 2011, the Supreme People’s Court of China (the “SPC”) published on its website a draft of the long-awaited Provisions by the Supreme People’s Court on the Issues Regarding the Application of Law in Handling Anti-monopoly Civil Litigation Cases (the “Provisions”) for public consultation. (...)

The Belgian Competition Council dismisses a claim from the Prosecutor concerning a coordinated price increase due to the non-respect of the rights of the defence (Ferrero)
Philippe & Partners (Brussels)
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1. The Parties The present procedure was launched at the initiative of the Competition Prosecutor who opened an office instruction after having detected serious indications of concerted practices in the food industry. The following companies are targeted: Ferrero SA (hereinafter: Ferrero), (...)

The Belgian Competition Authority finds breach of due process in confectionary cartel investigation (Ferrero)
Van Bael & Bellis (Brussels)
In a recently published decision of 7 April 2011, the Belgian Competition Council found that the rights of defence of companies, investigated for alleged coordinated price increases in the confectionary sector, had been infringed. In April 2008, the College of Competition Prosecutors opened an (...)

The UK Office of Fair Trading announces the trial of a new adjudicator role to resolve disputes on procedural issues to speed up investigations under the Competition Act 1998
European Commission
United Kingdom: Trialling of Procedural Adjudicator at the Office of Fair Trading (OFT)* Alongside its procedural guidance, the OFT also announced the trial of a new adjudicator role to resolve disputes on procedural issues, as part of a drive to speed up investigations under the Competition (...)

The Spanish Competition Commission fines a manufacturer of office supplies for obstructing an inspection carried out at its head office (Grafoplas)
European Commission - DG COMP
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Private Advising Group P.A.
On March 1, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined GRAFOPLAS DEL NOROESTE, S.A. (“GRAFOPLAS”) €161,600 for obstructing an inspection carried out at its head office. Background GRAFOPLAS is a prominent Spanish manufacturer of office supplies (...)

The Polish Competition Authority proves again that obstruction of an inspection does not pay off - record-breaking penalty - € 33 million for obstruction of the inspection (Polkomtel)
Greenberg Traurig Grzesiak (Warsaw)
,
Hogan Lovells (Warsaw)
An inspection of Polkomtel S.A’s («Polkomtel» or the «Company») premises took place on 2 December 2009 as part of a number of simulataneous dawn raids carried out by the President of the Office of Competition and Consumer Protection (the «OCCP») as part of its investigation into mobile television (...)

The Polish Competition Authority proves again that obstruction of an inspection does not pay off - record-breaking penalty - € 33 million for obstruction of the inspection (Polkomtel)
Greenberg Traurig Grzesiak (Warsaw)
,
Hogan Lovells (Warsaw)
An inspection of Polkomtel S.A’s («Polkomtel» or the «Company») premises took place on 2 December 2009 as part of a number of simulataneous dawn raids carried out by the President of the Office of Competition and Consumer Protection (the «OCCP») as part of its investigation into mobile television (...)

The Spanish Competition Commission fines an association for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector (Asociación Nacional de Perfumería y Cosmética - STANPA)
European Commission - DG COMP
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Perez Llorca
On February 7, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined Asociación Nacional de Perfumería y Cosmética (“STANPA”) €901,518.16 for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector in (...)

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 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 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 Paris Court of Appeal reviews the legality of searches and seizures of electronic documents during dawn raids
Van Bael & Bellis (Brussels)
Called upon to review the practice of untargeted searches and seizures of digital data by the investigators of the French Competition Authority, a judge delegated by the President of the Paris Court of Appeal (the "President’s delegate") recently stayed proceedings and requested an expert (...)

The European Court of Justice holds that in-house lawyers are not protected by legal professional privilege in antitrust investigations (Akzo)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Dentons (Brussels)
On September 14, 2010, the Court of Justice (the Court) issued its judgment in Akzo v. Commission (Case C-550/07 P, hereinafter the Judgment) dismissing an appeal brought by Akzo Nobel Chemicals Ltd. (Akzo) against a judgment of the Court of First instance (now the General Court) of September (...)

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 UK Court of Appeal’s rejects claims of apparent bias in the supply of airport services market investigation (BAA, Ryanair)
Linklaters (Hong Kong)
The UK Court of Appeal recently rejected claims made by BAA that the Competition Commission’s Report into the common ownership of the UK’s main airports was tainted by apparent bias. One member of the Competition Commission’s inquiry group had indirect links to a potential bidder for one of the (...)

The EU Court of Justice confirms that legal professional privilege under EU law does not extend to communications with in-house lawyers (AKZO)
Linklaters (London)
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A&L Goodbody (Dublin)
,
Linklaters (Brussels)
Background In February 2003, the Commission, with the assistance of the UK’s Office of Fair Trading, conducted a dawn raid at the UK premises of Akzo Nobel and Akcros Chemicals on suspicion of possible anti-competitive practices. During the raid, a dispute arose between the investigation team (...)

The EU Court of Justice confirms that communications with an in-house lawyer are not legally privileged (AKZO)
Stibbe (Amsterdam)
,
Outer Temple Chambers
1. Following approximately seven years of extended litigation, discussed in previous issues of Concurrences the last phase of the Akzo litigation relating to the personal scope of legal professional privilege («LPP») has finally come to an end with the European Court of Justice’s («ECJ») seminal (...)

A US District Court admits the confidentiality of document emanating from the European Commission’s investigation (Visa, MasterCard)
European Commission
European Commission: Recent Developments on Discovery following Amicus Curiae On 27 August 2010, the US District Court of the Eastern District of New York, Judge John Gleeson, on appeal issued an order whereby access by the plaintiffs to a Statement of Objections and to a transcript of an Oral (...)

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 new guidelines on dawn raids
Van Bael & Bellis (Brussels)
On 16 August 2010, the Dutch Competition Authority (the “NMa”) published new guidelines on dawn raids. These guidelines were adopted after a consultation round among stakeholders held at the beginning of 2010. These guidelines amend and replace the NMa‘s former guidelines on dawn raids of December (...)

The Austrian Supreme Court holds that records from competition proceedings cannot be withheld from the public prosecutor in a following criminal proceeding on the grounds of protecting trade secrets pursuant to the anti-cartel Act (Elevator cartel case)
Salzburg University
Background: Following on from the elevator cartel case («Aufzugskartell»), in which the involved undertakings were fined 25 million Euros for breaching Art 81 ECT (Art 101 TFEU), the public prosecutor («Staatsanwaltschaft Wien») brought proceedings against a number of involved persons pursuant to (...)

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 EU General Court imposes a high burden on the European Commission to refuse access to its confidential records (Editions Odile Jacob)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
On June 9, 2010, the EU’s General Court (Court) issued its judgment on an appeal by Editions Odile Jacob (EOJ) against a decision by the European Commission (the Commission) refusing to disclose certain documents relating to the Commission’s review under the EC Merger Regulation of the (...)

The Paris Court of Appeals applies the EU "harmless error rule" in a commitment procedure where a party has been denied full access to the French Competition Authority’s file (Canal 9)
Jones Day (Paris)
The harmless error rule and the French commitment procedure* Paris Court of appeals, 1 June 2010, Canal 9 Merely one month before the ECJ delivered its very expected judgment in the Alrosa case, a ruling of the Paris Court of Appeals confirmed that the exercise of the rights of the defense in (...)

The US Supreme Court shows to be driven by concerns with burdens of US litigation process according to recent antitrust decisions (Stolt-Nielsen/AnimalFeeds)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)

The Japanese Government proposes to reform the Fair Trade Commission’s hearing procedure for antitrust violations
Winston & Strawn (New York)
,
Jones Day (Tokyo)
,
Jones Day (Tokyo)
The Japanese government has proposed significant changes to the procedures for challenging orders issued for antitrust violations by the Japanese Fair Trade Commission (JFTC). The Cabinet submitted a bill of amendments to the Antimonopoly Act (AMA) to the House of Representatives (Shugiin) on (...)

The Luxembourg Administrative Court dismisses the appeal of the state of Luxembourg and confirms the annulment of the decisions imposing interim measures against national incumbent telecom operator (P&T)
FratiniVergano
1. Facts Several telecommunications companies introduced a complaint for abuse of dominant position against “Entreprise des Postes et Télécommunications” (hereafter “P&T”) to the Luxembourg Competition Inspectorate. The latter requested the President of the Luxembourg Competition Council (...)

The Luxembourg Administrative Court dismisses the appeal of the state of Luxembourg and confirms the annulment of the decisions imposing interim measures against national incumbent telecom operator (P&T)
FratiniVergano
1. Facts Several telecommunications companies introduced a complaint for abuse of dominant position against “Entreprise des Postes et Télécommunications” (hereafter “P&T”) to the Luxembourg Competition Inspectorate. The latter requested the President of the Luxembourg Competition Council (...)

The Luxembourg Administrative Court dismisses the appeal of the state of Luxembourg and confirms the annulment of the decisions imposing interim measures against national incumbent telecom operator (P&T)
FratiniVergano
1. Facts Several telecommunications companies introduced a complaint for abuse of dominant position against “Entreprise des Postes et Télécommunications” (hereafter “P&T”) to the Luxembourg Competition Inspectorate. The latter requested the President of the Luxembourg Competition Council (...)

The Luxembourg Administrative Court dismisses the appeal of the state of Luxembourg and confirms the annulment of the decisions imposing interim measures against national incumbent telecom operator (P&T)
FratiniVergano
1. Facts Several telecommunications companies introduced a complaint for abuse of dominant position against “Entreprise des Postes et Télécommunications” (hereafter “P&T”) to the Luxembourg Competition Inspectorate. The latter requested the President of the Luxembourg Competition Council (...)

The European Commission publishes documents on Best Practices in competition law enforcement and on the role of the Hearing Officers
European Commission
European Commission: Best practices improve Transparency and Predictability of Proceedings In order to further enhance the transparency and the predictability of Commission antitrust proceedings, detailed explanations concerning how European Commission antitrust procedures work in practice (...)

A Slovak regional Court confirms strict criteria that courts have on reasoning of decisions of the Antimonopoly Office (SLOVNAFT)
Kinstellar (Prague)
,
Kinstellar (Bratislava)
Factual background Regional Court Bratislava (“Court“) overruled, in its judgment dated 15 December 2009, two decisions of the Slovak Antimonopoly Office (the “AMO”), namely the first instance decision No. 2006/DZ/2/1/140 dated 22 December 2006 and the appellate decision No. 2007/DZ/R/2/102 dated (...)

The Spanish Supreme Court passes an important judgment concerning the violation of the right to rely on all relevant evidence in an antitrust case (SOS Cuetara)
European Court of Justice (Luxembourg)
,
Garrigues
Introduction On 10 December 2009, the Spanish Supreme Court (Tribunal Supremo) passed an important judgment concerning the limits of the notion of due process under Spanish law. In particular, the Supreme Court shed some light on the consequences of the violation of the right to rely on all (...)

The Spanish Supreme Court’s ruling on the breach of the rights of defence of a company subject to a competition investigation represents a victory for due process (SOS Cuetara)
Airbus Defence and Space (Toulouse)
This judgment marks the end of a case which began in April 2005, when the Spanish Competition Authority (ANC) opened an investigation into the Spanish olive oil market following a complaint from a consumer protection association. A number of food distributors and a major olive oil producer were (...)

The Hungarian Supreme Court defines the extent of client-attorney privilege in competition proceedings (BH 2009.364)
Oppenheim
,
Oppenheim - Budapest
In December 2009 the Supreme Court published a significant individual decision (under No. BH 2009.364), in which it confirmed that communication between client and attorney, even if occurred before the initiation of the respective competition proceedings by the HCO, may still be subject to (...)

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)
,
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 Czech regional Court in Brno sets a deadline for the decision of the NCA due to its inaction (Sokolovská)
Kinstellar (Prague)
On 3 November 2009, the Regional Court in Brno (the “Court”) issued a judgment in which it ordered the Czech Competition Office (the “Office”) to issue a final decision in its investigation regarding the alleged breach of competition rules by Sokolovská uhelná, právní nástupce, a.s. (“Sokolovská”) (...)

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 Spanish National Court finds that the ANC has exceeded its powers in taking copies of company employees hard drives and therefore breached the principle of domicile inviolability, thus putting at question the NCA’s powers of inspection (Spanish Cosmetic Toiletry and Perfumery Association - Stanpa)
Airbus Defence and Space (Toulouse)
This judgment assessed the legality of the dawn raids carried out by the Spanish Competition Commission (CNC) in the professional hairdressing sector in 2008 in relation to alleged price-fixing and other anti-competitive practices. The appeal was launched before the National Court by the (...)

The UK High Court criticizes the Office of Fair Trading for violating the principles of equal treatment and fairness in a "fast-track” settlement procedure (Crest Nicholson/OFT)
Ernst & Young
The Office of Fair Trading (OFT) was found to have violated the principle of equal treatment and procedural fairness in its construction cartel investigation when it disregarded that Crest Nicholson, a former parent company of a construction firm accused of bid rigging, was unable to accept in (...)

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 Russian Constitutional Court confirms the constitutionality of certain provision of the Competition Law regulating the powers of the national competition authority (Gazenergoset and Nizhnekamskneftkhim)
University of Technology (Tallinn)
In 2006 two companies, applicants in the present case, OAO “Gazenergoset” and OAO “Nizhnekamskneftkhim” have been found in violation of the competition law. Russian Competition Authority (Федеральная Антимонопольная Служба) (FAS) found that undertakings concerned participated in the concerted practices and (...)

The European Court of First Instance clarifies Commission’s duty of care and third parties’ right to be heard in merger control proceedings (NVV)
Van Bael & Bellis (Brussels)
In a judgment of 7 May 2009, the Court of First Instance dismissed an appeal against the Commission’s decision unconditionally clearing the acquisition by Sovion of Hendrix Meat Group. The appellants (three interested third parties in the Commission’s Sovion/HMG proceedings) argued before the (...)

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
,
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 ECJ Advocate General proposes to annul CFI ruling on rights of defence in carbonless paper cartel appeal (Papierfabrik August Koehler)
Van Bael & Bellis (Brussels)
On 2 April 2009, Advocate General Bot issued his opinion in the appeal against the judgment of the CFI in the carbonless paper cartel case. This judgment upheld a Commission decision of December 2001, which found that eleven undertakings had infringed Article 81 EC by participating in a series (...)

The Romanian Constitutional Court confirms the constitutionality of provisions relating to the investigative and decision-making powers of the NCA (Astral Impex, Gabi’s, BDM)
University of Technology (Tallinn)
Summary Addressing the challenge of constitutionality of certain provisions of the Competition Law regulating the investigative and decision-making powers of the Competition Council, the Romanian Constitutional Court adhered to its preceding jurisprudence and dismissed the applicants’ (...)

The English High Court rules on the right of the Office of Fair Trading to close a competition act investigation due to resource constraints (Cityhook - Cornwall)
Pinsent Masons (London)
Background Cityhook Limited ("Cityhook") was founded in 1999 by three British engineers to exploit a patented technology invented by one of its founders. The patented technology consisted of a foreshore ducting system for drilling a tunnel under the foreshore and sea-bed to enable the (...)

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)
,
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 US FTC issues interim final rules for FTC administrative litigation
Jones Day (Washington)
,
Jones Day
On December 23, the Federal Trade Commission published a set of interim final rules governing trials held before the Commission. The interim final rules incorporate most, but not all, of the rules changes first proposed by the FTC in October 2008. The interim final rules are likely to have a (...)

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 Swiss Supreme Court rules on legal privilege (Panalpina case)
Comité International de la Croix-Rouge
On October 28, 2008, the Swiss Supreme Court finally dismissed the claim from several companies which had been subject to dawn raids and opposed the use by the Swiss Competition Commission (“Comco”) in a cartel investigation of certain internal documents issued for or by in-house counsel on the (...)

The Spanish Competition Authority launches dawn-raids giving rise to controversy over defense rights (Colgate Palmolive España, L’Oreal, Stanpa)
European Court of Justice (Luxembourg)
,
Garrigues
The entry into force of the new Spanish leniency program has significantly stepped up cartel investigations undertaken by the Spanish Competition Authority (hereinafter “CNC”). Under the new regulatory framework enacted by the Spanish Competition Act in July 2007, the CNC has initiated 48 (...)

The European Court of First Instance rejects damages claim for losses suffered as a result of the annulment of the Commission’s decision to prohibit a merger (MyTravel)
Van Bael & Bellis (Brussels)
On 9 September 2008, the Court of First Instance ("CFI") dismissed in its entirety the damages action brought by MyTravel (formerly Airtours) for losses resulting from its inability to complete its bid for First Choice as a result of the Commission’s prohibition of the Airtours/First (...)

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)
,
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 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 (...)

Le Conseil de la concurrence applique pour la première fois l’arrêt Akzo sur le legal privilege (Défibrillateurs cardiaques implantables)
Ashurst
Article published in French in Concurrences, N° 1-2008, pp. 176-178. Il était reproché à cinq sociétés de s’être entendues afin de faire échouer l’achat groupé de défibrillateurs par 17 Centres Hospitaliers Universitaires (CHU). Plusieurs moyens de procédure avaient été soulevés par les parties dont la (...)

Le TPICE fait un (tout petit) pas en avant en matière de legal privilege (Akzo)
Ashurst
This article in French was first published in Concurrences Review, N° 4-2007, pp. 126-128 C’est un arrêt très attendu et très motivé, qui vient d’être rendu par le Tribunal de première instance (ci-après “TPI”) en matière de confidentialité des communications entre avocats et clients (encore appelé “legal (...)

The US Supreme Court shows to be driven by concerns with burdens of US litigation process according to recent antitrust decisions (Bell Atlantic / Twombly)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)

The Lisbon Court of Commerce quashes decisions fining pharmaceutical companies on procedural grounds (Abbot, Bayer, Johnson & Johnson, Menarini and Roche)
PLMJ (Lisboa)
,
PLMJ (Lisboa)
In its judgement of 26 March 2007 the Lisbon Court of Commerce (the “Court”) quashed on procedural grounds two decisions adopted by the Portuguese Competition Authority (the “PCA”) fining five pharmaceutical companies (Abbot, Bayer, Johnson & Johnson, Menarini and Roche). The PCA had found that (...)

The Spanish Competition Authority enhances the procedural rights of the defendants in national antitrust procedures (Banco Santander/Cheques comida)
European Court of Justice (Luxembourg)
,
Garrigues
Competition Authority (Tribunal de Defensa de la Competencia), 15 March 2007, Banco Santander/Cheques comida, Case r 700/2006 v On March 15th, 2007 the Tribunal de Defensa de la Competencia (TDC, highest branch of the Spanish antitrust authority) has concluded that defendants in national (...)

The Czech Office for the Protection of Competition released a controversial draft dealing with the access to documents containing business secrets
Government of the Czech Republic
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European Court of Justice (Luxembourg)
In August 2006, the Czech Office for the Protection of Competition presented to the interested public a draft amendment to the Czech Act on the Protection of Competition. Apart from other less important issues, the draft provides specific rules on the treatment of documents obtained by the (...)

The Czech Competition Authority annuls in appeal its earlier decision invalidating the vehicle distribution agreements concluded between a car manufacturer representative and authorised dealers due to breach of defence rights (AuTec/BMW)
University Paris I Panthéon-Sorbonne
By the decision of 30 June 2006 rendered on appeal the President of the Office for the Protection of Competition (hereafter the “Office”) set aside the Office decision invalidating the vehicle distribution’s contracts and servicing agreements concluded between AuTec Group, a.s., the representative (...)

The Paris Court of appeal set the boundaries of the power of the Competition Council to refer a case to a criminal Court (STAL/Ernée Viandes)
WTG Events
French Competition Council (Conseil de la concurrence), 3 August 2004, Decision n° 04-D-39, relating to practices implemented in the butchering and the commercialisation of animals for human consumption sector (relative à des pratiques mises en œuvre dans les secteurs de l’abattage et de la (...)

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 (...)

"Modernization" of the Hungarian Competition Act
bpv Jadi Nemeth Attorneys
Act LVII of 1996 on the prohibition of unfair and restrictive market practices ( Hungarian Competition Act, Consolidated version effective as of 1 November 2005 Note In 2005 important provisions of the Hungarian Competition Act (hereinafter “HCA”) were amended . Also, new rules about the (...)

The Latvian Supreme Court confirms the NCA decision fining loyalty discounts practices in the food retailer sector (Latfood)
Best Lawyers
Latfood, previously being in a dominant position, loses a case The 22 March 2005 decision of the Department of Administrative Cases of the Supreme Court Senate closed the proceedings in respect of the 14 November 2001 decision of the Competition Council of the Republic of Latvia on imposing a (...)

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)
,
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 (...)

The Netherlands Competition Authority imposes fines for refusal to allow the interview of certain employees (Heijmans Beton- en Waterbouw)
Netherlands Authority for Consumers & Markets (The Hague)
NMa Fines Heijmans for Refusal to Co-operate* The Netherlands Competition Authority (NMa) has imposed a fine of three times EUR 4,500 (four-thousand-five-hundred euros) on Heijmans Beton- en Waterbouw for its refusal to allow NMa to interview certain of its employees. This is the maximum fine (...)

The Spanish Competition Authority defines the scope of protection of legal privilege (Pepsi-Cola/Coca-Cola)
Martinez Lage, Allendesalazar & Brokelmann (Madrid)
The Tribunal de Defensa de la Competencia (TDC) issued on 22 July 2002 a decision in which it established that documents created by companies in the context of their defence in competition proceedings before the European Commission did not have to be delivered to the Servicio de Defensa de la (...)

The European Commission adopts a new regulation on the hearing of parties in certain proceedings under art. 85 and 86 of the EC Treaty (Regulation (EC) n°2842/1998)
European Commission - DG COMP
,
European Commission - DG COMP
"New procedures for anti-trust cases: hearings, and notification of transport cases"* Background One of the underlying objectives of the current legislative activities of the Commission is to modernise, simplify and make more user-friendly the procedures under which competition cases are (...)

The European Court of First Instance confirms the Commission’s decision requiring French bank to supply information concerning the fee charged when processing foreign checks (Société Générale)
European Commission - DG COMP
"Judgment Of The Court Of First Instance Of 8 March 1995 (T-34/93) Société Générale - v- Commission"* In this case the applicant, Société générale («SG«), sought the annulment of Commission decision C(93)746 of 1 April 1993 which, pursuant to Article 11(5) of Regulation N° 17, required SG to supply (...)

Regulations

The EU Parliament and Council issue a new directive on public concessions which brings about a significant risk of duplication of the relevant rules
University of Bristol - Law School
The new Directive on Concessions is basically unnecessary, but creates red tape, duplication & legal uncertainty (Dir 2014/23)* I have been working on the preparation of a commentary to the first part of the new Directive 2014/23 on the award of concession contracts [OJ L 94, 28/03/2014, (...)

The Netherlands ACM allows blocking certain internet services on board of trains of Dutch railway company as an exception from the net neutrality rule (T-Mobile)
Netherlands Authority for Consumers & Markets (The Hague)
Telecom company T-Mobile is allowed to restrict free internet access on board trains* The Netherlands Authority for Consumer and Markets (ACM) has concluded that Dutch telecom company T-Mobile is allowed to block certain services such as YouTube and Spotify on the free Wi-Fi-network on board (...)

The Belgian Competition Authority dismisses a claim from the College of Prosecutors concerning geographical allocation agreements between laboratories active in BSE testing, slaughterhouses and their professional organization (BSE laboratories)
Altius (Brussels)
I. The Facts In the 1990s Great Britain was affected by the outbreak of BSE (“bovine spongiform encephalopatie"), causing the European Union to take immediate action. Member States were obliged to comply with the imposed obligations by the European Union and to carry out tests urgently. The (...)

Public sector

Advocate General Yves Bot proposes to reduce the safe harbour for directly awarded public contracts subjected to prior transparency (Fastweb)
University of Bristol - Law School
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 EU Parliament makes available the provisional text of the new public procurement directives and consolidates the principle of competition therewith
University of Bristol - Law School
Principle of competition finally consolidated into public procurement directives* The provisional text of the new public procurement Directives has been made available by the European Parliament. In the final version of 15 of January, the principle of competition is finally consolidated in (...)

The German Federal Court of Justice issues decision of principle on the award of concessions for electricity and gas networks
German Competition Authority (Bonn)
Federal Court of Justice issues decision of principle on the award of concessions for electricity and gas networks* Bonn, 18 December 2013: The Bundeskartellamt welcomes the landmark decisions issued yesterday by the Federal Court of Justice on the award of rights of way for electricity and (...)

The Swedish Competition Authority presents a report containing a wide range of policy measures for the improvement and strengthening of competition
Swedish Competition Authority (Stockholm)
Level playing field for the public and private sectors* Obstacles to well-functioning competition must be removed. This is the overarching message in a report recently submitted to the Government by the Swedish Competition Authority. One suggestion is to separately account for public sales (...)

The Swedish Competition Authority finds a breach of the proportionality principle in relation to the exclusion of suppliers who use more qualified nursing personnel than the minimum imposed in the tender specifications (Systrarna Odh)
Mircea & Partners (Bucharest)
Best country to grow old The UN ranked Sweden in a recent study as best country in the world for treatment of elderly. The Swedish public procurement markets for care services have been opened to competition via the system of public procurement and more recently via a system based on freedom (...)

The Swedish Competition Authority examines in its pilot study the adoption by three municipalities of the free choice system in the home care sector
Swedish Competition Authority (Stockholm)
A fair system of choice requires transparent municipal accounting* There are many reasons why municipalities with systems of choice must employ open and clear financial follow-ups for their own operations subject to competition. This is emphasized in a pilot study, where the Swedish (...)

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)
University of Bristol - Law School
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 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)
University of Bristol - Law School
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 General Court establishes a demanding standard for the duty to give reasons in procurement cases (Sviluppo Globale GEIE)
University of Bristol - Law School
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)
University of Bristol - Law School
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 Supreme Court establishes the liability of a contracting authority to pay damages for the positive contractual interest to a tenderer who would have won the tender procedure if the procurement law had been correctly applied (Ishavet)
Mircea & Partners (Bucharest)
I. Introduction A tenderer who otherwise would have won the procurement procedure, if the procurement law had been correctly applied by the contracting authority shall be entitled to receive compensation for the positive contractual interest. Moreover the liability to pay damages does not (...)

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