Rights of Defence

Anticompetitive practices

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 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 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 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 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 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 (...)

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 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 (...)

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 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 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 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 (...)

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 Lisbon Commerce Court confirms decision against shipping agents association for price-fixing but reduces the amount of fines (AGEPOR)
University of Lisbon
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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 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 holds that a duty to procure specific documents might be imposed on the Commission at the request of an undertaking which is the subject to an antitrust investigation under certain circumstances (Intel)
Mircea & Partners (Bucharest)
Access to documents not to be found in the Commission’s possession I. Background The Intel Cases have occupied the international arena of antitrust litigation for the past ten years and a definitive resolution has not been reached yet. The administrative proceeding initiated by the Commission (...)

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

The 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 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 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 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 (...)

Mergers

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 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 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)
European Procurement Law Group
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 (...)

Procedures

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

The 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)
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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 (...)

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 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)
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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)
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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)
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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)
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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)
European Procurement Law Group
It’s for the GC to decide, but it’s not ok: CJEU rules on ’excessive duration’ of competition law litigation (C-40/12 P)* In a batch of impatiently expected Judgments of 26 November 2012, the CJEU has ruled on the procedural and substantial rules applicable to a claim that (competition law) (...)

The 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 (...)

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)
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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 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 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 (...)

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 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 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 (...)

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 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 (...)

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 Portuguese Constitutional Court confirms position of Competition Authority regarding oral hearings
European Commission (Brussels)
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 (...)

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

The European Commission reforms antitrust procedures and expands role of hearing officer
European Commission (Brussels)
European Commission reforms Antitrust Procedures and expands Role of Hearing Officer* On 17 October 2011, the European Commission adopted a package of measures aimed at increasing interaction with parties in antitrust proceedings and strengthening the mechanisms for safeguarding parties’ (...)

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

The EU Court of Justice confirms that communications with an in-house lawyer are not legally privileged (AKZO)
Stibbe (Amsterdam)
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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 (Brussels)
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 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 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 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 (Brussels)
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 (...)

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)
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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 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
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Potamitisvekris
On 29 April 2009, the Paris Court of Appeal dismissed for the second time the appeal of Philips and Sony against a decision of the Competition Council in 2005 condemning an agreement between the two companies and their respective distributors. In so doing, the Court of Appeal expressed its (...)

The 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)
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Freshfields Bruckhaus Deringer (Amsterdam)
Background On 19 January 2009, the Dutch Trade and Industry Appeals Tribunal (the "CBb") ruled on two joint cases in which both a number of producer organisations and the Netherlands Competition Authority (the "NMa") had appealed decisions of the District Court Rotterdam (Rechtbank Rotterdam). (...)

The 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)
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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 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 (...)

The Spanish Competition Authority enhances the procedural rights of the defendants in national antitrust procedures (Banco Santander/Cheques comida)
European Court of Justice (Luxembourg)
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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 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 Panthéon-Sorbonne (Paris)
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 (...)

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)
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PRK Partners (Prague)
This contribution provides a summary of the Czech Competition Office first-instance and appellate decisions addressing the limits to the right to privacy in the context of the Office’s investigation conducted in the business premises of an undertaking suspected of having infringed competition (...)

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 (Brussels)
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European Commission - DG COMP (Brussels)
"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 (...)

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

The EU Parliament makes available the provisional text of the new public procurement directives and consolidates the principle of competition therewith
European Procurement Law Group
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 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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