University Paris II Panthéon‑Assas

Dominique Berlin

University Paris II Panthéon‑Assas
Professor

Dominique Berlin’s experience in European and Administrative law is extensive. He counsels EC antitrust and merger control cases, as well as advises public bodies and companies in proceedings of European control of state aids. His experience also includes advising companies in various anti-dumping cases before the EC Commission and in various customs cases related to the application of conventions between EU and third countries, or the Community Customs Code. Professor Berlin counseled governmental bodies and/or public enterprises during the French privatization processes of 1986 and 1993, and he has advised banks and financial institutions regarding the problem of guarantees for the financing of public infrastructure in the public domain. He provides general advice on regulatory matters, especially for issues of liberalization in certain sectors such as the telecommunications, postal, transport, and power industries.

Linked authors

London School of Economics
European Commission - DG MOVE
Ministère des Affaires étrangères français
Bonelli Erede (Brussels)
French State Council (Paris)
European Court of Justice (Luxembourg)

Articles

18251 Review

Dominique Berlin Phase I décision: The European Commission approves the acquisition of sole control of a Bermuda company by a Netherlands based company, subject to divestment of the latter’s radio frequency power business, where the takeover could have led to higher prices and less competition (NXP Semiconductors, Freescale Semiconductor)

129

The transaction consisted in the acquisition of sole control of Freescale Semiconductor (hereinafter ’Freescale’), a Bermuda-based company, by NXP Semiconductors N.V. (’NXP’) based in the Netherlands. In fact, it was through a sub-subsidiary that NXP had acquired the entire share capital of (...)

Dominique Berlin Regulation 139/2004: The Court of Justice of the European Union increasingly refers to merger notions and logic in cartel litigations (Sociedad de Gestión y Participación, De Nederlandsche Bank NV ; De Nederlandsche Bank, Sociedad de Gestión y Participación, Samsung SDI, Toshiba)

234

Although the period under review did not give the Union judge the opportunity to rule on a merger decision, we take this opportunity to illustrate the "magistracy of influence" of merger law, and more particularly of its basic regulation 139/2004, on antitrust law. Merger control in the (...)

Dominique Berlin Phase II decision: The European Commission conditionally approves the creation of a joint venture for multi-territorial online music licensing and copyright administration services by three music collecting societies (PRSfM, STIM, GEMA, JV)

258

Three national music collecting societies, PRS for Music Limited (PRSfM, United Kingdom), Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (STIM, Sweden), and Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA, Germany) had notified the Commission (...)

Dominique Berlin Air transport : The General Court of the European Union dismisses an appeal against the decision clearing the acquisition of the largest Austrian airline company by a German national company (Niki Luftfahrt)

189

(see also, "Help" columns, this issue, obs. R. V.) On 13 May 2015 the General Court delivered its judgment in Case T-162/10 Niki Luftfahrt GmbH v Commission dismissing the action for annulment brought by the applicant against the Commission’s decision of 28 August 2009 approving the transaction (...)

Dominique Berlin Referral to national authorities : The European Commission decides to refer entirely to the Irish Competition Authority the proposed acquisition of joint control of companies active in the retail sector on the grounds of the sole effect on local competition (Apollo/Fitzwilliam/Wittington/Arnottis)

192

Total referral decisions to national authorities are no longer rare (Commission statistics put the figure at 95 in 2015 from the outset). The commented decision dates back to 2014, but was not published on the Commission’s website until 29 April 2015, without any explanation, as the Commission (...)

Dominique Berlin Phase I - Clearance : The European Commission clears the acquisition of sole control over a British insurance company and its investment subsidiary by a large insurance company (Aviva/Friends Life/Tenet)

205

A concentration with a Community dimension: Negative acquisition of sole control Single takeovers are not uncommon in merger control practice. While not necessarily the most frequent mode of acquiring control, they are the most normal and logical mode. A company acquiring an interest in the (...)

Dominique Berlin Incompatible merger : The General Court of the European Union dismisses the action brought by a Commission’s decision prohibiting the project to merge two major brokerage companies (Deutsche Börse)

304

A prohibited operation Incompatibility decisions are not numerous in the Commission’s practice (according to the statistics as at 31 March 2015, out of 5 796 transactions notified since the beginning of the control, only 24 incompatibility decisions have resulted). The Deutsche Börse - New York (...)

Dominique Berlin Calculation of the fine : The Court of Justice of the European Union rejects the appeal against a judgment of the General Court that upheld a Commission’s decision imposing a €20 million fine on an undertaking for acquiring de facto control over a French electricity operator without having sought prior approval (Electrabel)

222

It may be recalled that on 12 December 2012, the Court of First Instance confirmed the Commission’s decision imposing a fine of €20 million on Electrabel for having acquired sole control of Compagnie Nationale du Rhône (CNR) without prior authorisation from the Commission. For the record, it will (...)

Dominique Berlin Phase I – Conditional clearance : The European Commission conditionally clears the proposed acquisition in the sector of Swedish pulp- and paper-based packaging products manufacturing (Kinnevik c/ Billerud c/Korsnäs)

121

While the original nature of operations involving investment funds was that they never, or hardly ever, posed horizontal or vertical problems, but simply questions relating to conglomerate effects, where problems did exist, this has not been the case for a number of years now. Over time, and (...)

Dominique Berlin Phase I - Conditional clearance : The European Commission clears with commitments the proposed acquisition of the EEA largest salmon processor by the EEA leading salmon farmer (Marine Harvest c/ Morpol)

130

On 30 September 2013, the European Commission approved the acquisition of Morpol, the largest salmon processor in the European Economic Area (EEA), by Marine Harvest, the largest salmon farmer in the EEA, both of Norway. Marine Harvest is a Norwegian company listed on the Oslo Stock Exchange, (...)

Dominique Berlin Phase I - Conditional clearance : The European Commission conditionally clears an acquisition by a healthcare company of a medical technology company (Baxter / Gambro)

168

This is not the first time that the medical sector has been the subject of consolidation and attention by the Commission (to name but a few, see Commission Decisions of 5 October 2011 in Case COMP/M.6091 - Galenica / Fresenius Medical Care / Vifor Fresenius Medical Care Renal Pharma JV or of 8 (...)

Dominique Berlin Commitments: The French Competition Authority conditionally authorizes in phase I an acquisition in the retail sector with particular consideration to local competition (Franprix Leader Price Holding (Group Casino), NFL Distribution)

152

Franprix Leader Price Holding (FLPH), a subsidiary of the Casino Guichard Perrachon Group (Casino), itself France’s third-largest food retailing group (more than 10 000 stores of all sizes), had notified the Authority of the proposed acquisition of sole control of NFL Distribution, whose entire (...)

Dominique Berlin Commitments: The European Commission conditionally clears in phase I an acquisition in the Dutch milk products sector (Frieslandcampina, Zijerveld & Veldhuyzen and den Hollander)

149

This is not the first time that dairy products have been the subject of consolidation and the Commission’s attention (see, inter alia, Decision of 8 August 2001, Case COMP/M.2399, Friesland Coberco/Nutricia, Decision of 10 June 2003, Case COMP/M.3130, Friesland Coberco/Nutricia, Case (...)

Dominique Berlin Appeal: The Court of Justice sets aside the order of the General Court in the same case and, adjudicating on EDF’s application for interim measures, refuses these measures because the appellant has not established that it is likely to sustain serious harm in the absence of the granting of the interim measures sought (EDF)

175

It will be remembered that the Court of First Instance refused to grant EDF the suspension of the Commission’s measure requiring it to fulfil certain commitments within a specified period. The decision of 12 November 2009, Case COMP/M. 5549 (EDF/Segebel) had ordered as a condition of (...)

Dominique Berlin Phase II - Conditional clearance : The European Commission, following an in-depth review, clears with commitments the proposed acquisition on the stainless steel market (Outokumpu c/ INOXUM)

187

This decision is undoubtedly one of the most important, quantitatively (more than 300 pages), issued by the Commission following an in-depth investigation of the stainless steel product markets. The operation itself consisted in bringing together the two largest operators on these markets. (...)

Dominique Berlin Significance of a trustee’s possible lack of independence: The Court of Justice upholds the Judgment of the General Court whereby it annulled the decision of the Commission approving a company as the purchaser of assets to be sold by the acquirer of the whole assets of the seller in the publishing business (Odile Jacob)

218

CJEU (Grde Ch.) of 6 November 2012, cases C-553/10 P and C-554/10 P. Commission v Éditions Odile Jacob We may recall the dispute between Éditions Odile Jacob, the Commission and the Lagardère group over the latter’s sale of certain publishing assets to the Wendel group in 2003. This divestiture (...)

Dominique Berlin Nominee holding agreement – Ineffective grounds: The Court of Justice dismisses the appeal lodged by a competitor against the judgment of the General Court, which dismissed its action for annulment of the Commission decision clearing a concentration in the publishing sector (Odile Jacob)

206

CJEU (Grde Ch.) of 6 November 2012, Case C-551/10 P Éditions Odile Jacob v Commission Following the authorisation of the operation referred to in the previous point, the applicant brought an action before the Court of First Instance in July 2004 for annulment of the compatibility decision (Case (...)

Dominique Berlin Interim measures: The General Court dismisses application for interim measures for lack of urgency, without it being necessary to consider whether the other conditions for granting the interim measures sought are fulfilled in this case (EDF)

142

Orderly. President Trib. UE, 11 Oct. 2012 aff. T-389/12 R, EDF v. Commission By its decision of 12 November 2009 (Case COMP/M. 5549 EDF v Segebel), the Commission had, in its decision of 12 November 2009 (Case COMP/M. 5549 EDF v Segebel) authorised on the basis of Article 6(1)(b) and (2) of (...)

Dominique Berlin Decision - Suspension of concentration: The European Commission grants a derogation from the obligation of suspension pursuant article 7 § 3 of the merger regulation (Sofiproteol/Actifs Doux)

258

Dec. Eur. comm. art. 7, § 3 R.139/2004 of 25 July 2012, Sofiproteol v. Actifs Doux, case COMP/M. 6696. We are all aware of the setbacks of the French poultry group Doux, which has been in the news all summer, particularly through its receivership proceedings. Having found a partial buyer, in (...)

Dominique Berlin Absence of prior notification - Limitation period: The French Competition Authority fines a group of companies which failed to notify its operation before acquiring (three) French companies, in violation of article L. 430-3 of the French Commercial Code (Colruyt)

339

Aut. conc. dec. no. 12-D-12 of 11 May 2012 relating to the situation of the Colruyt Group with regard to I of Article L. 430-8 of the Commercial Code The cases of application of Article L. 430-8 of the Commercial Code are not legion (for the equivalent at the European level, see Commission (...)

Dominique Berlin Horizontal overlaps: The European Commission clears without any condition the merger of activities of two of the main players in the orange business in Brazil after an in-depth investigation (Votorantim/Fischer/JV)

337

Eur. comm., dec. art. 8, §1 R.139/2004, 4 May 2011, Votorantim/Fischer/JV, case COMP/M.5907 Two groups of Brazilian origin, Votorantim on the one hand and Fischer on the other, had decided to combine their orange juice activities in a joint venture to which their respective subsidiaries (...)

Dominique Berlin Horizontal overlaps – Commitments: The European Commission clears the creation of a joint venture in the petrochemical business subject to divestment commitments (BASF/Ineos/Styrene/JV)

332

Eur. Comm. dec. art. 6, §2 Reg. 139/2004, 1st June 2011, BASF/Ineos/Styrene/JV, case COMP/M.6093 The undertakings BASF SE (hereinafter ’BASF’) of Germany and INEOS Industry Holdings Limited (hereinafter ’INEOS’) of Switzerland, part of the group controlled by the INEOS Group, proposed to acquire (...)

Dominique Berlin Commitments – Authorization by the commission of an assignee: The General Court dismisses a claim for interim measure as the requirement of emergency is not satisfied in the Editions Odile Jacob case (Éditions Jacob/Commission)

288

Trib. UE (ord. prés.), 24 November 2011, Édition Jacob v. Commission, aff. T-471/11 R New episode in the proceedings between Éditions Odile Jacob, the Commission and the Lagardère group concerning the latter’s sale of certain publishing assets to the Wendel group in 2003. This divestiture took (...)

Dominique Berlin Conglomerate effects: The French Competition Authority clears the acquisition of sole control of a distributor by another one in Martinique after the parties submitted behavioural commitments (Louis Delhaize, Groupe Bernard Hayot)

478

Aut. conc. dec. no. 11-DCC-134 of September 2, 2011 relating to the acquisition of exclusive control of assets of the Louis Delhaize group by Groupe Bernard Hayot In this case, the Authority had to assess an operation consisting of the acquisition by GBH (franchisee of the Carrefour group for (...)

Dominique Berlin Phase II - No coordinated and non-coordinated effects: The European Commission unconditionnaly clears the acquisition of a hard disk drive business after in-depth investigation (Seagate, Samsung)

218

Dec. Eur. Comm. Art. 8, §1, R.139/2004, of 19 October 2011, Seagate/Samsung Hard Disk Drive Activity, COMP/M.6214 Phase II authorisation decisions without conditions or burdens are becoming less rare. However, they are still of interest to the extent that one wonders what may have changed the (...)

Dominique Berlin Phase II - No coordinated and non coordinated effects: The European Commission unconditionally cleared an acquisition in the paper sector after in-depth investigation (UPM, Myllykoski et Rhein Papier)

158

Eur. Comm, 13 July 2011, UPM/Myllykoski and Rhein Papier, case COMP/M.6101 The paper industry continues its European consolidation. At issue in the present case was the proposed acquisition of 100 % of the Finnish Myllykoski Group (in fact, this group included a German company, Rhein Papier, (...)

Dominique Berlin Conglomeral effects – Behavioural commitments: The European Commission cleares, subject to important behavioural commitments, a concentration between, the worldwide leader on the market of central processing units of computers as well as on the market of chipsets, and a very important actor on the market of security system for computers (Intel/McAfee)

863

Comm. eur., dec. art. 6, §2 R.139/2004 of 26 January 2011, Intel/McAfee, case COMP/M.5984 Less exotic than heavy or fine chemicals, the electronic components and IT that are part of our daily lives have given rise to a decision in which the Commission has largely been able to implement its grid (...)

Dominique Berlin Horizontal overlaps – Commitments: The European Commission cleares a concentration between companies active in the chemical sector but imposes undertakings from the parties since the operation took place on already very concentrated markets (BASF/Cognis)

477

eur. comm. dec. art. 6(2) Reg. 139/2004, 30 November 2010, BASF/Cognis, case COMP/M.5927 As the time limits for publishing decisions are becoming longer and longer, it is only recently that the decision in the BASF/Cognis case has been made available on the Commission’s website. The transaction (...)

Dominique Berlin, Santiago Soldevilla Fragoso, Thierry Tuot Conference - Public authorities and competition : Ex-post competition law control and violation of competition provisions (Round Table IV - Paris, 7 May 2010)

1930

Ex-post competition law control and violation of competition provisions Dominique BERLIN 1. The last topic chosen by the organizers of this day should allow to take stock of the litigation relating to "texts and decisions" that infringe competition law. In a way, it is the logical (...)

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