Philip Bentley is Partner at McDermott Will & Emery, based in Brussels. He focuses his practice principally on EU antitrust and EU anti-dumping, and also extends to related matters such as state aid, subsidies, customs, marketing authorizations (notably for genetically modified organisms (GMOs)) and judicial review litigation before the EU General Court and Court of Justice. For nearly four decades, Philip has experienced the significant evolution of competition and state aid law, the implementation of the European Commission’s ambitious 1992 program for the creation of the Single Internal Market, and the visionary enlargement of the scope of EU law brought about by the successive treaties of Maastricht, Amsterdam, Nice and Lisbon. He was involved in landmark court cases during this period, including William Cook, on the standing of a competitor to make a complaint about illegal state aid, Petrotub on zeroing in anti-dumping investigations, and Eurocoton on the obligation of the Council to state reasons for not acting on a commission proposal for trade defense action.
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On June 15, 2022, the EU General Court (GCEU) annulled the EU Commission’s (EC) decision C (2018) 240 final dated January 24, 2018 in Case AT.40220 in which the EC had imposed a fine of EUR 997.439 million on Qualcomm Inc. (Qualcomm) for having allegedly abused its dominant position on the (...)
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The EC’s review of Illumina’s acquisition of GRAIL raises two novel issues: the assertion of jurisdiction by the EC over transactions that do not meet any national or EU jurisdictional merger control tests, and the use of interim measures to stop parties closing a transaction where the EC has (...)
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By decision of 20 May 2021, the EC found that Bank of America, Natixis, Nomura, RBS (now NatWest), UBS, UniCredit and WestLB (now Portigon) breached EU antitrust rules through the participation of a group of traders in a cartel on the primary and secondary markets for European Government Bonds (...)
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On 20 April 2021, the EC issued its settlement decision by which it fined Deutsche Bahn (DB) and Société Nationale des Chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen (SNCB) a total of approximately EUR 48 million for participating in a cross-border customer allocation (...)
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On 25 March 2021, the CJEU dismissed all the appeals brought by Danish pharmaceutical company H. Lundbeck A/S and five generic manufacturers against the judgments of the GCEU, thus upholding a decision of the EC on patent settlement agreements between Lundbeck and five generic manufacturers (...)
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On 18 March 2021, the CJEU ruled on the appeal by Pometon SpA against the GCEU’s judgment in the steel abrasives cartel case. The CJEU ruled that the GCEU had breached the principle of equal treatment when recalculating the EC’s fine imposed on Pometon, the only non-settling party in this (...)
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On 20 January 2021, the EC fined Valve Corporation and five publishers, Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax, a total of EUR 7.9 million for breaching antitrust rules by partitioning the EEA market. Background Valve, together with the five publishers, restricted (...)
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On 15 December 2020, the EC published a package of proposed measures on digital markets and digital services: A Digital Services Act (DSA) (a proposed Regulation on a Single Market for Digital Services and amending Directive 2000/31/EC – COM (2020) 825 final) A Digital Markets Act (DMA) (a (...)
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On 17 December 2018, the EC announced its decision to fine the clothing and accessories company Guess EUR 39.821 million for restricting retailers from online advertising and selling cross-border to consumers in other Member States. By doing so the company was able to maintain artificially (...)
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On 4 December 2018, the Council adopted the Directive 2019/1 to enable Member State competition authorities to be more effective enforcers (ECN+). This adoption followed an agreement reached with the European Parliament at first reading. In March 2017, the EC published a proposal for a new (...)
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The application of the GDPR from 5 May 2018 has had a significant impact on the way companies manage their data in various areas. In the field of competition, the GDPR might well cause companies that face competition investigations to wonder whether they should provide personal data in (...)
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EUROPEAN PARLIAMENT, COUNCIL AND EC PROPOSE EU FRAMEWORK FOR FOREIGN DIRECT INVESTMENT SCREENING On 20 November 2018, the European Parliament, the Council and the EC agreed on a framework for the screening of foreign direct investment (FDI) on grounds of security or public order. This new (...)
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CJEU REFERS SMART CARD CHIPS CARTEL CASE BACK TO GCEU, DISMISSES PHILIPS APPEAL On 26 September 2018, the CJEU considered that the GCEU had not taken into account certain possibly mitigating circumstances—namely the relatively small number of Infineon’s unlawful contacts with other cartel (...)
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Non-EU inward investors in Germany should be aware of recent developments in German Government policy towards foreign investment in strategic infrastructure and security sensitive areas. Electricity infrastructure is an area that is particularly sensitive for strategic and security (...)
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On 27 July 2018 the French Competition Authority (FCA) imposed a EUR 20 million fine on Fnac Darty for failing to comply with its divestment commitments following Fnac’s acquisition of the Darty group. This is the first time the FCA has imposed a fine on a company for failing to comply with a (...)
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All State Aid decisions taken by the EC can be subject to an action for annulment. In practice, however, it has been very difficult for complainants to successfully bring admissible actions for annulment of EC decisions approving aid because of EU courts’ strict interpretation of the locus (...)
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On 25 July 2018 the CJEU dismissed an appeal by Orange Polska SA against a GCEU judgment upholding an EC decision that imposed a fine of more than EUR 127 million on Orange for abusing its dominant position. The CJEU confirmed that, as in the case of a cartel, the EC does not have to take (...)
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Vertical restrictions, including resale price maintenance (RPM), have not generally been an EC enforcement priority over the last 10 years, but a series of rulings in July 2018 signalled a potential change in that trend. Although the EC considers RPM to be a “hardcore restriction” of (...)
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Article L. 430-7-1, II of the French Commercial Code provides that the French Minister of Economy and Finance has the power to re-examine a merger within 25 working days after receiving the French Competition Authority (FCA) decision, for reasons of public interest other than safeguarding (...)
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In this difficult case, the EC had to reduce the fines calculated for each of the cartel participants so as to remain within the unalterable limit of 10 per cent of total worldwide group turnover. The EC claimed that it had sought to treat the various cartel participants equally in making the (...)
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This judgment of the Higher Regional Court of Frankfurt/Main of 12 July 2018 applying the preliminary ruling of the CJEU of 6 December 2017 in the case Coty Germany GmbH v Parfümerie Akzente GmbH will reassure manufacturers of luxury products that they can protect such products from (...)
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On 12 July 2018, by its judgment in Case T-419/14 The Goldman Sachs Group v Commission, the GCEU entirely dismissed the appeal brought by The Goldman Sachs Group, Inc., against an EC decision in Case AT. 39610 Power Cables, fining Goldman Sachs EUR 37.303 million for its parental liability (...)
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On 5 July 2018, the CJEU handed down a judgment in response to a request for a preliminary ruling from the Lithuanian Court of Appeal in which it provided welcome clarifications of the interpretation of Articles 5(3) and 5(5) of Regulation No 44/2001 (Brussels I Regulation). These articles (...)
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By order of 12 June 2018, the Vice President of the CJEU dismissed the appeal lodged by Nexans France SAS and Nexans SA (collectively, Nexans) against the order of the President of the GCEU of 12 July 2017. The latter rejected Nexans’s application for an interim injunction to prevent the EC (...)
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This landmark judgment of the German Federal Court of Justice concerns an action for damages relating to the German cement cartel. However, the judgment has much wider implications and is relevant for damage claims relating to other cartel infringements. The Federal Court extended the (...)
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Deutsche Lufthansa AG is a joint founder member of Star Alliance, the largest global airline alliance. In addition to the Star Alliance Agreement, Lufthansa concluded with Scandinavian Airlines System (SAS) a bilateral alliance agreement, a marketing and sales agreement, and a bilateral joint (...)
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When drawing up an acquisition agreement in a transaction that will be notifiable to the EC for clearance under the EUMR, the acquirer must ensure that any veto or similar rights that it has prior to implementation of the transaction are strictly limited to that which is necessary to preserve (...)
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The CJEU held that a finding of a “competitive disadvantage” as the result of discriminatory pricing by a dominant undertaking on a downstream market does not require demonstration of an actual and quantifiable deterioration of a customer’s competitive situation on that market. This notion (...)
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In its judgment of 10 April 2018, the CJEU decided that Germany did not infringe EU law by extraditing an Italian national to the United States. An EU Member State is not required to extend a prohibition on the extradition of its own nationals to all EU citizens, but before proceeding to (...)
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The Higher Regional Court of Hamburg had the opportunity to establish a position regarding potential restrictions of competition in selective distribution arising out of bans on selling products through eBay and similar platforms. The Higher Regional Court referred to recent case law of the (...)
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The Higher Regional Court of Düsseldorf decided that neither online nor offline sellers can invoke exhaustion of rights under Article 15(1) of the EU trademark regulation if they sell high-quality, prestigious cosmetic products without appropriate presentation to avoid impairment of (...)
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When considering whether a measure constitutes State aid for the purposes of Article 107(1) TFEU and applying the well-established private operator principle, one should take into account both the private creditor test and that of the private investor depending on the nature of the (...)
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The so-called Geo-Blocking Regulation, Regulation (EU) 2018/302, became directly applicable throughout the European Union on 3 December 2018. The Regulation is part of the European Union’s single market strategy to enable consumers and businesses to benefit fully from the opportunities (...)
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This judgment arises out of an application by Edeka- Handelsgesellschaft Hessenring mbH (Edeka) for access to the EC’s decision and table of contents of the file in settlement proceedings concerning four banks involved in the Euro Interest Rate Derivatives (EIRD) cartel. The judgment (...)
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This State aid case gives interesting indications regarding the definition of an undertaking and the economic or non-economic nature of its activities. The GCEU pointed out that merely being in a position of competition on a given market does not determine the economic nature of an activity, (...)
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In four separate judgments of 1 February 2018, the CJEU upheld fines imposed by the EC on freight forwarders for participating in cartels in the international air freight forwarding services sector. The case is interesting for its consideration of (i) the fact that the EC relied on evidence (...)
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On 24 January 2018 the EC fined Qualcomm EUR 997 million for hindering competition on the market for Long-Term Evolution (LTE) basebands chips, in breach of Article 102 TFEU. Baseband chipsets, which enable smartphones and tablets to connect to cellular networks, are used both for voice and (...)
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On 23 January 2018, the CJEU rendered its judgment in the case Hoffman-La Roche and Others v AGCM, providing clarification on important aspects of competition law in the pharmaceutical sector. The CJEU rendered its judgment pursuant to a request for a preliminary ruling by the Italian (...)
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EUROPEAN COMMISSION CHALLENGES PUBLIC PRICE ANNOUNCEMENTS BY SHIPPING LINER COMPANIES* On 7 July 2016, the European Commission adopted a decision accepting commitments by 14 shipping liner companies to change their practices concerning announcements of intended price increases for (...)
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A NEW CONCEPT IN CARTEL FINING: "DIRECT EEA SALES THROUGH TRANSFORMED PRODUCTS"* On 9 July 2015, the Court of Justice of the European Union (CJEU) issued its judgment in InnoLux Corp. v Commission C-231/14P, confirming the existence of a new concept in cartel fining: “direct European (...)
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CJEU RULES MAXIMUM CARTEL FINE APPLIES ONLY TO INFRINGING SUBSIDIARY TURNOVER AND REDUCES FINE BY €17 MILLION* On 4 September 2014, the Court of Justice of the European Union (CJEU) confirmed that the maximum fine of 10 per cent of turnover imposed on the infringing subsidiary of a (...)
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UK GOVERNMENT ANNOUNCES PROPOSALS FOR AN "OPT-OUT" COLLECTIVE COMPETITION DAMAGES ACTION * On 29 January 2013, the UK Government’s Department for Business, Innovation & Skills announced new proposals designed to improve the ability for consumers and businesses to bring collective damages (...)
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RELEASE OF CONFIDENTIAL CARTEL INFORMATION BY EUROPEAN COMMISSION TO ENGLISH HIGH COURT SUSPENDED* On 29 November 2012, the EU General Court (GC) issued a provisional order suspending the European Commission’s decision to communicate to the High Court of England and Wales a copy of Alstom’s (...)
