Herbert Smith Freehills (Brussels)

Kyriakos Fountoukakos

Herbert Smith Freehills (Brussels)
Partner

Kyriakos Fountoukakos is the managing partner of Herbert Smith Freehills’ Brussels office and the Regional Head of Competition, Regulation and Trade, EMEA. He is a competition law specialist with more than two decades of experience practising competition law and deals with all aspects of EU and UK competition law including merger control, cartels, antitrust investigations and advice, and competition litigation before the EU courts. Kyriakos has advised clients in a broad range of industries including TMT, pharmaceuticals, energy and mining, financial services, consumer goods and transport. Kyriakos works closely with the Herbert Smith Freehills network to provide advice on multi-jurisdictional transactions and investigations. Kyriakos was formerly a European Commission official at DG Competition’s Merger Task Force and Referendaire (Legal Secretary) at the Cabinet of the then President of the EC Court of First Instance, Mr Bo Vesterdorf. Kyriakos is an officer (currently senior vice-chair) of the IBA’s antitrust committee. He is active in speaking and writing about competition law and is co-editor of the mergers chapter of Jones & Van der Woude’s EU Competition Law Handbook. Kyriakos has studied at the University of Athens (LLB), King’s College London (LLM), the University of Cambridge (MPhil in European studies) and Columbia Law School, New York (LLM). He is qualified as a Greek lawyer, as a solicitor in England and Wales and as a Belgian Advocaat. Kyriakos is fluent in English, Greek and French.

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Herbert Smith Freehills (London)
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Herbert Smith Freehills (London)

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Kyriakos Fountoukakos (Herbert Smith Freehills)
Kyriakos Fountoukakos 16 January 2020 Brussels

Articles

63127 Bulletin

Kyriakos Fountoukakos, Marcel Nuys, Florian Huerkamp The EU Court of Justice delivers a judgment which clarifies the concept of potential competition, the notion of ancillary restraints, and the category of by-object restrictions under Article 101 of TFEU (EDP Comercial / Modelo Continente)

92

Non-compete clauses that require a party to an agreement (or both parties in case of a reciprocal non-compete obligation) not to enter a market where it is currently not present are most common in M&A contracts for the sale of a business, where the seller undertakes not to compete with the (...)

Kyriakos Fountoukakos, Jose Munoz, Kian O’Connell The EU General Court upholds the EU Commission’s imposition of a combined fine of €60.5M on two pharmaceutical companies for their involvement in a “pay-for-delay” agreement (Teva / Cephalon)

54

On 18 October 2023, the European General Court (GC) delivered its judgment in Teva Pharmaceuticals Industries and Cephalon v European Commission (Case T-74/21). The GC upheld the European Commission’s (EC) decision from 2020 (Case AT.39686), which imposed a combined fine of €60.5 million on (...)

Kyriakos Fountoukakos, Peter Rowland, Alexander Rickets The UK Competition Appeal Tribunal dismisses appeals against the Competition Authority’s findings of abuse of dominance relating to excessive pricing investigation concerning liothyronine tablets market (Advanz Pharma / Hg Capital / Cinven)

378

The UK Competition Appeal Tribunal has dismissed appeals against the CMA’s finding of abuse of dominance relating to excessive pricing of liothyronine tablets. The judgment provides further detail on the application of the excessive pricing test, and follows the Court of Appeal’s approach in (...)

Lode Van Den Hende, Kyriakos Fountoukakos, Morris Schonberg The EU Commission adopts the Implementation Regulation and Notification Forms for reporting transactions and public bids under the Foreign Subsidies Regulation

76

Three intervention tools The FSR is a new EU regulatory regime that is essentially intended to “level the playing field” between EU operators and their competitors from non-EU Member States which are not subject to EU State aid rules and are consequently able to provide their companies with (...)

Kyriakos Fountoukakos, Peter Rowland, Jose Munoz The EU Commission publishes the names of the companies that have declared that they meet the thresholds to qualify as gatekeepers under the Digital Markets Act (Alphabet / Amazon / Apple / ByteDance / Meta / Microsoft...)

511

On 4 July 2023, the European Commissioner for the Internal Market, Thierry Breton, revealed in a LinkedIn post the companies that have declared that they meet the thresholds to qualify as gatekeepers under the Digital Markets Act (DMA). The deadline for such notifications was yesterday, 3 July (...)

Kyriakos Fountoukakos, Daniel Vowden, Kristien Geeurickx, Marcel Nuys, Susan Black, Morris Schonberg, Florian Huerkamp The EU Commission adopts its revised Guidelines on horizontal cooperation agreements and Horizontal Block Exemption Regulations on R&D and Specialisation Agreements

100

On 1 June 2023 the European Commission adopted its revised guidelines on horizontal cooperation agreements (Guidelines) together with its revised horizontal block exemption Regulations on R&D and Specialisation Agreements. For an overview of the revised Guidelines see our blog post here. (...)

Kyriakos Fountoukakos, Susan Black, Kristien Geeurickx The EU Commission adopts new Horizontal Cooperation Guidelines and publishes the R&D and Specialization Block Exemption Regulations which introduce a new era for horizontal cooperation in line with the Court of Justice’s and the Commission’s decisional practices

95

Overview of the EU Commission’s Guidance on Information Exchange In June 2023 the European Commission adopted its revised guidelines on horizontal cooperation agreements (Guidelines) together with its revised horizontal block exemption Regulations on R&D and Specialisation Agreements. (...)

Kyriakos Fountoukakos, Daniel Vowden, Peter Rowland, Kristien Geeurickx The EU Commission publishes a package of measures aimed at simplifying its merger control procedures in order to reduce the workload and costs of mergers

87

On 20 April 2023 the European Commission published a package of measures aimed at simplifying its merger control procedures under the EU merger Regulation (EUMR). The new measures, which will take effect as of 1 September 2023, aim to streamline and make less burdensome the Commission’s (...)

Daniel Vowden, Kyriakos Fountoukakos, Vassilena Karadakova, Abhijeet Sinha, Phoebe Hirst The EU Commission announces plans for new Article 102 TFEU Guidelines and amends the previous Guidance on enforcement priorities

110

On 27 March 2023, the European Commission (Commission) announced its intention to adopt detailed new guidelines on the application of Article 102 TFEU to exclusionary conduct. The Commission explained that “Article 102 TFEU is one of the few areas of European competition law where no (...)

Daniel Vowden, Sergio Sorinas, Kyriakos Fountoukakos, Abhijeet Sinha, Agathe Esch, Souzanna Omran The EU Court of Justice rules that non-notifiable mergers can be reviewed under abuse of dominance rules (Towercast)

348

INTRODUCTION On 16 March 2023, the Court of Justice of the European Union (CJEU) issued its keenly anticipated judgment in Towercast(Judgment), following a request for a preliminary ruling by the Court of Appeal, Paris (Court of Appeal). The Judgment clarifies that acquisitions by dominant (...)

Kyriakos Fountoukakos, Lode Van Den Hende, Morris Schonberg The EU Council adopts the Foreign Subsidies Regulation and the EU Commission schedules publication of the draft implementing regulation for the start of 2023

230

The EU has now formally adopted its new Foreign Subsidies Regulation (“FSR”), which will start to apply from mid-2023. The European Commission will shortly be publishing a draft Implementing Regulation, which will set out what must be included in notifications under the FSR and further (...)

Kyriakos Fountoukakos, Daniel Vowden, Peter Rowland, Laura Zsarnai, Violetta Meli The EU Commission publishes the ground-breaking Digital Markets Acts which aims at improving the contestability and fairness of digital markets

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The EU’s groundbreaking Digital Markets Act (DMA) came into force on 1 November 2022 and applies from 2 May 2023. In this update we summarise key developments: the Implementing Regulation, institutional changes in DG COMP, workshops, and national proposals granting National Competition (...)

Kyriakos Fountoukakos, Henar González Durántez, Pilar Carrasco, Gonzalo Sanz-Magallón, Jose Munoz, Anna Sol The Spanish Competition Authority imposes sanctions on a pharmaceutical company for misusing litigation strategies regarding patents (Merck Sharp & Dohme)

562

On 21 October 2022, the Spanish National Markets and Competition Commission (CNMC) imposed a €38.9 million fine on pharmaceutical company Merck Sharp and Dohme (MSD) for abusing its dominant position in the Spanish market for contraceptive vaginal rings. In particular, the CNMC concluded that (...)

Kyriakos Fountoukakos, Daniel Vowden, Peter Rowland, Nika Nonveiller, Violetta Meli The EU Parliament publishes the Digital Markets Act in the Official Journal, creating a new regulatory regime for large tech platforms

187

The Digital Markets Act (DMA) is a ground-breaking piece of EU regulation, imposing rules on platforms acting as “gatekeepers” in the digital sector, and aiming to ensure fairness and contestability in digital markets. It will enter into force on 1 November 2022, setting the clock running for (...)

Kyriakos Fountoukakos, Peter Rowland, Jose Munoz The EU Commission issues a Statement of Objections against a pharmaceutical company over alleged abuse of dominance consisting of misuse of divisional patents and a disparagement campaign against its closest competitor (Teva)

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On 10 October 2022, the European Commission (“EU Commission“) formally adopted a Statement of Objections (“SO“) against Teva over an alleged abuse of dominance concerning its blockbuster drug Copaxone, which is used in the treatment of multiple sclerosis. As we reported in March 2021, the EU (...)

Kyriakos Fountoukakos, Daniel Vowden, Kristien Geeurickx The EU Commission blocks the acquisition of a genetics analysis provider by a cancer detection healthcare company (Illumina / Grail)

785

On 6 September 2022 the EU Commission adopted a decision under the EU merger Regulation (EUMR) prohibiting the completed acquisition by Illumina of GRAIL. This is the first time the Commission has examined a transaction below the EUMR thresholds and all national EU Member State thresholds (...)

Kyriakos Fountoukakos, Daniel Vowden, Kristien Geeurickx The EU General Court endorses the Commission’s revised approach to review transactions below EU and national merger thresholds via Article 22 EUMR referrals (Illumina / Grail)

217

In its judgment of 13 July 2022 the General Court endorsed the EU Commission’s revised approach to Article 22 EU Merger Regulation (EUMR) referrals as set out in its March 2021 Guidance. The case relates to an appeal brought by Illumina against the Commission’s decision to accept the referral (...)

Kyriakos Fountoukakos, Lode Van Den Hende, Morris Schonberg The EU Commission reaches agreement on foreign subsidies regulation with the new regime scheduled to enter into force in 2023

712

The EU has reached political agreement in relation to the much-anticipated foreign subsidies regulation (the “Regulation”), which should become operational next year. The Regulation essentially creates a new subsidy control regime for third country subsidies affecting the EU market and has the (...)

Kyriakos Fountoukakos, Marcel Nuys, Kristien Geeurickx, Camille Puech-Baron, Florian Huerkamp, Nika Nonveiller The EU Commission publishes new competition rules for vertical agreements

338

Following a comprehensive review and consultation process, the new revised EU vertical agreements block exemption Regulation (VBER) and Guidelines have now been published and will come into force on 1 June 2022. The Commission’s stated objectives of the review process were to adjust the safe (...)

Joseph Falcone, Kyriakos Fountoukakos, Daniel Vowden, Veronica Roberts The EU Commission issues Guidance on FDI from Russia and Belarus and calls for greater scrutiny due to increased risk of harm to security or public order

183

On 6 April 2022, the European Commission (“Commission”) issued Guidance to Member States on how to screen foreign direct investment (“FDI”) from Russia and Belarus into the EU, in light of the ongoing military conflict in Ukraine (“FDI Guidance”). Following Russia’s unjustified attack (...)

Kyriakos Fountoukakos, Daniel Vowden, Kristien Geeurickx, Marcel Nuys, Florian Huerkamp, Susan Black The EU Commission invites comments on its draft revised rules on horizontal cooperation agreements

682

On 1 March 2022 the EU Commission published, for consultation, its draft revised rules on horizontal cooperation agreements. The rules consist of two horizontal block exemption Regulations (covering Research & Development agreements and Specialisation agreements) and Guidelines on the (...)

Kyriakos Fountoukakos, Kian O’Connell The EU Commission includes for the first time in its draft revision of the horizontal cooperation guidance a specific section on consortia agreements

282

The European Commission’s draft revision of the horizontal cooperation guidance published on March 1, 2022, for the first time includes a specific section on the assessment of consortia agreements. Up to now, there has been very limited guidance in case law and in the existing horizontal (...)

Peter Rowland, Kristien Geeurickx, Kyriakos Fountoukakos The EU Commission reviews its guidelines on vertical restraints within the broader context of the review of the Vertical Block Exemption regulation

790

The European Commission (“Commission”) is currently reviewing its Guidelines on Vertical Restraints (“Vertical Guidelines”) within the broader context of the review of the Vertical Block Exemption Regulation (“VBER”) and consulted on its proposals last year. It has now launched a further (...)

Kyriakos Fountoukakos, Daniel Vowden, Yevgen Khodakovsky The EU Commission publishes its final report on a consumer Internet of Things sector inquiry which confirms its preliminary findings related to high entry barriers and the issues around access to data

587

On 20 January 2022 the European Commission (“Commission“) published its final report on the consumer Internet of Things (“IoT“) sector inquiry, largely confirming its preliminary findings issued in July 2021. These include concerns around high market entry barriers, the influence on the market (...)

Kyriakos Fountoukakos, Daniel Vowden The EU Commission issues a Statement of Objections, pursuing interim measures on two pharmaceutical companies for the alleged violation of the standstill obligation (Illumina / Grail)

230

The Illumina/GRAIL case saga continues. As we reported in our previous briefing, the Illumina / GRAIL deal provides the first illustrative example of the European Commission’s ("Commission") new approach to try and “catch” transactions using the referral mechanism in Article 22 EU Merger (...)

Kyriakos Fountoukakos, Florian Huerkamp, Kristien Geeurickx, Marcel Nuys, Daniel Vowden, Susan Black The EU Commission publishes drafts of revised Vertical Block Exemption Regulation and Vertical Guidelines

893

On 9 July 2021, following a comprehensive consultation process, the EU Commission (Commission) published its proposals for a revised Vertical Block Exemption Regulation (Draft VBER) and Draft Vertical Guidelines, due to replace the current regime which expires on 31 May 2022. The previous (...)

Daniel Vowden, Adrian Brown, Kyriakos Fountoukakos The EU Commission carries out its first dawn raid since the COVID-19 pandemic started at the German premises of a company active in the clothing sector

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On 22 June 2021 the European Commission (“Commission”) revealed that it had carried out surprise inspections at the German premises of a company active in the clothing sector, suspected of infringing competition rules. This was the first unannounced inspection, or “dawn raid”, conducted by (...)

Kyriakos Fountoukakos, Lode Van Den Hende, Daniel Vowden, Eric White, Adrian Brown, Morris Schonberg The EU Commission issues its regulatory proposal containing novel measures to tackle foreign subsidies distorting the EU market

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On 5 May 2021, the European Commission (Commission) issued its proposal for a Regulation on foreign subsidies distorting the EU market. This follows on from the Commission’s White Paper issued in June 2020 and the extensive public consultation that ensued. The primary objective of this (...)

Kyriakos Fountoukakos, Mark Jephcott, Marcel Nuys, Sergio Sorinas, Kristien Geeurickx The EU Commission publishes guidance on Article 22 referrals for transactions falling below national thresholds

642

On 26 March 2021 the EU Commission (Commission) published revised guidance on the referral mechanism set out in Article 22 of the EU Merger Regulation (EUMR), under which the Commission will now accept referrals from Member States for deals that fall below the domestic jurisdictional (...)

Kyriakos Fountoukakos, Sebastien Moore, Peter Rowland, Kristien Geeurickx, Agathe Célarié The EU Court of Justice dismisses the appeals of several manufacturers of medicines and upholds the Commission’s decision regarding a pay-for-delay infringement (Lundbeck)

725

On 25 March 2021, the Court of Justice of the EU (“CJEU”) dismissed the appeals by Lundbeck and five producers of generic medicines against the General Court’s (GC) judgments that upheld the Commission’s decision and the fines it had imposed in its first pay-for-delay infringement decision in (...)

Kyriakos Fountoukakos, Sebastien Moore, Kristien Geeurickx The EU Commission investigates for the first time a case relating to divisional patent filing and litigation strategies in the pharmaceutical sector (Teva)

751

On 4 March 2021 the EU Commission announced it has launched a formal investigation into possible anti-competitive conduct by pharmaceutical company Teva in relation to its blockbuster drug Copaxone, which is used in the treatment of multiple sclerosis. The patent for the active ingredient in (...)

Kyriakos Fountoukakos, Max Kaufman, Kristien Geeurickx, Agathe Célarié The EU Commission accepts the commitment offered by a pharmaceutical company to reduce drug prices by 73% (Aspen)

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“When the price of a drug suddenly goes up by several hundred percent, this is something the Commission may look at” Commissioner Vestager said when opening a formal investigation into Aspen’s alleged excessive pricing conduct in May 2017. On 10 February 2021, the EU Commission (Commission) (...)

Kyriakos Fountoukakos, Daniel Vowden, Agathe Célarié The EU Court of Justice confirms the liability of a parent company for the conduct of its subsidiaries involved in a cartel (Goldman Sachs)

329

On 27 January 2021, the Court of Justice of the EU (CJEU) dismissed in its entirety an appeal brought by the Goldman Sachs Group (Goldman Sachs) against a General Court ruling which confirmed Goldman Sachs’ joint and several liability in the 2014 power cables cartel (judgment here). The CJEU (...)

Marcel Nuys, Annika Gante, Peter Rowland, Kyriakos Fountoukakos, Florian Huerkamp The German Parliament passes the Digital Competition Act bringing significant changes to the competition law landscape

639

Today, the German parliament passed the “Digital Competition Act” which is the 10th amendment to the Act against Restraints of Competition (ARC). The amended law – which will very likely enter into force January 2021 – will bring about significant changes to the German competition law (...)

Kyriakos Fountoukakos, Mark Jephcott, Veronica Roberts, Daniel Vowden, Kristien Geeurickx The UK Government and the EU Commission agree on a trade and cooperation act detailing the applicability of both merger control regimes after Brexit

181

On 1 January 2021, with the end of the Brexit transition period, the UK entered the real world of Brexit. This has immediate implications for merger control both in the UK and the EU. Any companies involved in deals need to be aware of the impact. As of 1 January 2021 the EU Merger (...)

Kyriakos Fountoukakos, Peter Rowland, Marcel Nuys, Florian Huerkamp The German Competition Authority announces that it has initiated abuse proceedings against a social platform company for linkage with a virtual reality products brand (Oculus / Facebook)

231

The German FCO has not lost its appetite to take on major tech companies. Today, it has announced that it has initiated abuse proceedings against Facebook to examine the linkage between Oculus virtual reality products and Facebooks’ social network. The accusations against Facebook (...)

Mark Jephcott, Kyriakos Fountoukakos, Marcel Nuys, Peter Rowland, Tom Kemp, Anne Eckenroth The UK Competition Authority launches a market inquiry into the electric vehicle charging sector

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The CMA has today (2 December 2020) launched a market study into the electric vehicle charging sector in the UK. The study will consider two broad themes: how to develop a competitive sector while also attracting private investment to help the sector grow; how to ensure people using electric (...)

Veronica Roberts, Kyriakos Fountoukakos, Kristien Geeurickx, Christon Shenolikar The EU General Court annuls the Commission’s decision prohibiting an oligopolistic merger between two mobile network operators in the telecommunication sector on the basis that it did not result in the creation or strengthening of a dominant position (Telefónica UK / Hutchison 3G UK)

665

On 28 May 2020 the General Court handed down its ruling in CK Telecoms UK Investment Ltd v European Commission (Case T-399/16) in which it annulled the EU Commission’s decision which prohibited the proposed acquisition by CK Hutchison Holdings Ltd (Hutchison) of Telefónica Europe plc (O2). The (...)

Kyriakos Fountoukakos, Stephen Wisking, André Pretorius, Kristien Geeurickx The EU Commission publishes a Temporary Framework for assessing antitrust issues relating to business cooperation as a response to the urgency stemming from the COVID-19 pandemic

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On 8 April 2020 the Commission published a ‘Temporary framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak’ (Temporary Framework). The Commission recognises the exceptional challenges faced by (...)

Ruth Allen, Kyriakos Fountoukakos, Stephen Wisking The England & Wales Court of Appeal seeks to reinstate record fines imposed on pharmaceutical companies for abuse of dominant position through excessive and unfair pricing of an anti-epilepsy drug (Pfizer / Flynn)

323

On 10 March 2020 the UK Court of Appeal handed down its hotly anticipated judgment in Flynn Pharma Limited & Anr vs Competition and Markets Authority. The UK Competition and Markets Authority (CMA) was seeking to reinstate record fines totalling £89.4m imposed on pharmaceutical companies (...)

Kyriakos Fountoukakos, Dafni Katrana, Ruth Allen The EU Court of Justice clarifies the criteria for the pay-for-delay agreements in the pharmaceutical sector (Generics - UK / GlaxoSmithKline / Actavis / Xellia Pharmaceuticals / Merck / Alpharma)

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This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 30 January 2020 the European Court of Justice (“ECJ”) clarified for the first time the criteria governing whether so-called “pay-for-delay” agreements (...)

Kyriakos Fountoukakos, Stephen Wisking, Kristien Geeurickx The UK Government provides a withdrawal agreement for the Competition Authority’s merger control during the Brexit transition period and after

76

On 31 January 2020, at 11pm GMT, the UK ceased to be a Member State of the EU and the transition period provided for in Article 126 of the Withdrawal Agreement started to run. This briefing looks at the provisions in the Withdrawal Agreement that are relevant for merger control, both during (...)

Kyriakos Fountoukakos, Marcel Nuys, Florian Huerkamp The EU Commission imposes interim measures on an IT company for the first time in 20 years over alleged abuse of dominance position (Broadcom)

25

On 16 October 2019, the EU Commission ("the Commission") adopted interim measures against Broadcom in connection with its ongoing investigation into the company for abuse of a dominant position. The investigation started in June 2019 when the Commission opened an antitrust investigation to (...)

Kyriakos Fountoukakos, Marcel Nuys, Ruth Allen, Juliana Penz-Evren The German Minister of Economic Affairs and Energy submits a report on New Competition Framework for the Digital Economy

25

On 9 September 2019, the German "Commission Competition Law 4.0" (Commission) submitted its report "A New Competition Framework for the Digital Economy" (English summary available here) to the Minister of Economic Affairs and Energy. The Commission was set up by the minister in September 2018 (...)

Marcel Nuys, Kyriakos Fountoukakos, Ruth Allen, Juliana Penz-Evren The Düsseldorf Higher Regional Court grants a temporary injunction suspending the German Competition Authority’s landmark abuse of dominance decision against social network company pending the final determination of appeal (Facebook)

31

On 26 August 2019, the Düsseldorf Higher Regional Court (DHRC) granted a temporary injunction suspending the German Federal Cartel Office’s (FCO’s) landmark abuse of dominance decision against Facebook, pending final determination of the company’s appeal. In an important judgment with (...)

Kyriakos Fountoukakos, André Pretorius, Marcel Nuys, Florian Huerkamp, Peter Rowland The EU Commission opens a formal investigation into an association of insurance companies to assess whether competitors were prevented from acessessing its data pool (Insurance Ireland)

23

On 14 May 2019, the EU Commission ("the Commission") announced that it has opened a formal antitrust investigation into Insurance Ireland, an association of insurance companies active in Ireland ("Investigation"). The association administers a database (Insurance Link), to which its member (...)

Stephen Wisking, Susan Black, Kyriakos Fountoukakos, Kristien Geeurickx The UK Competition Authority disqualifies three former directors of companies involved in a bid rigging cartel in the design, construction and fit-out services market (Robb Simms-Davies / Trevor Hall / Oliver James Hammond)

122

On 10th May 2019 the CMA secured the disqualification of three former directors of companies involved in a bid rigging cartel in the design, construction and fit-out services sector. The three directors have given legally binding disqualification undertakings under which they will be banned (...)

Kyriakos Fountoukakos, Kristien Geeurickx, Stephen Wisking The EU Court of Justice holds that the principles applied in order to determine the relevant entities for liability for fines should also be applied to determine the relevant entities liable for damages under private damages claims (Vantaan kaupunki / Skanska)

172

In a preliminary ruling request made by the Finnish Supreme Court on the question of the relevant entities liable for damages, the Court of Justice of the EU (CJEU) held that principles applied in order to determine the relevant entities for liability for fines under Articles 101 and 102 TFEU (...)

Stephen Wisking, Veronica Roberts, Kyriakos Fountoukakos, Kristien Geeurickx The UK Competition Appeal Tribunal upholds the Competition Authority’s first infringement decision for breach of an interim order in a merger investigation (Electro Rent)

120

On 11 February 2019 the Competition Appeal Tribunal (CAT) upheld the CMA’s first infringement decision for breach of an interim order imposed on a completed merger under investigation. Electro Rent had served a break notice on the lease of its UK premises without first seeking the CMA’s (...)

Kyriakos Fountoukakos, Marcel Nuys, Peter Rowland, Juliana Penz-Evren The German Competition Authority forces a social network company to change its data collection policy (Facebook)

115

On 7 February 2019, after almost three years of investigation, Germany’s Federal Cartel Office ("FCO") issued its long awaited decision on Facebook’s data collection practices. The FCO found that Facebook has a dominant position on the German market for social networks, and abused this (...)

Stephen Wisking, Susan Black, Kyriakos Fountoukakos, André Pretorius The UK Competition Appeal Tribunal hands down its judgement upholding the Competition Authority’s decision that an online sales ban constituted a restriction of competition by object (Ping)

109

On 7 September 2018, the Competition Appeal Tribunal ("CAT") handed down its judgment in Ping upholding the Competition and Market Authority ("CMA")’s decision that Ping’s online sales ban ("OSB") constituted a restriction of competition by object under EU and UK competition law. The aim of (...)

Stephen Wisking, Kristien Geeurickx, Kyriakos Fountoukakos The EU General Court confirms that a bank investor was jointly and severally liable for the conduct of one of the cartelists (Goldman Sachs)

81

The General Court’s ruling in Goldman Sachs’ appeal in the power cables cartel confirms that the bank was jointly and severally liable for the conduct of Prysmian, one of the cartelists, because of the nature of its investment in the company. The General Court confirmed that the Commission was (...)

Stephen Wisking, Kyriakos Fountoukakos, Kristien Geeurickx The EU Court of Justice provides guidance on the standstill obligation which prevents parties from implementing their transaction before the EU Commission issues a clearance decision (EY / KPMG)

101

For the first time since the EU Merger Regulation (EUMR) came into force the Court of Justice of the EU (CJEU) has provided guidance on the scope the standstill obligation (Article 7(1) EUMR) which prevents parties implementing their transaction before the EU Commission issues a clearance (...)

Kyriakos Fountoukakos, André Pretorius The EU Court of Justice holds that a restriction imposed on an authorised retailer not to sell goods through online third-party platforms does not constitute an infringement (Coty Germany / Parfümerie Akzente)

97

In its hotly anticipated ruling in the Coty case, the Court of Justice of the EU (CJEU) has held today that, in the context of a selective distribution system, a restriction imposed on an authorised retailer not to sell the goods through online third-party platforms does not infringe Article (...)

Kyriakos Fountoukakos, André Pretorius, Sergio Sorinas The EU Commission sends a statement of objections alleging that multinational telecommunications company breached the EU Merger regulation by implementing its acquisition before notification or approval by the Commission (Altice / PT Portugal)

69

On 18 May 2017, the European Commission imposed a record fine of €110 million on Facebook for providing incorrect/misleading information to the Commission during its review of Facebook’s acquisition of WhatsApp under the EU merger regulation (EUMR). On the same day, the Commission issued a (...)

Kyriakos Fountoukakos, Sergio Sorinas, André Pretorius The EU Commission fines an undertaking €110 million for providing misleading information to the Commission during its review of the acquisition (Facebook / WhatsApp)

77

On 18 May 2017, the European Commission imposed a record fine of €110 million on Facebook for providing incorrect/misleading information to the Commission during its review of Facebook’s acquisition of WhatsApp under the EU merger regulation (EUMR). On the same day, the Commission issued a (...)

André Pretorius, Susan Black, Kyriakos Fountoukakos The EU Commission publishes its final report following its e-commerce sector inquiry as part of a larger digital market strategy that aims to achieve better access for consumers and businesses to online goods and services

196

On 10 May 2017 the EU Commission published its final report in the e-commerce sector inquiry launched in May 2015 as part of a wider Digital Market Strategy which aims to achieve better access for consumers and businesses to online goods and services across the EU. The aim of the sector (...)

Susan Black, André Pretorius, Kyriakos Fountoukakos, Sergio Sorinas The EU Commission fines three companies for participating in a cartel in the euro interest rate derivatives sector (Crédit Agricole / HSBC / JP Morgan Chase)

88

On 9 April 2019, the European Commission published the full text of its decision to fine Crédit Agricole, HSBC and JPMorgan Chase for participating in a cartel in the euro interest rate derivatives ("EIRD") sector. While four of the seven participating banks settled the case with the (...)

Kyriakos Fountoukakos, André Pretorius, Sergio Sorinas, Kristien Geeurickx The EU Court of Justice AG Wahl opts for a more effect-based approach on rebates and proposes an annulment of the EU General Court’s judgment (Intel)

112

In Intel’s appeal against the General Court’s judgement of June 2014 (which upheld the Commission’s decision that Intel abused its dominant position by virtue of operating exclusivity rebate schemes – see here for our e-bulletin on the judgment), Advocate General Wahl recommends that the Court (...)

Kyriakos Fountoukakos, André Pretorius The EU Commission publishes a preliminary report in its e-commerce sector inquiry as a response to the rapid growth in online sales activity

65

Yesterday the Commission published the much anticipated preliminary report in its ecommerce sector inquiry. The report was initiated in response to rapid growth in online sales activity over recent years and signals renewed commitment on the part of the EU in enforcing the competition rules in (...)

Sebastien Moore, Kyriakos Fountoukakos, Mark Jephcott, Dafni Katrana, Peter Rowland The EU General Court hands down a judgment concerning an appeal brought by an undertaking and several generic companies against an EU Commission decision which found that the parties had breached Article 101 TFEU by agreeing to delay the market entry of a generic drug (Lundbeck)

118

On 8 September 2016 the General Court (GC) handed down its judgments in relation to the appeals brought by Lundbeck and a number of generic companies (Sun Pharma (Ranbaxy), Arrow, Generics UK, Merck and Xellia/Alpharma) against a European Commission (Commission) decision finding that the (...)

André Pretorius, Henar González Durántez, Kristien Geeurickx, Kyriakos Fountoukakos, Michael Dietrich, Sergio Sorinas The EU Court of Justice rules on issues concerning retroactive rebates and the procedures through which these rebates can be characterized as abusive (Post Danmark II)

379

This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 6 October 2015, the European Court of Justice (the Court) issued its preliminary ruling in Post Danmark A/S v Konkurrencerådet (Competition (...)

Kyriakos Fountoukakos The UK Competition Authority orders licensing remedy to meet concerns over horizontal unilateral effects resulting from a merger in the personal lubricants market (Reckitt Benckiser / Johnson & Johnson)

477

Introduction and background On 4 November 2015, the UK Competition and Markets Authority ("CMA") accepted final undertakings from Reckitt Benckiser Group plc ("RB") and Johnson & Johnson ("J&J") in relation to RB’s proposed acquisition from J&J of the K-Y brand of personal (...)

Kristien Geeurickx, Kyriakos Fountoukakos The EU Court of Justice considers that the bilateral exchange of pre-pricing informations to a concerted practice with the object of restricting competition is an anticompetitive practice (Dole)

420

This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In its ruling of 19 March 2015 (Case C-286/13P) relating to the banana cartel, the Court of Justice of the EU (CJEU) dismissed the appeal by banana importer (...)

Kyriakos Fountoukakos The England & Wales Court of Appeal upholds the Competition Commission’s prohibition of a merger in the metal packaging coatings for beer and beverages market (Akzo / Competition Commission)

167

Background to the Court of Appeal judgment Akzo Nobel N.V. ("Akzo") is a company incorporated in the Netherlands. Its subsidiary, Akzo Coatings International BV ("ANCI"), was seeking to exercise its option to acquire 51% (and as a result control) of the shareholding in Metlac Holding S.r.l. (...)

Kyriakos Fountoukakos, Molly Herron The EU General Court upholds fine imposed on energy corporation for failing to notify a transaction highlighting the importance of compliance with merger control filing requirements (Electrabel)

788

1. Introduction On 12 December 2012 the EU General Court dismissed Electrabel’s appeal against the €20 million fine the European Commission had imposed on it for failing to notify a transaction - the acquisition of a minority shareholding - to the Commission under the EU Merger Regulation (...)

Kristien Geeurickx, Kyriakos Fountoukakos The EU Court of Justice dismisses pharmaceutical company’s appeal against the Commission and EU General Courts’ findings that it abused its dominant position by misusing patent systems and pharmaceutical marketing procedures to exclude generic competitors from the market and restrict parallel imports (AstraZeneca)

1567

1. Introduction The Court of Justice of the EU (ECJ) has dismissed AstraZeneca’s appeal against the Commission’s and General Court’s findings that the company abused its dominant position under Article 102 TFEU by misusing the patent system and pharmaceutical marketing procedures in order to (...)

Kyriakos Fountoukakos The UK OFT accepts commitments offered by a party to a completed acquisition in lieu of referring the case to the Competition Commission (Vue Entertainment International / Apollo Cinemas)

443

In May 2012 Vue Entertainment International Limited ("Vue") acquired sole control of Apollo Cinemas Limited ("Apollo"). In its decision of 24 August 2012 published in October 2012, the Office of Fair Trading ("OFT") stated that the acquisition had resulted or may be expected to result in a (...)

Kyriakos Fountoukakos The UK Competition Appeal Tribunal rules on the Competition Authority’s decision to continue an investigation on a merger in the aviation sector (Ryanair / Aer Lingus)

189

The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

Kyriakos Fountoukakos The UK Competition Commission finds that the joint venture between two of the largest suppliers of construction materials in the UK would give rise to substantial lessening of competition based on coordinated effects (Anglo American / Lafarge)

469

On 1 May 2012 the Competition Commission (CC) published its decision on the anticipated joint venture between Anglo American PLC and Lafarge SA in the market for construction materials. The CC concluded that the proposed joint venture would give rise to a substantial lessening of competition (...)

Kyriakos Fountoukakos The UK Competition Authority gives a provisional clearance to the anticipated joint venture between in-flight catering services companies (Alpha Flight / LSG Lufthansa Service)

630

Introduction On 10 October 2011, the UK Office of Fair Trading (the «OFT«) referred the anticipated 50/50 joint venture between in-flight catering services companies Alpha Flight Group Limited («Alpha«) and LSG Lufthansa Service Holding AG («LSG«) to the Competition Commission (the «CC«), (...)

Kyriakos Fountoukakos The UK OFT refers the anticipated joint venture between two in-flight caterers to the Competition Commission for in-depth investigation (Alpha Flight Group / Lufthansa Service)

340

Introduction On 10 October 2011, the UK Office of Fair Trading (the "OFT") referred the anticipated 50/50 joint venture between in-flight catering services companies Alpha Flight Group Limited ("Alpha") and LSG Lufthansa Service Holding AG ("LSG") to the Competition Commission (the "CC"), (...)

Kyriakos Fountoukakos The UK Competition Appeal Tribunal upholds the Competition Authority’s decision that it is "in time" to investigate the acquisition of a minority shareholding in a merger case concerning the air transport sector (Ryanair / Aer Lingus)

1148

All views expressed are strictly personal views of the author. The present case note does not constitute legal advice and should not be relied on as such. The author would like to thank Natalia Sivakumaran, associate at Herbert Smith LLP in London, for her assistance with the preparation of (...)

Kyriakos Fountoukakos The UK Competition Appeal Tribunal orders the Competition Commission to reconsider its clearance of a merger on the basis of the absence of vertical concerns (Ticketmaster / Live Nation)

1812

Following a reference of the case to it from the OFT, on 22 December 2009, the UK Competition Commission ("CC") announced that it had decided to clear unconditionally the proposed merger of Ticketmaster Entertainment Inc. ("Ticketmaster"), a ticketing agent, and Live Nation Inc. ("Live (...)

Kyriakos Fountoukakos The UK’s Office of fair trading clears merger in newspaper and magazine distribution sector by reference to forward-looking counterfactual (Smiths News Trading / Surridge Dawson)

2363

On 28 August 2009, the UK’s Office of Fair Trading ("OFT") announced that it had unconditionally cleared the acquisition of assets by Smiths News from Surridge Dawson (the "Transaction"). Both parties were active in the supply of wholesale newspaper and magazine distribution in the UK. The (...)

Kyriakos Fountoukakos The UK OFT accepts undertakings in newspaper merger, clarifying that its de minimis guidance is not a "get out of jail free" card for small mergers (Dunfermline press / Berkshire regional newspapers)

4638

On 4 February 2008, the Office of Fair Trading ("OFT") announced that it had suspended its duty to refer Dunfermline Press Limited‘s ("DPL ") acquisition of the Berkshire Regional Newspapers ("BRN") portfolio of 8 local newspaper titles from Trinity Mirror plc to the Competition Commission (...)

Kyriakos Fountoukakos The UK’s OFT unconditionally clears a merger in the airline sector concluding that evidence of new market entry can mitigate high market shares (easyJet / GB Airways)

3389

On 18 January 2008, the UK’s Office of Fair Trading (“OFT”) announced that it had cleared unconditionally the purchase of GB Airways Limited (“GB Airways”) by easyJet Airline Company Limited (“easyJet”). The OFT focused on relatively narrowly defined markets, considering scheduled flights (...)

2954 Review

Camille Puech-Baron, Kyriakos Fountoukakos China/EU: The gradual evolution of the EU Commission’s merger control decisional practice towards SOEs amidst an increasingly protectionist world

902

This article has been nominated for the 2018 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. This article updates the article published by the authors in 2012 on the treatment of Chinese SOEs involved in acquisitions of European companies under the EU (...)

Camille Puech-Baron, Kyriakos Fountoukakos The EU merger regulation and transactions involving states or state-owned enterprises: Applying rules designed for the EU to the People’s Republic of China

1369

In 2011, the European Commission cleared five concentrations involving Chinese State-owned companies under the EU Merger Regulation using rules that were primarily designed to apply to European State-owned companies and entities. The sensitivity of the issue of Chinese takeovers of European (...)

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