Etienne Thomas

ENM (Bordeaux)
Legal secretary

Etienne Thomas graduated from the College of Europe and holds a PhD from the University Paris 2. He worked for several law firms in Germany and in the Czech Republic, as well as for the Court of appeal of Paris (Chamber 5-7), before joining in 2015 the General Court of the European Union. He now works for the French judiciary.


16324 Review

Etienne Thomas Recurrence: The General Court of the European Union dismisses the five appeals filed by Japanese companies against the European Commission’s decision in the electrolytic capacitor cartel case and in so doing provides useful clarifications on the aggravating circumstance of recidivism (NEC / Nichicon / Tokin / Rubycon / Nippon Chemi-Con)


The five judgments reported here, relating to the electrolytic capacitor cartel, clearly illustrate the shift in the center of gravity of litigation from infringement to fines. This shift has long been observed before the Court of First Instance, where the judicial review of legality is coupled (...)

Etienne Thomas Fines: The European Commission imposes substantial fines on several car manufacturers for colluding to restrict access to innovative technologies to reduce exhaust emissions from diesel cars beyond the level required by the european legislation (Daimler, BMW, Volkswagen, Audi, Porsche)


While agreements between companies are usually characterized by the concerted fixing of the price of a product or by the sharing of one or more markets, there are also more novel and highly topical hypotheses. Indeed, it is well known that environmental protection remains at the heart of (...)

Etienne Thomas Competition policy: The European Commission publishes its annual activity report for the year 2020, which is marked by a much smaller batch of decisions than in 2019 due to the impact of COVID-19 pandemic


On July 7, 2021, the European Commission fulfilled the tradition: the publication of its annual report for the year 2020. The report provides information on the Commission’s antitrust practice over the past year, which was marked by a much smaller batch of decisions than in 2019. We will not (...)

Etienne Thomas Cartel facilitator: The European Commission adopts a new decision against the broker that facilitated the yen-denominated interest rate derivatives cartel, and in this context intends to correct the errors that justified the annulment of a previous decision before the General Court of the European Union and the Court of Justice of the European Union (Icap)


On 10 November 2017, the General Court annulled the Commission’s decision in the yen-denominated interest rate derivatives cartel (see Commission Decision C(2015) 432 final of 4 Feb 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39861 - (...)

Etienne Thomas Non-competition clause: The Court of Cassation rejects the appeal against the decision of the Paris Court of Appeal confirming the anti-competitive nature of a non-competition clause according to which a company transferring control of a subsidiary undertakes, on the one hand, not to operate on the same market as the transferred subsidiary and, on the other hand, to obtain its supplies exclusively from the latter (Edenred / Kering)


Is the lucrative gift card market finally opening up to full competition? In this decision, the French Supreme Court confirms the removal of one of the last barriers to entry erected by Edenred when it acquired control of a subsidiary, Kadéos, in 2007, which was jointly owned by several retail (...)

Etienne Thomas Market distribution: The European Commission condemns several investment banks for colluding in the primary and secondary bond markets (SSA Bonds / EGB and Bank of America a.o.)


Financial markets remain under the close supervision of the Commission. During the period under review, two decisions were issued sanctioning, respectively, two cartels between investment banks in the highly sensitive European government bond market and in the market for bonds issued by (...)

Etienne Thomas Economic unit: The Court of Justice of the European Union confirms, on the one hand, that an investment bank can be liable for the anticompetitive conduct of one of its portfolio company and, on the other hand, that the European Commission may rely on the presumption of control when one company holds the entirety of the voting rights in the managing board of another company despite holding not all or almost all of the shares in the capital of the latter (Goldman Sachs)


Investing in a company is a high-risk financial activity. No one is unaware of this, and neither are the bankers at Goldman Sachs, who have a much better grasp of the workings of global finance than we do. Traditionally, the aim is to increase the economic profitability of the target company in (...)

Etienne Thomas Public tender: The Court of Justice of the European Union holds that an infringement consisting in the concerted submission of a tender for the award of a public works contract, the performance and payment of the price for which are staggered over time, ends, in principle, at the date of signature of the contract concluded between the undertaking and the contracting authority on the basis of the concerted bid (Kilpailu- ja kuluttajavirasto)


Where do you place the cursor for the end of an infraction? This question is simple in its formulation, but not without complexity. Its answer is also not without legal consequences, in that the five-year limitation period for prosecution runs, in the case of a single and continuous (...)

Etienne Thomas Notion of undertaking: The Court of Justice of the European Union criticises the Court of First Instance of the European Union for having, in a new aspect of the heat stabilisers case, disregarded the concept of undertaking, the principle of equal treatment and the date on which a fine becomes payable if the European Commission adopts an amending decision (GEA)


It will be recalled that in the heat stabilisers case, in a judgment delivered in 2018, the Court of First Instance had annulled an amending decision of the Commission, by which the Commission had corrected an error, contained in a previous decision, relating to the determination of the (...)

Etienne Thomas Joint liability: The Court of Justice of the European Union has once again dismissed the appeals against the judgments of the Court of First Instance in the case of the electricity cable cartel and refuses to make the joint and several condemnation of a parent company and its former subsidiary conditional on the payment of a fine on the insolvency of the latter (Pirelli)


Since the first major judgments, in the 1970s, the courts, now of the Union, have not ceased to outline, through a functional interpretation of the concept of undertaking, the contours of a system that is forever unprecedented in anti-competitive practice law of the liability of parent (...)

Etienne Thomas Commitments: The French Competition Authority examines commitments given by food retail companies to answer competition concerns raised after the conclusion of several joint purchasing agreements in the food retail sector (Auchan, Casino, Metro, Schiever)


If the Competition Authority has certain concerns about compliance with the competition rules on the market, it may receive commitments from the companies concerned with a view to lifting them. The resulting commitment decisions are generally not immune to litigation initiated by third parties (...)

Etienne Thomas Fine: The French Supreme Court confirms in the dairy product cartel that the Paris Court of Appeal did not breach the principle of equal treatment while fixing the amount of the fine after having annulled the decision of the French Competition Authority on that point (Andros)


When setting the amount of a fine itself, can the Paris Court of Appeal be more severe than the Competition Authority? While French law, unlike EU law, provides for a genuine "recours en réformation"(see Article L. 464-8 C. com. ), this question is of interest, whether the fine is determined (...)

Etienne Thomas Cooperation: The European Commission and the European Competition Network soften their control, under certain conditions, on cooperation between competitors or other companies willing to coordinate their efforts so as to avoid any shortage of medicines and essential medical equipment within the context of the Covid-19 outbreak


As in Europe, even cartel law progresses in times of crisis. The European Commission’s responses are usually the strongest. Mergers between competing companies cannot be tolerated, nor can any justification based on the economic difficulties of the sectors of activity concerned. There is no (...)

Etienne Thomas Fines: The Court of Justice of the European Union dismisses the appeals against three judgements of the General Court of the European Union and confirms the determination, by the European Commission, of the value of the sales to reflect the weight of the European and non-European participants in the underground and submarine power cables cartel (Viscas, Furukawa, Fujikura)


In the case of the power cable cartel, two judgements are eagerly awaited. One will soon be pronounced in an appeal by Goldman Sachs. Broadly speaking, the Court will be asked to rule on the extension of the presumption of control of a parent company in the event that it does not hold all or (...)

Etienne Thomas Fine : The General Court of the European Union partially annuls the European Commission decision regarding an anticompetitive agreement in the purchasing market of car battery recycling and lowers significantly the fine (Campine)


"In Belgium and the Netherlands, the temperature continues to fall. Warm air, however, continues to come from Germany, contributing to a general warming of the planet. Perhaps you could try to get some fresh air from your side to protect the environment as well" ( EUTrib., 7 Nov. 2019, Kempen, (...)

Etienne Thomas Settlement: The European Commission issues a settlement decision by which it fines two out of three companies for participating in the canned vegetables cartel (Coroos / CECAB)


Now it’s the turn of the beans, peas and corn. The Commission will indeed have been led to sanction once again a cartel in the canned vegetable market, a most classic cartel, which at first glance does not surprise at its remarkable longevity (for a cartel in the canned mushroom market, see Eur. (...)

Etienne Thomas Fine : The General Court of the European Union annuls the decision of the European Commission relating to a cartel in the food packaging market due to a failure to state reason in the assessment of the ability to pay of one company but dismisses the other applications for annulment while clarifying its case law regarding the presumption of control in a group of companies (Huhtamäki, Italmobiliare, CCPL, Silver Plastics and Johannes Reifenhäuser)


A sector in crisis is undoubtedly a fertile ground for bringing together competing companies. For some companies, freeing themselves from the constraints of the market sometimes stems from a survival instinct, hoping that the Commission will be relatively benevolent in the event of sanctions. (...)

Etienne Thomas Fine: The European Commission sanctions a cartel on the spot foreign exchange market and imposes a fine of more than €1 billion on several banks, all of which have acknowledged their participation in the infringement under the settlement procedure (Forex - Essex Express)


It is easy to say that, in competition law, fortune does not smile on the bold. Traders may be bold, but in recent years the Commission has taken numerous decisions sanctioning cartels on the financial markets. This is illustrated, if need be, by those revealed in the sector of interest rate (...)

Etienne Thomas Admissibility: The French Competition Authority rejects, for lack of evidence on the basis of Article L. 462-8 of the French Commercial Code, complaints from car garages seeking about alleged discriminatory practices by an Asian manufacturer in the development of its networks of distributors and repairers (Hyundai)


The motor vehicle sector certainly occupies a prominent place in the competition law landscape, as illustrated, where appropriate, by the texts adopted by the Commission to regulate vertical agreements in this area between manufacturers, distributors and/or repairers. Since 1985, various (...)

Etienne Thomas Economic continuity: The Court of Justice of the European Union extends to actions for damages the application of the principle of economic continuity and, in that way, its practical interpretation of the notion of undertaking (Vantaan kaupunki)


The principle of economic continuity, which has been the source of much litigation, makes it possible, in substance, to attribute an offence to a company that has not committed any material act but holds the assets related to the offence (see, for a summary of the case law on this point, Trib. (...)

Etienne Thomas Economic continuity: The General Court of the European Union dismisses the appeal brought against the decision of the European Commission in the retail food packaging sector and confirms the non-application of the principle of economic continuity in the situation at stake (Coveris Rigid France)


While the principle of economic continuity enables the Commission to adapt its practice to corporate restructuring in a timely manner, it cannot, in principle, be criticised for failing to invoke that principle where the direct perpetrator of an infringement remains legally stable. That is the (...)

Etienne Thomas Resale price maintenance: The European Commission fines four consumer electronics manufacturers for imposing fixes or minimum resale prices on their online retailers (Asus / Donan & Marantz / Philips / Pionner)


On 2 February 2017, the Commission launched a wide-ranging investigation into the e-commerce sector, in particular in view of the limited development of cross-border online sales in the EU (see European Commission press release of 2 February 2017, IP/207/01). As a result of this investigation, (...)

Etienne Thomas Fines: The EU General Court of the European Union dismisses all the applications for annulment of the European Commission’s decision relating to an anticompetitive agreement in the power cables market and confirms its established case law regarding notably the allocation of liabilities within or between groups of companies (Goldman Sachs)


Fifteen actions brought against the Commission’s decision in the power cables case for as many rejections. The Court of First Instance will certainly not have been convinced by the arguments put forward before it by the many protagonists in this cartel, whose longevity - almost ten years - is (...)

Etienne Thomas, Ludovic Bernardeau Fines: The Paris Court of Appeal dismisses the appeal brought against the decision n° 16-D-09 of the French Competition Authority, but considers that the increase of the fine for several companies belonging to the same undertaking, having regard to the size and the economic strength of their group, was disproportionate by comparison with the size and the economic strength of another one, and reduces the amount of the fine accordingly (Sermétal)


Second stage of the action brought against the decision of the Competition Authority in the case of welded wire mesh on the island of Réunion, which concerned a number of cartel practices between players in the sector in connection with the major construction projects on the island of Réunion, in (...)

Etienne Thomas Substitutability: The Court of Justice of the European Union answers several preliminary questions referred by the Italian Council of State regarding the definition of the relevant market and the concept of restriction by object in a case involving the Italian competition authority and two pharmaceutical companies (Hoffmann-La Roche)


A few months after its judgment following the two questions referred by the Court of Cassation for a preliminary ruling in the "endives" case, the Grand Chamber of the Court met again to answer a series of questions from the Italian Council of State. Although the present case is certainly one (...)

Etienne Thomas Lack of competence: The French Competition Authority considers itself incompetent to rule on some practices of the French Nurses National Order (National order of nurses)


The medical world remains the focus of this column, thanks to a decision by the Competition Authority, in which the latter, on the one hand, declares itself partly incompetent and, on the other hand, rejects the complaints on the basis of Article L. 462-8 C. com. Various companies providing (...)

Etienne Thomas Hybrid settlement procedure: The Paris Court of appeal dismissed the appeal brought against the decision of the French competition authority n° 16 D 28, but rectifies the latter as the French competition authority had imputed the contested practices to an “entity” without any legal personality (Caisse des Dépôts et Consignations)


Litigation generated by hybrid transactions is recurrent during this period, since the judgment reported here, handed down by the Paris Court of Appeal on October 26, 2017, comes in addition to those handed down by the Court of Cassation in the Mobilitas case and by the Court of First Instance (...)

Etienne Thomas Fines: The French commercial Supreme Court confirms the judgement of the Paris Court of appeal and rules that a contracting authority may not seek, under certain circumstances, the annulment of the contracts signed with the successful tenderers even if the latter have exchanged information during the tender (EDF c/ Nexans)


While the sanctioning of anti-competitive practices generally implies, at the administrative level, the imposition of a fine, which is a source of increasingly serious litigation, other consequences, at the civil level alone, should not be ignored. This is the case for the nullity of (...)

Etienne Thomas Ceiling of the fine: The General Court of the European Union reforms, following a referral back, the amount of fine inflicted to an undertaking by making a distributive application of the ceiling of the fine in accordance with the judgment of the European Court of Justice of the European Union (Laufen Austria)


Following the Court’s judgment in the Laufen Austria case, the Court of First Instance, by its judgment on reference, reformed the fine imposed on Laufen Austria, for the period prior to its acquisition by the Roca group, by reducing its amount (§ 40). It should be recalled that the Court of (...)

Etienne Thomas Rights of defence: The Court of Justice of the European Union dismisses the appeal brought against the judgement of the General Court of the European Union in the Gas insulated switchgear case by ruling, in particular, that the latter properly applied the principle of equal treatment regarding the determination of the fine (Toshiba)


By its judgment of 6 July 2017, the Court of Justice dismisses the appeal brought by Toshiba against the judgment of the Court of First Instance of 19 January 2016 and, at the same time, puts an end to the Toshiba saga before the judges of the European Union (on the judgment of the Court of (...)

Etienne Thomas Fines: The Paris Court of Appeal partially annuls the decision of the French Competition Authority in the fresh dairy product cartel case due to errors in law regarding among others the calculation of the fine and accordingly reduced the latter for several companies (Laïta)


Following a first leniency application in 2011 by General Mills and its subsidiaries to bring possible anti-competitive practices in the dairy sector to the attention of the Competition Authority, the Authority had, on 11 March 2015, fined many players in the dairy sector a total of €192.7 (...)

Etienne Thomas Corporate restructuring: The Paris Court of Appeal dismisses the appeal filed by several companies against the decision of the French Competition Authority in the sectors of home and personal care products but upholds the latter for three of them due to errors in the calculation of the fines (Beiersdorf)


"Hygiene and maintenance", act two. Pending a ruling by the Court of Cassation, to which an appeal has been lodged in the same case, it is appropriate to focus on the ruling handed down by Chamber 5-7 of the Paris Court of Appeal, following the appeal lodged against the decision of the (...)

Etienne Thomas Role of leader: The General Court of the European Union confirms the allocation of the liability of a mother company to its subsidiary, even if the latter was constituted only to be sold to another group of companies, but annuls the decision of the Commission due to an error in law regarding the fines (Parker Hannifin)


Will the Tribunal, by delivering its Judgment in the Parker case on 14 July 2016, put an end to the judicial saga concerning the marine pipe cartel? This case will have been the occasion for the judges of Luxembourg (see Trib. UE, 17 May 2013, Parker ITR and Parker-Hannifin, c/ Commission, (...)

Etienne Thomas Exclusive distribution: The French Competition Authority condemns a company and its wholesalers for having concluded an exclusive dealing agreement in overseas territories


Since the entry into force of Act No. 2012-1270 of 20 November 2012 relating to overseas economic regulation, known as the "Lurel" Act, and pursuant to Article L. 420-2-1 of the French Commercial Code, companies operating on overseas markets must put an end to practices whose purpose or effect (...)

Etienne Thomas Fines: The Paris Court of Appeal rules that a fine imposed jointly and severally to a mother company for the infringement of its subsidiary may be different than and superior to the one its subsidiary has to pay, when the latter has, during the administrative proceeding, settled with the French competition authority (Mobilitas)


Even if it were at the heart of this case, the question of the imputability of the infringing conduct of a subsidiary to its parent company will not attract our attention in the present columns, since the solutions provided remain classic as regards the legal duality and activities of the (...)

Etienne Thomas Passive sales : The European Commission publishes the commitments proposed by a distributor of broadcasting contents to an alleged anticompetitive agreement conferring absolute territorial protection (Paramount / Sky)


On 13 January 2014, the Commission opened formal proceedings to examine certain provisions of the agreements between several US production studios and the main European pay-TV broadcasters. These agreements were specifically aimed at licensing the audiovisual content of the production studios (...)

Etienne Thomas Fines : The Paris Court of appeal reduces the fine imposed by the French competition authority to the applicants and recalls that the fine imposed to a company shall not be increased automatically for deterrence when the latter belongs to a large group of companies, unless it is proven that its anticompetitive behavior has been fostered by its belonging to the group of companies (INEO réseaux sud-ouest et SPIE sud-ouest)


Continuation and end of the very French saga of belonging to a group? After having complied on 28 May 2015 with the ruling handed down on 18 February 2015 by the Court of Cassation in the Historic Monuments case, the Paris Court of Appeal was once again called upon to rule on this thorny issue (...)

Etienne Thomas Object or effect: The Court of Justice of the European Union considers that a commercial lease agreement giving a right to the anchor tenant to prevent the lessor from letting commercial premises to third parties is not a restriction of competition by object but may constitute a restriction by effect in case it leads to the closing-off of the market (Maxima Latvija)


Has Jean de la Fontaine ever warned us, albeit in a completely different vein, that it is not without danger to want to look bigger than oneself? Would it be the same, under the Union’s competition rules, for a tenant wishing to exercise the prerogatives of a lessor? That is, in substance, the (...)

Etienne Thomas Tenders: The European Commission fines eight optical disc drive suppliers a total of €116 million for having coordinated their behaviour in relation to procurement tenders organised by two computer manufacturers between June 2004 and November 2008 (Optical disc)


What better place than a movie theater to "get along"? This question can only be answered in the affirmative following the European Commission’s decision of 21 October 2015 sanctioning the behaviour of eight suppliers of optical disc players for exchanging information between June 2004 and (...)

Etienne Thomas Conditional leniency: The General Court of the European Union rules that a decision of the European Commission to award to an undertaking a conditional immunity constitutes an act capable of interrupting for all undertaking the time limitation period, under article 25 of regulation n° 1/2003 (Empresarial de Materiales de Construcción)


Admittedly, as Advocate General Ghent put it, the limitation period ’reflects in law a banal truth, namely that time is right in everything, that after a period of time there always comes a time when, in social relations, what is past must no longer be called into question and that, even if that (...)

Etienne Thomas Capital presumption : The Advocate General Paolo Mengozzi considers that although the fact that mother company’s instructions not to participate in a cartel, disrespected by a subsidiary, are an indication of a lack of an effective and determinant influence, their are not sufficient to reverse the capital presumption (Evonik Degussa, Alzchem)


Some might have pointed out that, with regard to the reversal of the capitalist presumption, "it is when you reach the goal that you are most likely to miss it". In the present case, the applicants have never been so close to it ... Indeed, the main issue in this case is whether the capital (...)

Etienne Thomas Fine reduction : The General Court of the European Union recalls the conditions of imputability to the principal of an agent’s competition infringement but reduces a disproportionate fine (Voestalpine)


Would trust preclude control? Following the judgment of the Court of First Instance of 15 July 2015 in Case T-418/10, it seems that, under EU competition law, such a question must be answered in the negative, at least as regards the relationship between a company and its commercial agent. In (...)

Etienne Thomas Limited discretion : The General Court of the European Union annuls partially the decision of the Commission regarding its assessment of the (in)ability to pay of the company both in the decision and in a letter rejecting a request for a new assessment, but doesn’t reduce in any way the amount of the fine in the frame of its unlimited jurisdiction (Westfälische Drahtindustrie)


"Club Zurich", "Club Europe", "Club España", "Club Italia": the companies involved in the prestressing steel market had only the embarrassment of the choice of meetings to reach agreement. This is what they did from 1984 to 2002. Such an important cartel could not remain secret indefinitely, in (...)

Etienne Thomas Joint and several responsibility : The Court of Justice of the European Union approves the General Court in a mother-daughter liability scenario but blames it for having granted a fine reduction, whereas the information was provided by the company answering a request of the Commission (Fresh Del Monte)


It has to be said that, in competition law, whether it be abuse of a dominant position or cartels, bananas are always in the limelight, and always slippery, as is clear from the Court’s judgment in the Fresh del Monte cases reported here. In those cases, the Commission adopted a decision in (...)

Etienne Thomas Belonging to a group : The Paris Court of appeal confirms that a company should not have its fine increased automatically due to its belonging to a large group (Degaine/Pradeau et Morin)


The French saga of group membership is not over. After having been rejected by the Court of Cassation in its ruling of February 18, 2014, the Court of Appeal has now decided that the French saga of group membership is not over....does the Court of Appeal fall in line? The case that gave rise to (...)

Etienne Thomas Fidelity rebates : The Paris Court of Appeals condemns the vertical agreement between a pharmaceutical company and its distributor in France, setting fidelity rebate schemes and aiming at developing a strategy to discourage clients to buy the generic version of the medecinal product (Reckitt Benckiser/Arrow)


Some say that the simple flapping of a butterfly’s wings could trigger a tornado halfway around the world. Would this analysis also apply to competition law? This question could arise following the Paris Court of Appeal ruling of 26 March 2015. In this case, the Court had to rule on the (...)

Etienne Thomas Unlimited jurisdiction : The General Court of the European Union confirms that its unlimited jurisdiction is to be exercised taking into consideration the situation at the time of its ruling and takes into account the alleged inability of a company to pay a fine (Pilkington Group)


Trib. EU, Dec. 17, 2014, Pilkington Group, Case T-72/09 "The car Monsieur Fernand ! The car !" Audiard, in his Tontons flingueurs, had he anticipated, certainly in another context, the most cartelized consumer product? Let’s draw up an inventory, without the references that would confuse the (...)

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