Clifford Chance

Review

Madani Bah, David Tayar Oligopolistic markets: The Court of Justice of the European Union overturns the judgment of the General Court annulling the Commission’s decision to prohibit a merger in the telecoms sector, in a very severe ruling that sets out the standard of proof that the Commission must meet when prohibiting a merger (CK Telecoms UK Investment)

13 July 2023 102

Context elements The proposed transaction would have reduced the number of operators in the UK mobile telephony retail market from four to three. It would have created the largest mobile operator in the UK, but would not have created or strengthened a dominant position (the combined entity (...)

David Tayar, Raphaël Wettasinghe Article 22: The French Supreme Court confirms its lack of jurisdiction to rule on the legality of the request for examination of a transaction below the thresholds sent by the French Competition Authority to the European Commission (Illumina / Grail)

10 February 2023 183

By a decision of February 10, 2023, the Conseil d’Etat rejected the request for annulment of the request for referral of the examination of the acquisition of Grail by Illumina addressed by the French Competition Authority [hereafter the "Authority"] to the European Commission [hereafter the (...)

Ashwin van Rooijen The Software Interface Between Copyright and Competition Law

September 2010 55

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Chris Goodwill, Alexandra Kamerling Restrictive Covenants under Common and Competition Law (ed.6)

December 2010 55

David Tayar, Clara Selignan Incompatibility: The General Court of the European Union confirms the European Commission’s decision prohibiting the proposed merger between two manufacturers and suppliers of flat carbon steel and magnetic steel products (Thyssenkrupp)

22 June 2022 384

By a judgment rendered on June 22, 2022 (judgment Thyssenkrupp AG. v. European Commission, aff. T-584/19), the General Court of the European Union [hereinafter "the General Court"] confirmed the decision of the European Commission [hereinafter "the Commission"] prohibiting the proposed merger (...)

Emily Xueref-Poviac Recent developments in the French FDI screening regime

February 2022 1292

In recent years, the world has seen a heightened level of scrutiny applied to foreign investments in the name of national security and France has been no exception to the trend. This article discusses notable recent amendments to the French foreign investment screening regime, including the (...)

David Tayar, Victoria Vickers Damages: The General Court of the European Union dismisses the actions for compensation brought by two undertakings for damage allegedly suffered as a result of the illegality of a decision prohibiting a merger (UPS / TNT Express)

23 February 2022 231

On January 30, 2013, the European Commission [hereinafter the "Commission"] had declared incompatible with the internal market a notified merger between United Parcel Service, Inc. [hereinafter "UPS "] and TNT Express NV [hereinafter "TNT"] (case COMP/M.6570 - UPS/TNT Express). According to (...)

Andreas Mundt, Thomas Vinje Andreas Mundt : Giving back to digital consumers

February 2022 1508

Interview conducted by Thomas Vinje, Partner, Co-Chair, Global Antitrust Group, Clifford Chance, Brussels. You have been president of the Bundeskartellamt since 2009 and worked in competition law for several years before that. In recent years, we have seen a few companies gain such (...)

David Tayar, Victoria Vickers Sole control: The European Commission clears the merger of two French incumbents in the water and waste management sectors subject to commitments (Veolia, Suez)

14 December 2021 177

Following the announcement by Veolia Environnement S.A.[hereinafter "Veolia"], on August 30, 2020, of its intention to acquire sole control of Suez S.A. [hereinafter "Suez"], the European Commission [hereinafter the "Commission"] examined whether this proposed acquisition raised competition (...)

David Tayar, Jalil El Khanchoufi Gun jumping: The General Court of the European Union confirms the European Commission’s decision imposing fines on a telecommunications company for implementing a merger before its notification and clearance (Altice / PT Portugal)

22 September 2021 295

In March 2016, the European Commission [the "Commission"] had opened an investigation into whether Altice Europe NV ["Altice"] had breached the prior notification and standstill obligations under the EU Merger Control Regulation [the "Regulation"] in connection with its acquisition of sole (...)

David Tayar, Éléonore Lejeune Scope and implications of the standstill obligation in European merger control

September 2021 1738

This article intends to illustrate the multiple issues raised by Article 7 of Regulation No. 139/2004, and in particular the scope of the standstill obligation resulting from Article 7(1) and the derogation provided by Article 7(2). In the context of the increasingly stringent approach by (...)

David Tayar, Emily Xueref-Poviac, Éléonore Lejeune Best practices: The European Commission forms a Multilateral Working Group with leading competition authorities to exchange best practices on pharmaceutical mergers

16 March 2021 376

In a press release dated 16 March 2021, the European Commission ["Commission"] announced the establishment, together with several other competition authorities, of a multilateral working group to analyse the effects of mergers in the pharmaceutical sector. In addition to the Commission’s (...)

David Tayar, Emily Xueref-Poviac, Éléonore Lejeune Clearance: The General Court of the European Union confirms the decision of the European Commission declaring the acquisition of sole control over a Dutch telecommunications operator compatible with the internal market (KPN)

27 January 2021 247

By judgment of 27 January 2021 ( KPN BV. v. European Commission, Case T-691/18), the General Court of the European Union ["General Court"] upheld the decision of the European Commission ["Commission"] authorising the acquisition of sole control of Ziggo N.V. ["Ziggo"] by Liberty Global Plc (...)

David Tayar, Emily Xueref-Poviac Behavioural remedies: The French Competition Authority grants a conditional clearance for the acquisition of a French public bank dedicated to development by the Caisse des dépôts et consignations (Société de financement local / Caisse des dépôts et consignations)

21 September 2020 236

On September 18, 2020, the French Competition Authority (the "Authority") conditionally authorized the acquisition of Société de financement local ("SFIL") by Caisse des dépôts et consignations ("CDC"). CDC, which until then held 20% of SFIL’s capital, thus acquired almost all of the capital (...)

David Tayar, Emily Xueref-Poviac Referral: The European Commission declares being able to review sensitive mergers below national thresholds

11 September 2020 277

On the occasion of the 24th Competition Conference of theInternational Bar Association on 11 September 2020, the European Commission (the "Commission") through its Commissioner for Competition Policy, Margrethe Vestager, stated that it will soon be possible to review at European level mergers (...)

Susan Hinchliffe, Katrin Schallenberg Susan Hinchliffe (General Electric): An in-house perspective on recent competition law developments

September 2020 588

Interview conducted by Katrin Schallenberg, Partner, Clifford Chance, Paris. Introduction Sue, you went from being a partner in a prestigious US law firm to taking up a senior in-house role as lead antitrust counsel Europe and ROW at one of the largest companies in the world, General (...)

David Tayar, Emily Xueref-Poviac Competition policy: The French Competition Authority publishes its contribution to the debate on competition policy and the challenges raised by the digital economy

19 February 2020 297

In recent months, the competition authorities’ reflections on the issues raised by the digital economy have been particularly nourished at various levels. The issues raised by the digital economy and the role that competition law must play in this respect have been addressed at the national (...)

David Tayar, Emily Xueref-Poviac, Ana Hergouth Commitments: The French Competition Authority clears, subject to conditions, the creation of an video platform on subscription by the three main French television broadcasters (Salto)

12 August 2019 451

The Competition Authority (the Authority) adopted on 12 August 2019 a decision authorising, subject to commitments, the creation of the Salto platform, a full-function joint venture, by France Télévision, TF1 and Métropole Télévision (M6) (the Parent Companies). The Authority has thus given (...)

David Tayar, Emily Xueref-Poviac, Filip Salamitov Joint control: The French Competition Authority clears a merger in the automobile sector and reviews, at this occasion, its method for analysing mergers in order to adapt it to developments in that sector (Emil Frey Motors France, Fiber / Bernard Participations)

12 March 2019 476

On 12 March 2019 the French Competition Authority (the Authority) adopted Decision 19-DCC-42 authorising the acquisition of joint control of Bernard Participations by Emil Fray Motors France and Bernard Participations. This operation, initially notified to the Commission (’Commission’) and (...)

David Tayar, Emmanuel Combe, Pierre Cahuc Competition and employment ( Nasse Seminar - Paris, 19th April 2013)

September 2013 154

During the Nasse Seminar organized the 19th of April of 2013, Pierre Cahuc and David Tayar talked about competition and employment. The seminar was animed by Emmanuel Combe, vice president of the Competition authority. Created at the end of the 1980s within the Forecasting Department, the (...)

Riccardo Falconi, David Tayar, Katrin Schallenberg Riccardo Falconi (Uber): Has digital economy disrupted competition law?

September 2018 1089

Interview conducted by Katrin Schallenberg, Partner, Clifford Chance and David Tayar, Partner, Clifford Chance. Digital actors and platforms have been disrupting markets by bringing together innovation and scalability to unprecedented levels and by unlocking efficiencies in various sectors. (...)

David Tayar, Emily Xueref-Poviac Commitments: The French Competition Authority fines for the first time an undertaking for the violation of structural commitments taken by an undertaking within the framework of a merger (Fnac / Darty)

27 July 2018 377

Bolstered by the Conseil d’État’s rejection of Fnac-Darty’s appeals against the decisions of the Chairman of the French Competition Authority on 26 July 2018, the Authority sanctioned this economic operator the next day in a plenary session, in the amount of 20 million euros for failure to (...)

David Tayar, Emily Xueref-Poviac Commitments: The French Administrative Supreme Court rejects the appeal against decisions of the President of the French Competition Authority regarding conditions in which commitments are executed (Fnac / Darty)

26 July 2018 294

On 27 July 2016, after an in-depth analysis, the French Competition Authority authorised the acquisition of Darty by the Fnac group (Competition AuthorityDecision No. 16-DCC-111 of 27 July 2016).). In order to remedy the competition concerns identified, the Fnac group undertook to divest six (...)

Emily Xueref-Poviac French Competition Authority’s President powers: The French Constitutional Court confirms that the power of the French Competition Authority’s President to decide alone to agree transfer of assets does not violate constitutional rights (Fnac / Darty)

20 April 2018 282

The Act of 6 August 2015, known as the Macron Act, introduced the possibility, in merger cases, of a single-judge decision on commitment review decisions (provisions of the last sentence of Article L. 461-3 C. com.). A priority question of constitutionality was raised by Fnac Darty concerning (...)

Emily Xueref-Poviac Gun Jumping: Advocate general N. Wahl delivers its opinion on the duty to suspend the implementation of a concentration until it has been declared compatible with the common market (EY / KPMG)

18 January 2018 218

They say it’s wrong to be right too soon. Thus, Advocate General Nils Wahl introduced the question of the scope of the obligation to suspend the implementation of a concentration prior to its clearance under Article 7(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control (...)

David Tayar, Emmanuel Combe, Laurent Flochel Intellectual property and competitive behaviours in the pharmaceutical industry (Nasse Seminar - Paris, 9th November 2017)

February 2018 221

During the Nasse Seminar organized the 9th of November of 2017, David Taylar (lawyer ar Clifford Chance) and Laurent Flochel (economist, vice-president du cabinet Charles River Associate) talked about intellectual property and competitive behaviours in the pharmaceutical industry. This (...)

David Tayar, Emily Xueref-Poviac Adequacy of commitments: The French Competition Authority applies clarification provided by the French Supreme Administrative Court (Totalgaz / UGI Bordeaux)

3 July 2017 241

By its additional decision No. 17-DCC-103 of July 3, 2017 relating to the acquisition of exclusive control of Totalgaz SAS by UGI Bordeaux Holding SAS, the French Competition Authority drew the lessons from the judgment of the Conseil d’État of July 6, 2016, following the appeal filed by (...)

David Tayar, Emily Xueref-Poviac Negative clearance: The European Commission prohibits a merger in the financial markets (Deutsche Börse / London Stock Exchange)

29 March 2017 284

By Decision M.7995, Deutsche Börse / London Stock Exchange, of 29 March 2017, the European Commission has declared the proposed concentration by which the two previously independent undertakings Deutsche Börse AG (³cDBAG³d) and London Stock Exchange Group plc (³cLSEG³d) intend to merge, within (...)

David Tayar, Maxime de l’Estang Non-compliance with commitments: The French Competition Authority imposes a €40 million fines to a telecom operator for having failed to comply with commitments undertaken during a previous merger (SFR ; Altice)

8 March 2017 289

The acquisition of SFR by Numericable, a subsidiary of the Altice Group, was authorized by the French Competition Authority (the "Authority") on October 30, 2014 (Decision No. 14-DCC-160), subject to commitments (the "Operation"). The Authority considered that the Operation was likely to (...)

Emily Xueref-Poviac, Orion Berg Non-discriminatory and independence obligations: The French Energy Regulatory Commission publishes its Tenth Report on independency of network operators

3 February 2017 172

On 3 February 2017, the Commission de Régulation de l’Energie (hereinafter "CRE") published its tenth monitoring report on "Compliance with the codes of good conduct and independence of electricity and natural gas network operators in 2015 and 2016". This tenth edition of the CRE report gives (...)

David Tayar, Maxime de l’Estang Risk of monopoly : The European Commission authorizes, subject to conditions, a combination in the diagnostic systems sector (Abbott Laboratories / Alere)

25 January 2017 171

On 25 January 2017, the European Commission (the "Commission") approved the acquisition of Alere, a US company specialising in diagnostic solutions for infectious and cardio-metabolic diseases and toxicology, by Abbott Laboratories ("Abbott"), a US medical device giant listed on the New York (...)

Agathe Richard, Aidan Synnott, Albert A. Foer, Alden Abbott, Alvaro Ramos, Ben Labow, Bonny Sweeney, Bradley T. Tennis, Christopher Meyers, Donald C. Klawiter, James J. Tierney, James Langenfeld, Janet L. McDavid, John DeQ. Briggs, John Kwoka, Joseph Farrell, Logan Breed, Mark D. Whitener, Michael A. Carrier, Michael D. Hausfeld, Michael L. Weiner, Michael P. Lehmann, Richard S. Taffet, Scott Sher, Sharis Pozen, William H. Rooney What is Trump Antitrust?

November 2016 2300

Change is in the air and it is coming to antitrust and competition policy in the United States. The unexpected election of President-elect Donald J. Trump opened wide the speculation or mystery about what he and his advisors are planning concerning his administration’s antitrust policy. During (...)

David Tayar Commitments: The European Commission conditionally clears the acquisition by a French pharmaceutical company of a German competitor’s Consumer Healthcare Business (Sanofi/Boehringer Ingelheim Consumer Healthtcare Business)

4 August 2016 165

By a decision of August 4, 2016, the European Commission (the "Commission") has approved, subject to commitments, the acquisition by the French pharmaceutical company Sanofi of the assets related to the Consumer Healthcare division ("Consumer Healthcare") of its German competitor Boehringer (...)

David Tayar Commitments: The French Competition Authority authorizes, subject to the divestment of six retail stores in Paris and the Parisian region, an operation in the electro-domestic products retail sector (Fnac / Darty)

27 July 2016 277

Following an in-depth examination (Phase 2), and a Homeric stock exchange battle which also involved Conforama and its South African shareholder, the Competition Authority (the "Authority") has cleared the transaction, subject to disposal commitments relating to six stores in Paris and the (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet, Orion Berg Electronic communications: The French Regulatory Authority for electronic communications and post exercises its newfound authority over mobile network sharing and publishes guidelines

25 May 2016 195

Since August 2015, the Autorité de Régulation des Communications Electroniques et des Postes ("ARCEP") has the power to require mobile network operators to modify their network sharing contracts (roaming, network sharing, etc.), where this is necessary to achieve regulatory objectives. Many (...)

Dave Poddar, Mark Grime Australia: Are proposed reforms a step in the right direction?

May 2016 353

Australia’s competition regime has undergone few reforms that could be characterised as being as substantial as those proposed by the Competition Policy Review. The Competition Policy Review’s Final Report was released on 31 March 2015, and suggested a number of sweeping reforms to Australia’s (...)

David Tayar, Maxime de l’Estang Notification thresholds: The European Commissioner for competition, Margrethe Vestager, delivers a speech on european merger thresholds

10 March 2016 721

Following a resolution of the European Parliament of 19 January 2016 on the European Union’s competition policy (2015/2140 INI), Margrethe Vestager, European Commissioner for Competition, in a speech delivered on 10 March in Brussels, questioned the relevance of the notification thresholds in (...)

David Tayar, Maxime de l’Estang Phase II: The European Commission clears an acquisition in the Belgian Telecommunication sector (Liberty Global / BASE Belgium)

4 February 2016 277

On 4 February 2016, the European Commission (the "Commission") cleared, subject to conditions, the acquisition of BASE Belgium (³cBASE³d), the third largest mobile network operator (³cMNO³d) in Belgium, by Liberty Global, a cable operator active in the Belgian market via Telenet and operating (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet, Orion Berg Rail transports: The French rail and road regulatory body delivers a decision on an allocation request of railway infrastructure capacities with the infrastructure manager (SNCF Réseau)

3 February 2016 207

In July 2015, the Auvergne Region and the Rhône-Alpes Region, which since 1 January 2016 has formed a single Auvergne-Rhône-Alpes Region ("the Region"), referred a dispute with SNCF Réseau concerning the implementation of the procedure for allocating train path capacity to the Autorité de (...)

David Tayar, Maxime de l’Estang Independence of the trustee: The Court of Justice of the European Union upholds the judgment of the General Court of the European Union and confirms the decision of the European Commission authorizing the purchase of a group in the publishing sector (Odile Jacob)

28 January 2016 1130

Final episode of the long Odile Jacob saga (see our article in the present review Concurrencesn°4-2010, p. 160).). In this judgment, the Court of Justice of the EU (the "Court") dismissed the appeal brought by Éditions Odile Jacob ("Odile Jacob") against the judgment of the Court of First (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet, Laetitia Ghebali, Orion Berg Net neutrality: The European Union adopts a regulation establishing the principle of net neutrality and abolishing roaming charges

25 November 2015 313

Following the agreement reached between the three EU institutions on 30 June 2015, formally adopted by the Council on 1 October 2015 and by the European Parliament on 27 October 2015, Regulation (EU) 2015/2120 of the European Parliament and of the Council laying down measures on access to an (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet, Orion Berg Telecommunications: The French Supreme Administrative Court rules on mobile network sharing agreement and on national roaming contracts concluded between two mobile telephone operators (Bouygues Télécom)

9 October 2015 230

In two judgments, 379579 and 384231 of October 9, 2015, the Conseil d’État returned to the conditions for sharing mobile networks and, in particular, to the execution of the national roaming contract entered into between Free Mobile ("Free") and Orange. On the one hand, it confirms that the (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet, Orion Berg Transport : The French Railway Activities Regulatory Authority calls for more transparency regarding the charges payable against services in railway stations (Stif / SNCF)

15 July 2015 202

Since its establishment in 2010, the Rail Regulatory Authority (hereinafter "ARAF") has been supporting the rail sector in its gradual opening up to competition. ARAF, whose mission is to contribute to the proper functioning of the public service and competitive activities for the benefit of (...)

Emily Xueref-Poviac, Estelle Leclerc, Jean-Paul Tran Thiet, Orion Berg Energy : The French Energy Regulatory Commission issues a deliberation regarding the responses provided by incumbent operators and their parent companies related to their compliance with the French Energy Code

23 June 2015 277

On June 23, 2015, the Commission de Régulation de l’Energie (hereinafter "CRE") published a deliberation on the responses provided by Électricité Réseau Distribution France (hereinafter "ERDF"), Gaz Réseau Distribution France (hereinafter "GRDF") and their parent companies (respectively EDF (...)

David Tayar, Katrin Hristova Conditional clearance : The General Court of the European Union dismisses the action for annulment against the Commission’s decision authorising, subject to commitments, an acquisition in the air transport sector (Niki Luftfahrt)

13 May 2015 204

By judgment of 13 May 2015, in Case T-162/10, the Court of First Instance of the European Union (’the Court’) dismissed the action for annulment brought by the company Niki Luftfahrt (’Niki Luftfahrt’) operating the airline ’FlyNiki’, against the decision of the European Commission (’the (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet, Orion Berg Electronic communications : The Court of Justice of the European Union considers that an undertaking has a right of appeal against a national competition authority’s decision that is likely to have an impact on its position on the market (T-Mobile Austria)

22 January 2015 325

CJEU, 22 Jan. 2015, T-Mobile Austria, Case C-282/13 In its judgment C-282/13 of 22 January 2015, the Court clarified, in response to a question referred for a preliminary ruling, the rights of competing undertakings in the event of a procedure for the transfer of telecommunications (...)

Emily Xueref-Poviac, Estelle Leclerc, Jean-Paul Tran Thiet Electronic communications : The French Supreme Administrative Court rejects a request to suspend a decision of the French Electronic Communications and Postal Regulatory Authority publishing a report on the measurements of the quality of service for fixed Internet access (Free)

12 December 2014 205

On November 25, 2014, the Autorité de régulation des communications électroniques et des postes (hereinafter "ARCEP") published a preliminary version of an observatory measuring the quality of the fixed Internet access service offered by electronic communications network operators in (...)

David Tayar Approval of the purchaser : The General Court of the European Union rejects an appeal against a decision approving the purchaser of divested assets (Odile Jacob)

5 September 2014 288

By judgment of 5 September 2014, the General Court of the European Union (the ’General Court’) dismissed the action brought by Éditions Odile Jacob SAS (’Odile Jacob’) against the decision of the European Commission (the ’Commission’) of 13 May 2011 approving, for the second time, Wendel (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet, Orion Berg Broadcasting rights : The French Competition Authority suspends the agreement concluded between the French Rugby National League and a television group regarding exclusive broadcasting rights and requires a new call for tenders (beIN Sports)

30 July 2014 266

Following a complaint filed by beIN Sports, accompanied by a request for precautionary measures, the French Competition Authority ordered, by decision no. 14-MC-01 of July 30, 2014, the suspension of the agreement entered into on January 14, 2014 by which the French National Rugby League (LNR) (...)

David Tayar Failure to notify : The European Commission fines the purchaser € 20 million for taking control without prior EU merger clearance (Marine Harvest / Morpol)

23 July 2014 378

Pending publication of the decision, reference is made to the €20 million fine imposed by the European Commission (the "Commission") on Marine Harvest ASA ("Marine Harvest"), a Norwegian salmon farmer and processor, for acquiring sole control of Morpol ASA ("Morpol"), a major competitor, nine (...)

David Tayar Minority Shareholdings - White paper: The European Commission consults on the reform of the rules related to acquisitions of non-controlling minority shareholdings and on other improvements of EU merger control rules

9 July 2014 399

There seems to be a move towards an obligation to inform the European Commission of minority shareholdings giving rise to horizontal overlaps or vertical relationships. Following two public consultations launched in 2009 and 2013 as part of the review of the merger control rules, the (...)

Emily Xueref-Poviac, Jean-Paul Tran Thiet Online gambling: The French Competition Authority identifies a series of competition issues raised by the horse racing incumbent operator’s activities (PMU)

25 February 2014 218

The Competition Authority has obtained from the Pari Mutuel Urbain (PMU) that it separate its online horse betting activity from that of its network of physical outlets under monopoly. The gambling sector has long been structured around monopolies, entrusted by law to La Française des Jeux (...)

David Tayar, Maxime de l’Estang Sanction: The French Competition Authority fines a producer of still and sparkling wines for having failed to fulfill the prior notification obligation of a merger

20 December 2013 261

By Decision No. 13-D-22 of December 20, 2013, the French Competition Authority (hereinafter the "Authority") sanctioned Copagef SA, at the head of the Castel Frères group (hereinafter "Castel"), in the amount of 4 million euros for failing to comply with the obligation to provide prior (...)

Ulrich Pfeffer The wait is over: German Parliament adopts new competition law rules

December 2013 388

Après plusieurs mois de controverse politique, le législateur allemand a adopté un nouvel amendement de la loi contre les restrictions à la concurrence (GWB). Entré en vigueur depuis le 30 juin 2013, cet amendement a pour objectif d’harmoniser le droit allemand de la concurrence avec le droit (...)

Etienne Pfister, Raphaël De Coninck, Susan Hinchliffe Minority shareholdings and interlocking directorates

September 2013 1045

This set of contributions presents the various competitive effects associated with minority shareholdings. It also considers how these effects can be dealt with either through notifications to the competition authority, especially with the case of the German and British legislations, or (...)

Alice Guérin, David Tayar, Maxime de l’Estang New guidelines: The French Competition Authority publishes its new merger control guidelines (Merger control guidelines)

10 July 2013 393

On 10 July 2013, the Competition Authority adopted its Revised Merger Control Guidelines following a consultation process on a draft that the Authority published last February, which attracted 18 contributions from industry associations, economists and law firms (see (...)

Alice Guérin, David Tayar, Maxime de l’Estang Exclusive control: The General Court confirms that the Commission enjoys a wide margin of discretion in merger control proceedings (SPAR Österreichische Warenhandels)

7 June 2013 235

On 7 June 2013, the General Court of the European Union (the "General Court") dismissed the action brought by SPAR against European Commission (the "Commission") decision COMP/M.5047 of 23 June 2008 authorising REWE, a leading food retail group in Austria, to acquire sole control of ADEG, a (...)

David Tayar, Maxime de l’Estang Misleading information: The European Commission suspects two parties to a merger of having provided incorrect or misleading information on market shares (Munkjsö, Ahsltrom)

24 May 2013 191

On 24 May 2013, the European Commission (the ’Commission’) had cleared, subject to commitments, the merger between two specialty paper producers, Munksjö AB (’Munksjö’) and the labels and converting division of Ahlstrom Corporation (’Ahlstrom’). In the course of the Commission’s in-depth (...)

David Tayar Prohibition: The European Commission prohibits the proposed merger between two major companies on the express delivery of small packages market (UPS)

May 2013 242

Eur. comm., dec. art. 8, § 3 R.139/2004 of 30 January 2013, UPS/TNT Express, aff. COMP/M.6570 On January 30, 2013, the European Commission (the "Commission") prohibited the proposed United Parcel Service Inc. ("UPS") from acquiring sole control over its competitor TNT Express N.V. ("TNT (...)

David Tayar Notification: The French Competition Authority sanctions a supplementary pension fund for acquiring control of a competitor without prior approval (Réunica, Arpège)

May 2013 260

Aut. conc., dec. no. 13-D-01 of 31 January 2013 on the situation of the Réunica and Arpège groups with regard to Article I of Article I of the Convention. L. 430-8 C. com The last few months have been unusually rich in news on the subject of breaches of the obligation of prior notification (...)

Florian Bien, Ulrich Pfeffer Germany: The Federal Court of Justice places high demands of proof relating to the justification of a denial of access to a ferry port

May 2013 197

Bundesgerichtshof, 11/12/12 - Az. KVR 7/12 - Puttgarden II An undertaking with a dominant market position is in principle not obliged to share its networks and infrastructure with its competitors. There is, however, one exception highlighted by the so-called "essential facilities" doctrine, (...)

David Tayar Prohibition of takeover: The European Commission prohibits for the second time the proposed takeover of an airline company by its direct competitor (Ryanair / Aer Lingus)

27 February 2013 311

A new chapter has just been written in the now famous "Ryanair saga". On 27 February 2013, the European Commission (the "Commission") prohibited, for the second time, the proposed acquisition of the airline Aer Lingus by Ryanair (the "Parties"), its most direct rival (the "Operation"). This (...)

Andreas Bardong, Céline Gauer, David Bosco, Etienne Pfister, Katrin Schallenberg, Oliver Bretz, Simon Genevaz, Tad Lipsky Market tests in antitrust and merger control proceedings

February 2013 2268

Nowadays, commitments decisions of the competition authorities are, most of the time, preceded by a consultation of third parties. These "market tests" have become a central step of the antitrust procedure and merger control. The authors of this Tendances present their experience in using this (...)

Bernard Amory, David Tayar, Nadine Mouy, Nathalie Jalabert-Doury, Serge Clerckx The pre-notification phase

December 2012 1090

The pre-notification phase has proved to be a useful mean to address “upfront” many of the issues that a concentration may raise, without being bound by the strict timetable of the formal review process. It works well but there is arguably still some room for improvement. The (...)

Sharis Pozen, Tiffany Rider Sharis A. Pozen (DOJ): An insiders candid views of competition issues past and future

December 2012 398

Interview conducted by Tiffany Rider, Skadden Arps, Washington DC. You have had a successful career both in the government, at the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) — and in private practice. Can you discuss your keys to success and your most recent (...)

Alice Guérin, David Tayar, Maxime de l’Estang Phase 2 with commitments: The European Commission uses a new theory of harm related to an increased bargaining power of the parties to impose significant commitments (Universal Music Group / EMI Music)

21 September 2012 308

On September 21, 2012, the European Commission (the "Commission") conditionally approved the acquisition of sole control of the core business of UK-based EMI Group Global Limited ("EMI") by Universal Music Group ("Universal", together the "Parties"), a subsidiary of French media and (...)

David Tayar, Thibaud Vergé Concentrative vs. cooperative joint-ventures

September 2012 1293

This set of two papers is derived from the training session organized by the Concurrences Review that was held on 20th March 2012 in Paris. The contributions examine the legal and economic issues that joint ventures may raise in the context of the implementation of merger control rules. (...)

David Tayar, Jacques-Philippe Gunther, Pierre Régibeau Anticompetitive practices and intellectual property: Standardization, patents and frand

September 2012 1717

The setting of standards through standard-setting organisations gives rise to two main kinds of problems: royalty-stacking, due to the complementarity of the IPRs involved and hold-up. FRAND commitments are meant to deal with the second issue only. DG Competition is currently investigating (...)

David Tayar, Maxime de l’Estang Acquisition of business – Commitments: The European Commission authorizes the acquisition of the European paper products branch of an American group by a Swedish company conditional upon commitments (SCA/Georgia-Pacific Europe)

5 July 2012 215

Eur. Com. dec. art. 6, § 1(b) R.139/2004, 5 July 2012, SCA/ Georgia-Pacific Europe, case COMP/ M.6455. The European Commission (the ³cCommission³d) has approved, subject to commitments, the acquisition of sole control of Georgia-Pacific Europe (³cGPE³d), the European arm of the US company (...)

David Tayar, Maxime de l’Estang Acquisition of business: The French Competition Authority authorizes the acquisition of six companies by a group in the wine distribution sector (Patriarche, Castel Frères)

2 July 2012 198

Aut. conc, 02.07.12, N° 12-DCC-92, Acquisition of six companies of the Patriarchal Group by the company Castel Frères The French Competition Authority (the "Authority") has authorized, after a "phase II" review, the acquisition and acquisition of exclusive control by the Castel Frères group (...)

David Tayar Vertical effects – Conglomerate effects: The European Commission cleares in phase I an acquisition in the mobile phone sector (Acquisition of sole control of Motorola by Google)

13 February 2012 369

Eur. Comm. dec. art. 6(1)(b), Reg. 139/2004, 13 February 2012, Google/Motorola Mobility, case COMP/M.6381 In August 2011, Google announced its intention to acquire Motorola Mobility (MM), a subsidiary of the eponymous mobile phone manufacturer, for $12.5 billion. Google is the world leader (...)

David Tayar Vertical effects – Conglomerate effects: The French Competition Authority cleared in phase I an acquisition in the sector of electricty and gas supply subject to conditions (Enerest, Électricité de Strasbourg)

7 February 2012 264

Aut. conc. dec. no. 12-DCC-20 of 7 February 2012 relating to the acquisition of sole control of Enerest by Électricité de Strasbourg The operation, which was cleared subject to commitments, consisted in the acquisition of sole control of Enerest by Electricité de Strasbourg (ES), an 88.82% (...)

David Tayar Financial services : The European Commission exercices its veto against a merger project between two financial services companies (Deutsche Börse/NYSE Euronext)

1 February 2012 311

Eur. comm., dec. art. 8, §3 R.139/2004 of 1 February 2012, Deutsche Börse/NYSE Euronext, aff. COMP/M.6166 The decision to prohibit the proposed merger between New York Stock Exchange Euronext Inc. and Deutsche Börse AG, valued at $9.7 billion, is the twenty-second in the history of Community (...)

Thomas Vinje Competition Law and Regulation of Technology Markets, Kevin COATES

February 2012 1010

Competition Law and Regulation of Technology Markets takes a practical,integrated approach to EU and US competition law and regulation in the technology sector - including major trans-Atlantic cases such as Microsoft, Google/Doubleclick, and Intel, and important comparative issues such as (...)

David Tayar Phase II - Unconditional Clearance: The European Commission unconditionally clears the combination of the activities of two orange juice producers following a phase II (Votorantim/Fischer/JV)

4 May 2011 639

Eur. comm., dec. art. 8, §1 R.139/2004, 4 May 2011, Votorantim/Fischer/JV, case COMP/M.5907 The present case is another example of an unconditional approval decision at the end of Phase II, which is becoming less and less rare (see, for example, until recently, the UPM/Myllukoskiand Rhein (...)

David Tayar Commitments: The European Commission waives the commitments submitted by Hoffman La Roche (Hoffmann-La Roche / Boehringer Mannheim)

3 May 2011 509

Eur. Comm, dec. art. 8(2) R.139/2004, 3 May 2011, Hoffmann - La Roche/Boehringer Mannheim, case COMP/M.950 If we look at the issue of commitments, the period covered by this column offers a contrasting landscape. While some were forced to pay a heavy fine and re-notify a transaction that had (...)

Anne Perrot, David Sevy, David Tayar Economics of multiproducts competition

May 2011 2002

This set of three papers is derived from the training session on the multiproducts competition organised by Concurrences Review that has held on the 15th March 2011 in Paris. In the first contribution, Anne Perrot, Vice President of the Competition Authority, exposes the specificities of (...)

David Tayar Merger control: The European Commission publishes the full text of a decision prohibiting the merger project of two airline companies (Olympic/Aegean Airlines)

26 January 2011 330

Eur. comm., Dec. 8, § 3 R.139/2004, 26 January 2011, Olympic/Aegean Airlines, Case COMP/M.5830 The decision to prohibit the proposed merger between Olympic Air ("Olympic") and Aegean Airlines S.A. ("Aegean") is the twenty-first in the history of Community merger control, and the second in (...)

David Tayar Concept of concentration: The General Court upholds the decision of the Commission authorizing the purchase of a group in the publishing sector (Odile Jacob)

13 September 2010 1638

GCEU, 13 September 2010, Odile Jacob v. Commission, case T-279/04 Although it addresses substantive issues of relevance to merger control (conglomerate effects, in particular), the main interest of the Court’s judgment in the Lagardère case lies in its analysis of the "portage" operation (...)

David Tayar Merger control - Guidelines : The French Competition Authority launches a consultation on the draft merger guide lines

November 2009 2707

– Concordant Aut. 9 July 2009, Public consultation on the draft new Merger Control Guidelines The Authority launched on 24 May 2009 a broad public consultation on its draft Merger Control Guidelines. The draft covers all aspects of the subject matter, from questions of scope of control, (...)

David Tayar Collective dominant position: The French Council of State confirms the Minister’s decision having cleared a merger in the audit and accountancy sector and applies the EC criteria for collective dominant position (Fiducial Audit et Fiducial Expertise ; Deloitte/BDO Marque et Gendrot)

31 July 2009 2843

CE, 31 July 2009, Fiducial Audit and Fiducial Expertise, No. 305903; against Min. éco, 15 December 2006, Deloitte/BDO Marque et Gendrot, aff. C2006-91 There have been few judgments of the Conseil d’Etat in merger control cases. What is more, the Conseil d’Etat rules on an important issue, (...)

David Tayar Notification - Gun jumping: The European Commission inflicts a € 20 M fine for absence of notification (Electrabel)

10 June 2009 3567

EC Commission, IP/09/895, 10 June 2009, Mergers: Commission fines Electrabel 20 million euros for acquiring control of Compagnie Nationale du Rhône without prior Commission approval On 10 June the European Commission published a press release announcing that Electrabel had been fined €20 (...)

David Tayar Spill-over effect between JV and parent companies: A need for a more consistent approach

September 2009 3978

Both Community and French competition law take into account spillover effects in the assessment of joint ventures. However, the EC and French approaches are not fully consistent as to the actual scope and content of the spillover effects analysis. A clarification of the relevant criteria would (...)

Bruno Lasserre, David Sevy, David Tayar, Jacques-Philippe Gunther, Laurence Idot "Transaction" & Commitments: EC and French antitrust negotiated proceedings

May 2008 8027

Presentation Laurence Idot Professor, Universtité Paris II, European College Director of the Scientific Committee of Concurrences 1. It is in my capacity as head of the journalConcurrences’s scientific committee that I was asked to make this morning’s presentation. I confess that I (...)

Christophe Lemaire, Michel Petite, Michel Waelbroeck Conference - "Competition law and the Lisbon Treaty": What will be the impact of the new Treaty on competition law? A legal point of view

February 2008 6528

Since we have been talking about pedagogy several times since the beginning of the morning, this panel will give us the opportunity to put these recommendations into practice right away. Indeed, what we have been asked to do is to take a legal look at the impact of the new treaty on (...)

Bulletin

Foreword

Emily Xueref-Poviac Foreign Direct Investment: An overview of the EU and national case law

16 September 2021 1209

It’s a well-established fact: investment screening mechanisms have existed for a long time. The introduction of such rules, which allow governments to scrutinise individual investment proposals for their potential impact on essential security interests, can be traced back to the 1960s in some countries. Nevertheless, many countries were historically relying on single-sector authorisation requirements or similar mechanisms at most. Therefore, in practice, foreign direct investment (’FDI’) screening mechanisms had rather limited implications on transactional practice areas and only concerned investments in the defense sector.

Emily Xueref-Poviac Access to facilities in the energy sector: An overview of EU and national case law

3 May 2018 1329

The energy sector is in transition and this will imply key areas of change to the market and its design over the coming years. In the few short pages of this foreword, we will attempt to provide an overview of the European Commission and European national competition authorities (’NCAs’) practice in this respect and in particular as regards access to facilities in the energy sector.

Daniel Schwarz, Greg Olsen Financial services and competition law: An overview of EU and national case law

18 October 2016 536

Introduction Nearly a decade since the financial crisis first hit the European Union, financial services remain in the spotlight. Around 30% of the European banking sector has been subject to State aid control and more than 60 banks have been restructured: many of them still constrained by (...)

Daniel Schwarz, Greg Olsen Insurance services and competition law: An overview of EU and national case law

17 February 2016 730

Introduction This special issue of the e-Competitions Bulletin contains a selection of the key developments in European competition law related to the insurance sector – an area presenting unique and challenging policy considerations. In 1987 the Court of Justice of the EU ("CJEU") stated in (...)

Aleksander Tombinski, Johan Ysewyn Leniency and competition law: An overview of EU and national case law

9 April 2015 464

This year -2014- the EU leniency programme is reaching the age of majority. The first European Commission Notice on the non-imposition or reduction of fines in cartel cases was published 18 years ago. e-Competitions chose the perfect time to review and comment on the recent developments in (...)

Dieter Paemen, Thomas Vinje Dominance in the IT sector: An overview of EU and national case law

21 October 2014 460

The information technology ("IT") sector has proven to be fertile ground for investigations of abuses of market power (otherwise referred to as "monopolization" and "monopoly maintenance" under Section 2 of the Sherman Act in the United States, or "abuses of dominance" under Article 102 TFEU (...)

Greg Olsen, Peter Malone Financial services and competition law: An overview of EU and national case law

24 July 2014 354

I. Introduction As we begin to emerge from the global financial crisis, it is worth reflecting on the legacy of governmental and regulatory intervention within the European Union. In particular, the scale of State support has been enormous. Between 1 October 2008 and 1 October 2013, the (...)

Claudio Tesauro, Francesco Russo, Giulio Matarazzi, Pasquale Leone Interim Measures: An overview of EU and national case law

31 March 2014 537

Interim measures are a tool for competition authorities to guarantee the effective enforcement of antitrust law. They ensure that, while an investigation is ongoing, no irreparable damage is caused to competition which could no longer be remedied by the decision adopted at the conclusion of the proceedings.

Alastair Mordaunt, Daniel Harrison Mergers in the energy sector: An overview of EU and national case law

4 October 2012 543

In most downstream energy sectors – which encompass the large majority of cases covered in this special issue – the transmission, distribution and supply of gas and electricity was operated historically by local, regional or national monopolies, usually state-owned. That was the case when the (...)

Greg Olsen, Michael Rueter Insurance services and competition law: An overview of EU and national case law

24 April 2012 483

I. Introduction This special issue of the e-Competitions bulletin provides an overview of selected national case law from EU Member States relating to insurance services, a sector in which competition law must be applied with an enhanced degree of sensitivity. In particular, as recognised in (...)

Algeria

Anthony Giustini, Malik Idri The Algerian Competition Authority clears the acquisition of control over the country’s largest mobile phone operator by the Government’s national investment fund (Orascom Telecom Algérie / Fonds National d’Investissement)

18 April 2014 42

On 18 April 2014, VimpelCom announced that it and Global Telecom Holding S.A.E. (GTH) had signed a share purchase agreement for the sale by GTH of a 51% interest in Orascom Telecom Algérie (OTA), which includes Djezzy, the largest mobile-phone operator in Algeria, to the Fonds National (...)

Australia

Elizabeth Richmond, Mark Grime The Australian Competition Authority introduces a new mandatory and suspensory merger notification model which would result in closer alignment of Australia’s merger control laws with those of the EU

12 April 2023 51

Transactions involving companies with turnover of AUD$400 million or a transaction value of more than AUD$35 million would trigger a mandatory ACCC merger filing under proposed ACCC reforms to the Australian merger notification regime. Proposed merger filing thresholds The ACCC continues (...)

Michael Evans, Paula Mucha The Australian Parliament aligns the maximum penalties under the Australian Consumer Law with the maximum penalties for breaches of the competition provisions of the Competition and Consumer Act

23 August 2018 200

NEW FINANCIAL YEAR, NEW PENALTIES – GREEN LIGHT FOR INCREASED ACL PENALTIES* On 23 August 2018, the Australian Parliament passed the Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 (Cth) (Bill). The Bill aligns the maximum penalties under the Australian Consumer Law (ACL) with the (...)

Austria

Andrzej Kmiecik, Helga Gudmundsdottir The Austrian Cartel Court finds a musical instruments maker to have engaged in resale price maintenance (Roland Germany)

24 September 2020 112

According to a press release issued by the Austrian Federal Competition Authority (“FCA”), the Austrian Cartel Court ruled on 24 September 2020 that musical instruments maker Roland Germany GmbH (“Roland Germany”) had violated the competition rules by entering into agreements fixing minimum (...)

Belgium

Jacques-Philippe Gunther, David Tayar, Viala Faustine, Adrien Giraud The Brussels Court of Appeal dismisses a claim by a horse competition authority claiming that exclusivity clauses are legitimate on the basis that they protect the animals and riders (International Equestrian Authority)

28 April 2016 38

Belgian Competition Authority vs. International Equestrian Authority: second round* On April 28, 2016, the Brussels Court of Appeal dismissed the appeal by the Fédération Equestre Internationale (“FEI”) of an injunction issued by the Belgian Competition Authority (the “BCA”) that suspended (...)

Canada

Daniel Schwarz, Mark Katz The EU and Canada sign the Comprehensive Economic and Trade Agreement (CETA) setting out provisions relating to competition policy

30 October 2016 441

This article has been nominated for the 2018 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. What does CETA mean for EU and Canadian competition policy?* Introduction With the Comprehensive Economic and Trade Agreement (CETA) having finally been (...)

Denmark

Andrzej Kmiecik, Helga Gudmundsdottir, Marcus Gustafsson The Danish Competition Authority orders a fashion company to stop anti-competitive information exchange with its retailers (Hugo Boss / Kaufmann) (Hugo Boss / Ginsborg)

24 June 2020 409

On 24 June 2020, the Danish Competition Council (“DCC”) adopted two separate decisions concerning anticompetitive conduct engaged in: (i) between the clothing manufacturer, supplier and retailer Hugo Boss Nordic ApS (“Hugo Boss”) and the retailer Axel Kaufmann ApS (“Kaufmann”) and (ii) between (...)

European Union

Carmen Puscas The EU General Court upholds the Commission’s decision that geo-blocking practices for video gaming restrict competition (Valve / Bandai / Capcom / Focus Home / Koch Media / ZeniMax)

27 September 2023 98

In January 2021, the European Commission ("EC") fined Valve and five video game publishers EUR 7.8 million for geo-blocking practices. Last week, the General Court upheld the EC’s characterisation of geo-blocking practices restricting cross-border sales of certain PC games based on the (...)

Ana Hergouth, Ketevan Zukakishvili The EU Commission designates the first set of gatekeepers with compliance responsibilities under the Digital Markets Act (Alphabet / Amazon / Apple / ByteDance / Meta / Microsoft)

6 September 2023 212

The European Commission (Commission) has designated six businesses as "gatekeepers" under the EU Digital Markets Act (DMA), in respect of 22 different "core platform services" that they provide. This follows the earlier designation of the same businesses, plus a number of others, under the EU (...)

Anne Filzmoser The EU Commission adopts new rules to simplify the merger procedure under the EU Merger Regulation

20 April 2023 82

Update from Brussels: New EU simplified procedure and filing forms The European Commission has adopted new rules for the simplified procedure under the EU Merger Regulation and revised its notification forms. As of 1 September 2023, the new mechanism will inter alia allow a limited range of (...)

Paschalis Lois The EU Court of Justice issues a decision on the imputation of liability and treatment of exclusivity under the EU prohibition on abuse of dominance (Unilever Italia)

19 January 2023 67

In its January 2023 Unilever Italia judgment, the European Court of Justice ("ECJ") ruled on two important practical aspects of the application of the EU prohibition on abuse of dominance under Article 102 TFEU. Background In December 2020, the Italian Consiglio di Stato made a request for (...)

Ana Hergouth The EU Commission publishes the Digital Markets Act in the Official Journal

12 October 2022 998

The Digital Markets Act (DMA), the novel regulatory regime for large digital companies - the so-called gatekeepers - has been published in the Official Journal (OJ) of the European Union today. As a result, as provided in the DMA, it will enter into force 20 days after the publication in the (...)

Sabra Ferhat The EU General Court annuls the Commission’s decision imposing a near-billion euro fine on a chip manufacturer for exclusivity payments to phone producer (Qualcomm)

15 June 2022 113

The judgment is a rare full annulment in an abuse of dominance case, and the first of an Article 102 TFEU decision adopted by Commissioner Margrethe Vestager. Background On 24 January 2018, the European Commission (EC) imposed a fine of EUR 997 million on Qualcomm for breaching Article 102 (...)

Emily Xueref-Poviac Foreign Direct Investment: An overview of the EU and national case law

16 September 2021 1209

Sabra Ferhat, Maria Sowinska The EU Commission publishes its decision which finds that a video games distribution platform and a video games publisher had partitioned the internal market through concerted practices to restrict competition outside certain EU member states (Valve / Bandai Namco / Capcom / Focus Home / Koch Media / ZeniMax)

20 January 2021 79

Background On 20 January 2021, the European Commission ("Commission") announced its decision that Valve Corporation ("Valve"), the owner of the "Steam" video game distribution platform, and five PC video game publishers had partitioned the internal market by entering into bilateral (...)

Hendrik Coppoolse, Lou Fuseau, Caroline Pianelli, Mathilde Despas The EU Court of Justice rules on the royalty mechanism of a Belgian collecting society in a situation of de facto monopoly (SABAM)

25 November 2020 241

On 25 November 2020, the European Court of Justice (ECJ) handed down its preliminary ruling in response to the request by the Ondernemingsrechtbank Antwerp as to the interpretation of Article 102 TFEU. The disagreement between Weareone.World and Wecandance on one side, and SABAM, a Belgian (...)

Laura Tresoldi, Ketevan Zukakishvili The EU General Court President issues two orders for interim measures on personal data gathered in EU antitrust probes against a major social media platform (Facebook)

29 October 2020 449

In the context of ongoing antitrust investigations into Facebook Inc.’s (‘Facebook’) data-related practices (AT.40628) and Facebook marketplace (AT.40684), on 13 March 2020 the European Commission (‘Commission’) issued two formal requests for information (‘RFIs’), requiring the company to (...)

Bram Van der Beken The EU Court of Justice clarifies the extent to which a document containing sensitive personal information requested as part of an RFI is relevant to an investigation by ordering interim measures in a Court order (Facebook)

29 October 2020 197

Just How Far Could We and Should We Stretch the Facebook V Commission Court Order?* The Court order of 29 October 2020 struck by the President of the General Court in a dispute between Facebook and the European Commission is probably the first time in a while where the essence of a case (...)

Andrzej Kmiecik, Floris-Willem Dierickx, Helga Gudmundsdottir The EU Commission publishes an inception impact assessment as part of the reform of the vertical block exemption regulation

23 October 2020 245

On 23 October 2020, the European Commission (“Commission”) published an Inception Impact Assessment (the “Inception Assessment”) (available here) as part of the revision of the Vertical Block Exemption Regulation (“VBER”) and the Vertical Guidelines in anticipation of the expiry of the VBER on (...)

Andrzej Kmiecik, Floris-Willem Dierickx, Helga Gudmundsdottir The EU Commission launches public consultations on the Motor Vehicle Block Exemption Regulation

12 October 2020 139

On 12 October 2020, the Commission launched a public consultation with a view to receiving comments from stakeholders on the ongoing evaluation of the 2010 Motor Vehicle Block Exemption Regulation (“MVBER”) regime. The public consultation aims to collect facts, views and evidence to assist the (...)

Andrzej Kmiecik, Helga Gudmundsdottir The EU Commission publishes a report on the evaluation of the vertical block exemption regulation

8 September 2020 171

On 8 September 2020, the European Commission (“Commission”) published a report on the Evaluation of the Vertical Block Exemption Regulation (the “Evaluation Report”). For further information, see the Legislative, Procedural and Policy Developments section below. The Evaluation Report reflects (...)

Salomé Cisnal De Ugarte, Raphael Fleischer, Maria Sowinska The EU Commission initiates inquiry into the consumer Internet of Things sector

16 July 2020 98

The European Commission (“Commission”) has launched an antitrust sector inquiry into the Internet of Things (“IoT”) sector for consumer-related products and services within the European Union. The Commission is looking to develop a better understanding of how this fast-moving sector works and (...)

Thomas Vinje The EU General Court delivers its first judgment on State aid through tax rulings by annulling the Commission’s decision on the Belgian excess profit ruling system (Magnetrol International)

14 February 2019 78

This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 14 February 2019, the EU General Court annulled the European Commission’s State aid decision relating to the Belgian excess profit ruling system. The (...)

Emily Xueref-Poviac Access to facilities in the energy sector: An overview of EU and national case law

3 May 2018 1329

Stavroula Vryna The EU Court of Justice consolidates view on an effective remedy for the excessive length of proceedings before the General Court in competition cases (Groupe Gascogne)

26 November 2013 689

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 (...)

France

Amélie Lavenir The French Court of Appeal overturns the Competition Authority’s €444M fine on three laboratories for abuse of collective dominance in the pharma sector through a disparaging campaign against an "off-label" competitor (Novartis / Roche / Genentech)

16 February 2023 825

The Court of Appeal quashed the French Competition Authority’s decision fining Novartis, Roche and Genentech EUR 444 million for abusing their collective dominant position, providing welcome clarity on the legal test to assess communications by pharmaceutical companies to the public and to (...)

Margot Vogels, Andrzej Kmiecik, Helga Gudmundsdottir The Paris Court of Appeal upholds the dismissal of a French car repairers’ complaints against a car manufacturer’s alleged discrimination in determining membership of its authorised repair network (Hyundai)

4 June 2020 197

On 4 June 2020, the Competition Chamber of the Paris Court of Appeal (the “Court”) handed down a judgment dismissing the appeal filed by three car repairers (the “Claimants”) against a decision of the French Competition Authority (the “FCA”) to reject their complaint against Hyundai Motor (...)

Georgios Yannouchos, Nicolas Chavonnand Valades The French Administrative Court of Appeal for Nantes annuls a recovery order on the grounds that rights of the defence were infringed by denying the aid beneficiary a right of reply regarding the calculation of recovery order (Vergers de Chateaubourg)

1 June 2018 36

On 16 December 2003, the European Commission (the "Commission") requalified a disposition of the French tax code as an unlawful aid. This disposition, article 44 septies, allowed legal entities incorporated to acquire failing companies active in the industrial sector to be partially exempted (...)

Georgios Yannouchos, Nicolas Chavonnand Valades The French Administrative Court of Appeal for Versailles annuls a recollection title but confirms that the principle of effectiveness prevails over damage claims by a beneficiary of State aid (Groupe Pierre Henry)

25 January 2018 29

Emily Xueref-Poviac The French Competition Authority fines three undertakings for price fixing in the linoleum floor sector and changes its competition compliance policy (Forbo / Tarkett / Gerflor)

18 October 2017 402

Leading French PVC and linoleum floor covering manufacturers, Forbo, Tarkett - both leniency applicants - and Gerflor together with the sector’s trade association have been sanctioned by the French Competition Authority for having implemented anticompetitive practices over more than two (...)

Georgios Yannouchos, Nicolas Chavonnand Valades The French Administrative Court of Appeal for Douai annuls a recovery order by the Competition Authority on the grounds that the rights of the defence were infringed and for lack of motivation (Sté Unither Industries)

1 June 2017 22

Georgios Yannouchos, Antoine Reco The French Administrative Court of Appeal for Bordeaux dismisses an appeal which sought to claim that a recovery order was unlawful because it reversed the burden of proof (Société coopérative agricole de Vergt Socave)

5 April 2017 33

In 1992, France introduced an aid scheme to support the fruit and vegetable sector, comprising measures aimed at facilitating the marketing of agricultural products harvested in France, particularly in period of crisis. The aid was paid to farmers’ organizations; the latter allocating a (...)

Georgios Yannouchos, Ana Hergouth The French Supreme Court considers the recovery of State aid impossible if the collective procedure deadlines have passed (Trésorerie générale du Jura)

26 February 2013 30

On 16 December 2003, the European Commission (’Commission’) identified a French tax exemption scheme as illegal state aid, ordering France to recover it. This disposition, article 44 septies, allowed legal entities incorporated to acquire failing companies active in the industrial sector to be (...)

Georgios Yannouchos, Ana Hergouth The French Supreme Court considers the recovery of State aid impossible if the collective procedure deadlines have passed (Directeur départemental des finances publiques de la Loire)

11 December 2012 28

Georgios Yannouchos, Nicolas Chavonnand Valades The French Administrative Court of Appeal confirms that principles of legitimate expectations and legal certainty should not prevent State aid recovery (Societe Adiamix)

26 July 2012 31

On 16 December 2003, the European Commission (the ’Commission’) requalified a disposition of the French tax code as an unlawful aid. This disposition, article 44 septies, allowed legal entities incorporated to acquire failing companies active in the industrial sector to be partially exempted (...)

Georgios Yannouchos, Ana Hergouth The French Council of State concludes that contribution to public electricity service does not constitute integral part of state aid (SNC Stop Hotel Villeneuve D’Ascq)

9 November 2011 25

The company SNC Stop Hotel Villeneuve D’Ascq (Stop Hotel) has asked the French Energy Regulatory Commission (’CRE’) to reimburse a part of its tax contribution to the public service for electricity (contribution au service public de l’électricité) (’CSPE’), arguing that it constitutes state (...)

Germany

Lars Mesenbrink, Julius Schradin The German Parliament increases turnover thresholds for merger control with the 10th amendment of the Act against Restraints of Competition

19 January 2021 158

In a Nutshell What’s new? Significantly increased turnover thresholds for German merger control. The good Many transactions will no longer be subject to German merger control. This will lead to a much smoother process for lots of transactions, specifically for clients in the tech sector and (...)

Lars Mesenbrink, Julius Schradin The German Parliament passes its 10th amendment to the Competition Act which creates an enforcement tool for the Competition Authority to control the abusive behavior of companies with a paramount cross-market significance for competition

19 January 2021 134

New enforcement tool for the German Federal Cartel Office in the control of abusive behavior of companies with a paramount cross-market significance for competition In a nutshell: What’s new? Introduction of the Concept of Intermediation Power: A dominant position can as of now also result (...)

Lars Mesenbrink, Jay Jurata, Julius Schradin The Regional Court of Düsseldorf questions the EU Court of Justice on SEPs licensing in supply chains (Nokia / Daimler)

26 November 2020 242

In a decision of November 26, 2020 in a patent infringement case of Nokia Technologies Oy against Daimler AG, the Düsseldorf Regional Court (file number 4c O 17/19) referred several questions to the European Court of Justice (ECJ) regarding the licensing of standard essential patents (SEPs) (...)

Lars Mesenbrink, Julius Schradin, Jay Jurata The German Regional Court of Düsseldorf refers several questions to the EU Court of Justice regarding the licensing of standard essential patents within multi-level supply chains (Nokia / Daimler)

26 November 2020 45

This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In a decision of November 26, 2020, in a patent infringement case of Nokia Technologies Oy against Daimler AG, the Düsseldorf Regional Court (file number 4c O (...)

Hungary

Andrzej Kmiecik, Gábor Báthory, Helga Gudmundsdottir The Hungarian Competition Authority fines a brewery for failing to comply with reporting obligations under commitments to limit exclusivity contracts (Heineken)

21 October 2020 116

By decision of 19 October 2020, the Hungarian Competition Authority (“GVH”) imposed a fine of HUF 75 million (approximately € 250,000) on beer maker Heineken for failing to comply with its reporting obligations under its commitments to reduce the amount of beer sold under exclusivity (...)

Italy

Luciano Di Via The Italian government introduces a pre-notification procedure in the Italian foreign investment screening regime

24 September 2022 235

The Italian government has (finally) introduced a prenotification procedure in the Italian investment screening mechanism, which allows companies to obtain a preliminary assessment on the applicability of the Italian Golden Power regulation to proposed transactions Background The Italian (...)

Luciano Di Via The Italian Government adopts the decree implementing the 2014 directive governing actions for damages

19 January 2017 268

Italy now has legislation allowing legal actions to seek compensation for damages caused by violations of anti-competition law, starting from 3 February 2017 when Legislative Decree no. 3 of 19 January 2017 ("Decree") will come into force. The Decree implements Directive 2014/104/UE and (...)

Enrico Adriano Raffaelli, Michele Curatola The Tribunal of Milan convicts, in the course of proceedings relating to interim measures, the worldwide leader in the production of elastomeric foam products for a below-cost pricing strategy (L’Isolante K-Flex / Armacell)

1 April 2010 1420

L’Isolante K-Flex S.r.l., the Italian market leader in the production of specialized and customized elastomeric foam products, filed a request for interim relief before the Tribunal of Milan claiming that its direct competitor, Armacell International GmbH, abused its dominant position in the (...)

Japan

Machiko Ishii The Japanese FTC publishes Green Guidelines concerning the activities of corporate enterprises and other organisations in pursuit of the realization of a green society

31 March 2023 48

In line with Japan’s greenhouse gas emissions goals, the Green Guidelines provide more than 70 case examples and explain whether various activities to achieve a green society raise any antitrust issues. On 31 March 2023, the Japan Fair Trade Commission (JFTC) published guidelines concerning (...)

Poland

Marcin Bartnicki The Polish NCA conditionally clears a merger in the sector of operation of movie theatres (Multikino / Silver Screen)

20 June 2008 2200

The operation In the decision of 20.06.2008, the President of the OCCP cleared the takeover of control of Silver Screen, an operator of movie theatres, by its competitor Multikino. The market(s) The relevant product markets of the concentration are the market of operation of movie (...)

Marcin Bartnicki The Polish Competition Authority clears a merger in the retail distribution sector with remedies, including stores divestiture (Carrefour/Ahold)

28 June 2007 2149

The operation In the decision of 28.06.2007, the President of the OCCP consented to the takeover of Ahold Polska by Carrefour subject to a structural remedy. The market(s) The relevant product market of the concentration is the market of food and non-food retail through modern channels (...)

Marcin Bartnicki The Polish Competition Authority clears a merger on the market of nitrate fertilizers and plastics, subject to a divestment remedy (Nafta Polska / Tarnów-Mościce / Zachem)

20 April 2005 3998

The operation On 20 April 2005 the President of the OCCP cleared the acquisition of direct control over four Polish chemical plants by Nafta Polska S.A. by way of an acquisition of 80% of the shares in each of the plants. The transaction is a part of a government restructuring programme of (...)

Marcin Bartnicki The Polish Competition Authority clears a merger in the pharmaceuticals sector, subject to a divestment remedy (Sanofi-Synthelabo / Aventis)

18 May 2004 2551

The operation The acquisition of Aventis by Sanofi-Synthelabo was performed by a public bid. The President of the OCCP, on 18 May 2004, cleared the merger, which led to the establishment of one of the largest pharmaceutical groups in the world (pages 3-5). The market(s) The President of (...)

Marcin Bartnicki The Polish Competition Authority clears a merger in the municipal services sector subject to a divestment remedy (Rethmann Recycling/Lobbe)

6 March 2003 1907

The operation On 6 March 2003 the President of the OCCP cleared the take-over of the Lobbe Group by Rethmann Recycling. In effect of the concentration Reithmann Recycling acquired all of the shares of the companies belonging to the Lobbe Group and expanded its commercial activity. (pages (...)

Marcin Bartnicki The Polish Competition Authority clears a merger in the ready-mix concrete and construction elements markets subject to a prohibition to increase market share (Cementownia Ożarów / Faelbud)

5 February 2003 2130

The operation In the decision of 5.02.2003 the President changed his decision of 14.08.1998 (RLU-23/98) prohibiting the concentration. The new decision cleared the concentration subject to a behavioural remedy. The market(s) The relevant product markets are the ready-mix concrete (...)

Romania

Bruno Leroy, Eleonora Udroiu The Romanian Competition Council clears a merger on the sugar confectionery market while accepting inter alia non-exclusive distribution commitment (Kandia/Kraft Group)

28 March 2007 6950

The Romanian Competition Council has recently cleared a concentration carried out on the Romanian sugar confectionery market (Decision n° 10/2007). This concentration occurred further to the purchase by Kandia - Excelent SA (“Kandia”), from companies belonging to Kraft Group, of two (...)

Bruno Leroy, Eleonora Udroiu The Romanian High Court quashes a NCA’s decision having imposed a 27 M euro fine for price fixing practices for insufficient proof on the basis, inter alia, of ECJ case law

5 March 2007 5229

The Romanian High Court of Cassation and Justice has recently made an application of the principles governing the burden and the level of proof in antitrust cases, overturning decision n° 94/2005 of the Romanian Competition Council as regards the sanction inflicted to one of the undertakings (...)

Bruno Leroy, Eleonora Udroiu The Romanian Competition Authority heavily fines low prices and market sharing on the cable TV market (UPC / Hi-Fi Quadral / Astral Telecom / Cablevision)

12 December 2006 4409

The Cable TV Decision (decision n° 237/2006 - the “Decision”) was rendered by the Romanian Competition Council on 12 December 2006, at the end of Romania’s pre-accession period. The thorough analysis included in the Decision may be regarded as evidence that the Council has reached a high level (...)

Russia

Torsten Syrbe The Russian Competition Authority clears a merger in the tires market subject to remedies, including a requirement to establish direct contractual relationships with customers (OAO Amtel-Vredestein / Sibur Holding)

15 July 2008 1912

The operation The petrochemical company OAO "SIBUR Holding" (“Acquirer”) applied for clearance of the acquisition of indirect control over the entire voting capital of OAO “Amtel Vredestein” (“Target”) as a result of a reverse acquisition of a controlling stake in Amtel Vredestein N.V. The (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the retail distribution sector subject to numerous behavioural remedies (Rusel / X5 Retail Group)

30 April 2008 2150

The operation The retail company X5 Retail Group N.V. ("Acquirer") applied for clearance of its proposed acquisition of indirect control over the retail group OOO "Rusel" ("Target") through acquisition of 100% in Formata Holding B.V. The market The transaction related to the retail (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the electric boiler market subject to remedies, including commitment not to decrease or cease the target’s production (Evan / Nibe Industrier)

18 April 2008 2336

The operation The Swedish manufacturer of electric heating applications Nibe Industrier AB (“Acquirer”) applied for clearance of the acquisition of indirect control over ZAO "EVAN" (“Target”) through acquisition of the Swedish holding company Russian Boilers Holdings AB. The market The (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the heat supply services sector subject to remedies, including access to pipeline networks and other essential facilities (Tverskaya teplosnabzhayushaya kompaniya / Rossiyskie kommunalnye sistemy)

18 April 2008 2190

The operation The utilities provider OAO "Rossiyskie kommunalnye sistemy" (“Acquirer”) requested clearance for the acquisition of the entire voting capital of OOO "Tverskaya teplosnabzhayushaya kompaniya" (“Target”) a provider of pipeline network services for heat supply in the region of (...)

Torsten Syrbe The Russian NCA cleared a merger in the personal insurance sector subject to remedies, including notification of future cooperation agreements (TechAtomProm / Assicurazioni Generali)

7 April 2008 2587

The operation The Italian insurance group Assicurazioni Generali S.p.A. (“Acquirer”) applied for clearance of its proposed acquisition of indirect control over the Russian insurance company OOO "TechAtomProm" (“Target”). The market The transaction related to the personal insurance (...)

Torsten Syrbe The Russian NCA clears a merger in the insurance market subject to remedies, including transfer of specific target’s insurance portfolios to third parties (KS-Holding/Sineron Holdings)

2 April 2008 2580

The operation The insurance company Sineron Holdings Limited (“Acquirer”) applied for clearance of its proposed acquisition of the entire voting capital in the insurance company ZAO "KS-Holding" (“Target”). The market The transaction related to the insurance markets for personal (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the beer sector with behavioural remedies, including notification on future price increase (Baltic Beverages / Carlsberg)

13 March 2008 2034

The operation The brewing company Carlsberg A/S (“Acquirer”) applied for clearance to acquire indirect control over the Russian brewing compay OAO "Pivovarennaya kompaniya Baltika" (“Target”) through acquisition of a 50% stake in Baltic Beverages Holding AG. The market The transaction (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the electric sector subject to remedies, including the divestiture of a power plant (KES-Holding /Volzhskaya TGK)

29 February 2008 3919

The operation The investment holding company OOO "KES-Holding" (¡°Acquirer¡±) applied for clearance of its proposed acquisition of the entire voting capital of the electricity and heat power supplier OAO "Volzhskaya TGK" (¡°Target¡±). The market The transaction related to the supply of (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the aluminum cans and caps market with remedies, including an investment obligation of EUR 690 M in the target’s production facilities (Rostar-Vsevolzhsk / Rexam Beverage Can)

16 January 2008 2608

The operation The aluminium packaging manufacturer Rexam Beverage Can Holdings B.V. ("Acquirer") applied for clearance of the proposed acquisition of the entire voting capital of the aluminium can and cap manufacturers OOO "Rostar" and OOO "Rostar-Vsevolzhsk". ("Target") The market The (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the aluminum and bauxite sectors with remedies, including margin cap based on the London Metal Exchange price (Rusal / Target)

14 February 2007 2170

The operation The holding company United Company RUSAL Limited ("Acquirer") applied for clearance of its acquisition of the entire voting capital in Rusal Limited and Sual International Ltd ("Target") as a result of which RUSAL, SUAL and Glencore intended to create the world’s largest (...)

Torsten Syrbe The Russian Competition Authority clears a merger in the banking sector subject to remedies (Promyshlenno-Stroitelny bank / Vneshtorgbank)

9 December 2005 2081

The operation The Russian bank OAO "Vneshtorgbank" ("Acquirer") applied for clearance of its proposed acquisition of the entire voting capital in OAO "Promyshlenno-stroitelny bank" ("Target"). The market The transaction related to the market for bank services in the Smolenskaya region (...)

Spain

Maria Begoña Barrantes Díaz The Spanish Competition Authority imposes gun jumping fines on two funeral service providers for failing to notify transactions meeting the requisite market share threshold (Albia / Funespana)

21 April 2022 63

Companies should be cautious and carry out reasonable assessments prior to disregarding the need to notify a transaction based on the Spanish market share threshold Concentrations of business operations leading to a market share of 30% or more (or of 50% or more where the target’s Spanish (...)

Belén Irissarry, Rais Amils The Spanish Commercial Court no. 07 of Barcelona rules that a truck manufacturer and its distributor are jointly liable for the damage caused in accordance with the old regime of the Civil Code and the new regime (Trucks Cartel / CNH Industrial)

12 September 2019 39

Brief summary of facts The claimant argued that, because of the cartel of truck manufacturers, the price paid to the defendant for a truck was higher than it should have been. He calculated that this surplus was 20% of the acquisition price. Brief summary of judgment The action was filed (...)

Belén Irissarry, Rais Amils The Spanish Court of Appeals in Murcia confirms that the defendant in a case opposing manufacturers of motor vehicles lacks legal standing (Trucks Cartel / Man Services España)

20 June 2019 38

Brief summary of facts The European Commission sanctioned a European trucks cartel in 2016. The Commercial Court n°1 of Murcia concluded that the defendant lacked legal standing because it had not been identified in the Commission Decision and it had not been proven that the defendant (...)

Belén Irissarry, Rais Amils The Spanish Supreme Court rules on territorial competence case using rules applicable in the framework of unfair competition in reference to EU competition law (Trucks Cartel / Man Services España)

26 February 2019 31

Brief summary of facts A procedural issue arised during damages claims procedure following the European Commission’s decision to sanction trucks manufacturers for breach of Article 101 (1) TFEU. Indeed, a territorial conflict between three Commercial Courts was to be decided: Valladolid (...)

Belén Irissarry, Rais Amils The Spanish Commercial Court of Barcelona rules that the liability of the parent company does not transfer to the defendant subsidiary (Sumal / Mercedes-Benz Trucks)

23 January 2019 19

Brief summary of facts The European Commission sanctioned a European trucks cartel in 2016. The claimant, an indirect customer, argued that, because of the cartel of truck manufacturers, the price paid to the distributor company Stern Motor SL for two trucks of the Daimler Group was higher (...)

Belén Irissarry, Rais Amils The Spanish Commercial Court of Barcelona declares that an envelope cartel caused damage to claimants by charging increased prices (Mutua Madrileña Automovilista / Sociedad de Seguros A Prima Fija / Tompla Industria Internacional del Sobre / Tompla Sobre Expres / Printeos / Maespa Manipulados...)

10 September 2018 23

Brief summary of facts Several producers and distributors of envelopes were fined by the Spanish competition authority for price fixing and customer allocation. The claimant has been Adveo and Tompla’s client for 5 years. It claims the overprice paid as a consequence of the infringement. (...)

Belén Irissarry, Rais Amils The Spanish Commercial Court of Barcelona rules that an envelope cartel caused damage to the claimant (CIFDSA / Antalis Internacional / Envel Europa / Tompla Industria Internacional del Sobre / Tompla Sobre Expres / Printeos...)

5 September 2018 22

Brief summary of facts Several producers and distributors of envelopes were fined by the Spanish competition authority for price fixing and customer allocation. The claimant has been Envel and Tompla’s client between 2002 and 2010. It claims that the overprice paid was a consequence of the (...)

Belén Irissarry, Rais Amils The Spanish Commercial Court of Barcelona determines that damage was caused to the claimant in a case against cartelists operating in the market for envelope manufacturing (Misiones Salesianas / Antalis Internacional / Envel Europa / Tompla Industria Internacional del Sobre / Tompla Sobre Expres / Printeos...)

4 September 2018 23

Brief summary of facts Several producers and distributors of envelopes were fined by the Spanish competition authority for price fixing and customer allocation. The claimant has been Envel and Group Tompla’s client between 1987 and 2009. It claims that the overprice paid was a consequence of (...)

Belén Irissarry, Rais Amils The Spanish Commercial Court of Barcelona rules that an envelope cartel harmed a claimant (Cortefiel / Antalis / Envel / Tompla / Adveo)

6 July 2018 22

Brief summary of facts Several producers and distributors of envelopes were fined by the Spanish competition authority for price fixing and customer allocation. The claimant claimed for damages (payment of surcharges) resulting from the infringement. Brief summary of judgment The court (...)

Belén Irissarry, Rais Amils The Spanish Commercial Court of Madrid dismisses an action for damages against participants in an envelope cartel on the grounds that the claimant did not adequately prove damage (Obras Misioneras Pontificias / Envel Europa / Tompla Industria Internacional del Sobre / Tompla Sobre Expres / Printeos / Hispapel / Maespa Manipulados...)

8 June 2018 36

Brief summary of facts Several producers and distributors of envelopes were fined by the Spanish competition authority for price fixing and customer allocation. The claimant has been a client of the cartel from 1999 to 2010. It claims that the overprice paid was a consequence of the (...)

Belén Irissarry, Rais Amils The Commercial Court of Barcelona renders judgment in a follow-on suit against a cartel in the envelopes market (Bankoa / Envel / Printeos...)

6 June 2018 19

Brief summary of facts Several producers and distributors of envelopes were fined by the Spanish competition authority for price fixing and customer allocation. The claimant claims the damages caused as a consequence of the competition infringement sanctioned by the CNMC. Brief summary of (...)

Belén Irissarry The Spanish Court of Appeal, Madrid awards €2.9M damages to a claimant who suffered a loss as a result of the cartel arrangements in the property insurance market (Musaat / Caser / Asefa / Scor)

3 July 2017 19

Brief summary of facts Several companies active in the property insurance market were condemned by the Spanish Competition Authority for their participation in a cartel. After the decision was final, Musaat claimed damages against some of these companies (Caser, Asefa and Scor). Brief (...)

United Kingdom

Nissim Massarano The UK Government launches a review of the scope of the National Security and Investment regime to add clarity and certainty

13 November 2023 60

On 13 November 2023, the UK Government launched a "Call for Evidence" on whether there should be updates to the UK National Security and Investment Act ("NSIA") regime (the press release is here). For the most part, the Call for Evidence indicates a desire to reduce the scope of the regime, as (...)

Nissim Massarano, Dani Rabinowitz The UK Competition Appeal Tribunal hears the first case under the Subsidy Control Act (Durham Company / Durham County Council)

27 July 2023 105

In the first case heard by the UK’s Competition Appeal Tribunal (CAT) under the Subsidy Control Act 2022 (SCA), the CAT has thrown into doubt the notion of "cross-subsidisation" and has shown itself willing to take its own UK-focussed approach to subsidy control law. Under the SCA, a person (...)

Jennifer Storey, Nissim Massarano The UK Cabinet Office publishes the annual report on the operation of the National Security and Investment regime

11 July 2023 111

On 11 July 2023, the UK’s Investment Security Unit ("ISU") released its annual report on the operation of the UK National Security and Investment ("NSIA") regime for the period covering 1 April 2022 – 31 March 2023 (here). The Annual Report provides aggregated data on the operation of the (...)

Jennifer Storey, Aniko Adam The UK Government publishes updated market guidance

27 April 2023 113

The UK Government has published updated Market Guidance which provides some useful additional information on how the Government will exercise its powers under the NSI Act. The UK Government has published updated Market Guidance on the National Security and Investment Act 2021 ("NSI Act") (...)

Greg Olsen, Luke Tolaini The UK Competition Appeal Tribunal finds that the Competition Authority cannot compel responses to information requests from foreign parents with no UK connection (Volkswagen / BMW)

8 February 2023 518

The UK Competition Appeal Tribunal (CAT) has ruled that the Competition and Markets Authority (CMA) has no power to compel responses to information requests from foreign parent companies with no connection to the UK, other than their UK-based subsidiaries. Foreign foray frustrated In its (...)

Nissim Massarano, Dani Rabinowitz The UK Parliament announces a new Subsidy Control Act

20 October 2022 136

From 4 January 2023, certain UK subsidies must be notified to the Competition and Market Authority’s Subsidy Advice Unit, and subsidy decisions by UK public authorities can be appealed to the UK’s Competition Appeal Tribunal. On 20 October 2022, the UK Government announced (related article) (...)

Nissim Massarano The UK Competition Appeal Tribunal overturns the Competition Authority’s wide "Most Favoured Nation" decision (ComparetheMarket)

8 August 2022 487

Background In November 2020, the CMA issued a Decision against CTM and imposed a c. £18m penalty. The Decision took issue with contractual obligations known as wide most favoured nation clauses (wide MFNs), which were imposed by CTM in its agreements with certain home insurers. These clauses (...)

Aniko Adam, Charles Cochrane, Katherine Ellis, Sue Hinchliffe, Nelson Jung, Alex Nourry, Greg Olsen, James Pay, Jennifer Storey The UK Department for Business, Energy and Industrial Strategy blocks the acquisition of intellectual property relating to vision sensing technology by a Chinese company (Beijing Infinite Vision Technology / University of Manchester)

20 July 2022 31

The Department for Business, Energy & Industrial Strategy ("BEIS") has published a suite of new market guidance as well as an Annual Report, providing increased clarity on the UK’s national security and investment regime and insights into how it is working in practice. THE NATIONAL (...)

Aniko Adam, nhi nguyen The UK Government publishes new market guidance notes in relation to the National Security and Investment Act

19 July 2022 132

On 19 July 2022, the UK Department for Business, Energy & Industrial Strategy ("BEIS") published new market guidance notes in relation to the National Security and Investment Act 2021 (the "NSIA"). BEIS’ market guidance notes provide acquirers and their legal representatives with advice (...)

Aniko Adam, Charles Cochrane, Katherine Ellis, Sue Hinchliffe, Nelson Jung, Alex Nourry, Greg Olsen, James Pay, Jennifer Storey The UK Department for Business, Energy and Industrial Strategy imposes landmark conditions on the acquisition of a British telecoms provider to protect sensitive information and technology and provide assurance in the emergency services network (Sepura / Epiris)

14 July 2022 41

United States of America

Renée Latour, Damely Perez Wadskier The US Senate passes an amendment that requires a notification to the Secretary of the Treasury if a US person is engaged in a "covered activity" related to a "covered sector" and when the activity occurs in a "country of concern" or involves a "covered foreign entity"

25 July 2023 197

I. Introduction On July 25, 2023, the US Senate passed an amendment (SA 931) as part of the broader National Defense Authorization Act (NDAA) that authorizes appropriations for fiscal year 2024 for military activities by the Department of Defense, among other things. This Senate Amendment (...)

Brian Concklin, Timothy Lyons The US District Court for the District of Connecticut acquits six aerospace executives in a no-poach antitrust criminal prosecution (Mahesh Patel / Robert Harvey / Harpreet Wasan / Steven Houghtaling / Tom Edwards / Gary Prus)

28 April 2023 178

US Department of Justice Faces Additional Setback in Criminal Antitrust Labour-Market Prosecutions* A recent acquittal in a criminal antitrust case marks another setback to the US Department of Justice’s effort to use criminal prosecutions to address alleged anticompetitive conduct in labour (...)

Jordan Passmore, Sung Shin The US FTC proposes a rule that would prohibit employers from having their employees sign any form of noncompete agreements

4 January 2023 68

The FTC proposed a rule that departs from decades of legal precedent and ignores procompetitive justifications by looking to ban noncompetes in almost every situation. On January 5, 2023, the Federal Trade Commission published a Notice of Proposed Rulemaking that would prohibit employers (...)

Chuck Loughlin, Leigh Oliver The US FTC establishes broad policy to require prior approval provisions in all merger divestiture orders

25 October 2021 180

On 25 October, the FTC released a Statement on the Use of Prior Approval Provisions in Merger Orders (Prior Approval Statement) making clear that the agency intends to include in all divestiture orders a requirement that the merging parties obtain prior approval from the FTC before closing any (...)

Robert (Bob) F. Leibenluft, Leigh Oliver, Jonathan Elsasser The US FTC initiates proceedings against two hospitals to prevent their proposed merger (Hackensack Meridian Health / Englewood Healthcare)

4 August 2021 156

On 4 August 2021, the District Court of New Jersey granted the Federal Trade Commission’s (FTC) motion for preliminary injunction, preventing Hackensack Meridian Health (HMH) and Englewood Healthcare (Englewood) from closing their proposed merger pending an administrative trial before an FTC (...)

Arjun Garg, David Horowitz, Kevin Sheys, Chuck Loughlin, Edith Ramirez, Logan Breed, Leigh Oliver The US President Joe Biden issues sweeping executive order targeting corporate consolidation and anticompetitive activity in the labor, financial services, healthcare, transportation, telecommunications, agricultural, and tech markets

9 July 2021 748

On 9 July 2021 President Biden signed a far-reaching executive order intended to promote competition in the American economy. The order targets perceived corporate consolidation and anticompetitive activity in the labor, financial services, health care, transportation, telecommunications, (...)

Leigh Oliver, Jonathan Elsasser The US President Joe Biden signs an executive order on promoting competition in the American healthcare system

9 July 2021 213

On 9 July 2021, President Biden signed an Executive Order on Promoting Competition in the American Economy (“EO”) that takes aim, in part, at the healthcare industry. Although the EO is intended to promote competition across several industries, it affirms the Biden Administration’s policy of (...)

William Lavery, Christine M. Ryu-Naya, Christopher Wilson The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling regarding an unlawful pay-for-delay agreement in the pharmaceutical sector (Endo / Impax)

13 April 2021 833

On April 13, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Federal Trade Commission’s (“FTC” or “Commission”) ruling that the “reverse-payment” settlement agreement between Endo Pharmaceuticals Inc. (“Endo”) and Impax Laboratories LLC (“Impax”) violated federal antitrust (...)

Joseph Ostoyich, Jana I. Seidl The US Court of Appeals for the Fourth Circuit upholds the first divestiture order in an antitrust suit brought by a private party challenging a merger, years after the transaction, in the door manufacturing sector (Steves & Sons / Jeld-Wen / CMI)

18 February 2021 208

On February 18, 2021, the U.S. Court of Appeals for the Fourth Circuit upheld the first divestiture order in an antitrust suit brought by a private plaintiff which challenged its rival’s acquisition four years after the transaction. Post-consummation merger challenges are rare and—until (...)

Alex Bourelly, Heather Souder Choi, Joseph Ostoyich, Natalia Sorgente, Caroline Jones The US DoJ Assistant Attorney General Makan Delrahim confirms the opening of two dozen active grand jury investigations into potential criminal antitrust law violations

16 September 2020 106

Clients that do business with the federal government should take note: despite the pandemic and the upcoming election, the U.S. Department of Justice (“DOJ”) continues to prioritize its focus on punishing fraudulent and anticompetitive conduct by government contractors, carrying out dozens of (...)

Alex Bourelly, Anne Carpenter, Caroline Jones, Natalia Sorgente, Heather Souder Choi, Joseph Ostoyich The US DoJ confirms it has opened multiple new criminal investigations with its Procurement Collusion Strike Force

19 February 2020 161

A senior official at the U.S. Department of Justice (“DOJ”) recently confirmed that the Antitrust Division has opened multiple grand jury investigations in connection with the Procurement Collusion Strike Force (“Strike Force”) formed in November of last year. Speaking at a conference on (...)

Alex Bourelly, Joseph Ostoyich, Heather Souder Choi, Caroline Jones The US DoJ indicts a third individual for bid-rigging in online auctions for surplus government equipment (GSA Auctions / Alan Gaines)

5 February 2020 139

On February 5, 2020, the Antitrust Division of the U.S. Department of Justice (“DOJ”) announced the indictment of a Missouri man – the third individual to be charged – for participation in a conspiracy to rig bids submitted to the General Services Administration (“GSA”) at online auctions for (...)

Heather Souder Choi, Joseph Ostoyich, Caroline Jones The US DoJ forms new criminal antitrust “strike force” focused on investigating price-fixing and bid-rigging for government contracts

5 November 2019 205

On November 5, 2019, the U.S. Department of Justice (“DOJ”) announced the creation of a new “strike force” designed to combat criminal antitrust violations in the government procurement process. The newly-formed Procurement Collusion Strike Force (“PCSF”) will include prosecutors from DOJ’s (...)

Peter Huston, Joseph Ostoyich, Scott Keller, Christopher Wilson The US Supreme Court increases the risk that online marketplaces with exclusive rights to third-party products will not have a defense under the “indirect purchaser” doctrine (Apple / Pepper)

13 May 2019 79

On May 13, 2019, the U.S. Supreme Court issued a major antitrust decision in Apple v. Pepper, which could have far-reaching implications for retailers and platforms accused of monopolistic conduct. For example, the case increases the risk that any online marketplace with exclusive rights to (...)

Sharis Pozen The US Supreme court reaffirms the "direct purchaser" rule for private claims under federal antitrust laws but also allows for monopolization claims against a mobile app store owner (Apple / Pepper)

13 May 2019 68

This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On May 13, 2019, the U.S. Supreme Court reaffirmed that private claims under the federal antitrust laws cannot be brought by "indirect purchasers" who did not (...)

Timothy Cornell The US FTC announces the creation of a new task force to scrutinize competition in the tech industry

26 February 2019 56

This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On February 26, 2019, the US Federal Trade Commission’s (“FTC”) Bureau of Competition—the arm through which the FTC enforces US federal antitrust (...)

Adam Dec, Joseph Ostoyich The US District Court for the Northern District of California renders a criminal sentence to a real estate investor for bid-rigging (Michael Marr)

21 March 2018 84

On March 21, 2018, the Chief Judge for the United States District Court for the Northern District of California sentenced Michael Marr to serve 30 months in federal prison and pay $1.4 million for his conviction on bid-rigging in violation of the Sherman Act, 15 U.S.C. § 1. Marr was indicted (...)

Nathan Chubb, John Taladay, Stephen Weissman, Joseph Ostoyich The US Court of Appeals for the Third Circuit rejects antitrust claims predicated on a supplier’s market-share discount program and other promotional tactics (Eisai / Sanofi)

4 May 2016 106

On May 4, 2016, the U.S. Court of Appeals for the Third Circuit announced its decision in Eisai, Inc. v. Sanofi Aventis U.S., LLC, rejecting antitrust claims predicated on a supplier’s market-share discount program and other promotional tactics. While the court’s decision adds some definition (...)

John Taladay, Joseph Ostoyich The US President publishes an executive order to further promote competitive conditions and root out antitrust abuses in industries across the American economy

15 April 2016 86

Last week, President Obama issued an Executive Order ostensibly designed to further promote competitive conditions and root out antitrust abuses in industries across the American economy, including the healthcare, energy, and broadband industries which were specifically identified in the (...)

Clifford H. Aronson, Sharis Pozen, Steven C. Sunshine The US Court of Appeals for the Sixth Circuit confirms the decision of the FTC regarding a merger in the healthcare sector (ProMedica)

22 April 2014 261

On April 22, 2014, the United States Court of Appeals for the Sixth Circuit handed the Federal Trade Commission (FTC or Commission) another significant victory in a hospital merger, ruling that the FTC’s decision and order requiring that ProMedica divest St. Luke’s, another Lucas County, (...)

Ian G. John, Karen M. Lent, Neal R. Stoll, Sharis Pozen The US FTC settles illegal information exchange allegations with hair restoration company (Bosley)

8 April 2013 420

On April 8, 2013, the Federal Trade Commission (FTC) announced a proposed settlement with hair restoration company Bosley, Inc. to resolve allegations that Bosley illegally exchanged competitively sensitive, nonpublic business information with competitor HC (USA), Inc., commonly known as Hair (...)

Alec Y. Chang, Clifford H. Aronson, Joanna Warren, Sharis Pozen The US Supreme Court narrows "State-Action" doctrine in hospital merger challenged by the US FTC (Phoebe Putney)

19 February 2013 363

In a unanimous decision issued on February 19, 2013, the U.S. Supreme Court ruled that the state-action doctrine did not immunize Phoebe Putney Health System’s acquisition of Palmyra Park Hospital in Albany, Georgia. The decision immediately was hailed by FTC Chairman Jon Leibowitz as "a big (...)

Alec Y. Chang, Matthew P. Hendrickson, Sean M. Tepe, Sharis Pozen, Steven C. Sunshine The US FTC closes its investigation and approves the voluntary commitment of an internet search engine (Google)

3 January 2013 266

This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Thoughts On Google’s FTC Settlement On Jan. 3, 2013, the Federal Trade Commission ended its highly publicized and wide-ranging investigation into Google (...)