Alexandre Lacresse

Fidal (Paris)
Lawyer (Counsel)

Alexandre Lacresse is a lawyer. He previously worked more than 10 years as a référendaire (clerck) at the European Court of Justice and as a case-handler at the French Competition Authority. He is also a co-Director of the Master-DJCE in Business Law at the University of Lorraine and teaches Competition and European Law in several Masters. He regularly writes articles for Concurrences and for other law revues.

Distinctions

Best Lawyer 2020 - Competition/Antitrust law

Linked authors

Fidal (Paris)
French Cour de cassation (Paris)
Université Versailles Saint-Quentin-en-Yvelines
Milan Court of Appeal
University of Palermo
Paris Commercial Court
Frieh Associés (Paris)

Videos

Alexandre Lacresse (Fidal)
Alexandre Lacresse 28 March 2019 Paris

Articles

1241 Bulletin

Alexandre Lacresse Agency agreements: An overview of EU and national case law

1080

Discussions on agency agreements have long focused on the distinction between “genuine” and “non-genuine” agents and on the question of who, between the principal and the agent, bears the risks. As the literature on this distinction is profuse, the current article will mainly attempt to give an overview of recent cases in which principals and/or agents were found liable for anticompetitive behavior under Article 101(1) or 102 TFUE, especially where the agreement facilitated collusion or price control. The principal’s liability for its agent’s conduct is particularly at stake in such cases.

22889 Review

Alexandre Lacresse Statement of objections: The Court of Justice of the European Union rules there is no right to access to the replies given to the statement of objections by the addressees of that statement (Verwaltungs)

25

In the so-called ’electrical cables’ case, the Commission had, inter alia, penalised the applicants (Eur.Comm., Dec. C(2014) 2139 final, 2 April 2014, Case AT.39610 - Electrical cables - Commission Decision C(2014) 2139 final, 2 April 2014).), which were subsequently dismissed by the Court of (...)

Alexandre Lacresse Commitments: The General Advocate Pitruzzella suggests to the Court of Justice of the European Union to rules that the European Commission shall take into account third parties’ rights when commitments rendered legally binding implies the termination of contracts involving third parties (Canal +)

42

In this case, the applicant contests the Commission’s decision making binding commitments offered to it by a multinational producer of audiovisual content in order to meet competition concerns arising from contractual clauses guaranteeing it and a television broadcaster a licence of absolute (...)

Alexandre Lacresse, Barbara Monti Inadmissibility: The General Court of the European Union upholds the decision of the European Commission rejecting a complaint when certain practices of which have already been dealt with by a National Competition Authority (LL-Carpenter)

75

Ten years of proceedings is how long it took to foresee the closure of this case, which allows the Commission to reconsider its powers to reject complaints where, under Article 13(2) of Regulation 1/2003, a complaint is ’already being dealt with by another competition authority’. It all began in (...)

Alexandre Lacresse Whistleblowing procedures: The European Parliament and the Council adopt a directive aimed at ensuring a minimum level of protection for those who report infringements of European Union law

109

Directive 2019/1937 , which entered into force on 16 December 2019, establishes common minimum standards for the protection of persons who report breaches of EU law (Article 2). To date, only ten Member States have comprehensive legislation on the protection of whistleblowers. A wide range of (...)

Alexandre Lacresse, Barbara Monti Interim measures: The European Commission for the first time imposes interim measures in TV and modem chipset markets since the entry into force of Regulation 1/2003 (Broadcom)

115

It took 18 years for the European Commission to issue provisional measures on the basis of Article 8 of Regulation No 1/2003. Indeed, the last time the Commission imposed interim measures was in 2001 in the IMS Health case (EC Commission, press release IP/01/941 of 3 July 2001, The Commission (...)

Alexandre Lacresse, Barbara Monti Inadmissibility: The General Court of the European Union considers inadmissible an action based on general information which does not make it possible to establish that the State aid decision placed the applicant at a competitive disadvantage (Opere Pie d’Onigo)

127

On 24 September 2019, the Court of First Instance of the European Union made an order dismissing as inadmissible the action brought by a non-profit-making public body, by reference to the Montessori case-law (CJEU, 6 Nov. 2018, Scuola Elementare Maria Montessori, cases C-622/16 P to C-624/16 P, (...)

Alexandre Lacresse, Barbara Monti Private enforcement: The Court of Justice of the European Union recognises that the indirect victim of a cartel may bring an action before the courts from his domicile even if there is no contractual relationship with the defendant company (Tibor-Trans)

216

Each request for reparation has its own specificity. Here, the absence of a direct contractual link between the victim undertaking and the defendant undertaking allows the Court of Justice of the European Union once again to consider the concept of the ’place where the harmful event occurred or (...)

Alexandre Lacresse, Barbara Monti Annulment: The Court of Justice of the European Union confirms, for lack of reasons, the annulment of the fine imposed on an undertaking for its role as facilitator of a cartel (ICap)

131

Judgments recalling the European Commission’s obligation to state reasons in competition matters are legion. One recalls in particular the recent UPS judgment, in which the Court confirmed the annulment of the Commission’s decision prohibiting a merger on the grounds that the parties had not been (...)

Alexandre Lacresse, Barbara Monti Rights of defence: The Court of Justice of the European Union rules that the ne bis in idem principle does not apply to a decision of a national competition authority imposing two fines through the parallel application of national and Union law (Powszechny Zakład Ubezpieczeń na Życie)

215

At the beginning of this preliminary ruling case, a Polish company was sanctioned by the national competition authority for having abused its dominant position on the market for group life insurance, both under national law for the period 2001-2007 and under EU competition rules, but only for (...)

Alexandre Lacresse, Barbara Monti Period for appeal: The Court of Justice of the European Union confirms that an omission which does not affect the understanding of the reasons for a decision does not preclude the application of the two-month period for appeal (Eco-Bat Technologies)

110

In the present case, the Court of First Instance was criticised for dismissing as inadmissible the action brought against a corrective decision, even though the Commission had omitted in its initial decision information concerning the determination of the basic amount of the fine to be imposed (...)

Alexandre Lacresse, Barbara Monti Access to file: The Court of Justice of the European Union confirms the annulment of the European Commission’s decision prohibiting a merger because of the failure to communicate to the parties the econometric model on which that decision was based (UPS, TNT)

197

In the field of mergers, there have been few judgments annulling Commission decisions based on violation of the rights of defence. The latest was in 2002, when the Court of First Instance ruled that the lack of clarity and precision of certain Commission objections infringed the rights of (...)

Alexandre Lacresse, Barbara Monti Reasonable time: The Court of Justice of the European Union annuls several judgments of the General Court of the European Union on the ground of lack of sufficiently direct causal link between the violation of reasonable time for adjudication and the loss suffered following payment of bank guarantee fees during the period beyond this period (Gascogne ; Kendrion ; ASPLA, Amando Álvarez)

209

The judgments of the ECJ under chronicle bring to a close the judicial saga dating back to February 2006, when the companies of the Gascogne group, Kendrion, ASPLA and Armando Álvarez brought an action before the Court of First Instance to have the Commission’s decision annulled, penalising them (...)

Christophe Lemaire, Alexandre Lacresse, Julie Bousin Competition policy: The European Parliament and the Council adopt the ECN+ Directive which reinforces the institutional and procedural convergence within the European Competition Network (Directive 2019/1)

321

One recalls that about two years ago, the Commission made public a proposal for a directive aimed at providing NCAs with the means to implement the competition rules more effectively (see Ch. Lemaire, ECN: The European Commission makes public a proposal for a directive aimed at providing NCAs (...)

Alexandre Lacresse Jurisdiction clause: The Court of Justice of the European Union admits the application of a jurisdiction clause to disputes arising from an infringement of Article 102 TFEU even if they are not specially covered by the clause (Apple Sales International...)

148

In the present case, in 2002, a supplier had concluded an authorised reseller agreement whereby its partner undertook to distribute its products on a virtually exclusive basis. That agreement contained a clause conferring ’general’ jurisdiction on the Irish courts. In 2012, the Distributor sued (...)

Alexandre Lacresse Unlimited jurisdiction: The Court of Justice of the European Union upholds the judicial review of the General Court of the European Union on certain elements of the cartel and criticizes, for the same reason, the latter’s proportionality review on the amount of the fine (Infineon Technologies)

162

That case raised mainly two procedural questions: the first, on the intensity of the review of legality which the Court of First Instance may exercise over Commission decisions on anti-competitive practices and, the second, on the assessment by the Court of First Instance of the amount of the (...)

Alexandre Lacresse Lack of Union interest: The Court of Justice of the European Union confirms the margin of discretion left to the European Commission in the assessment of complaints referred to it (Agria Polska...)

77

In this case, several Polish companies complained to the Court of First Instance that it had upheld the decision rejecting their complaint, in the absence of any interest for the European Union in continuing the practices complained of. In the present case, they had previously accused thirteen (...)

Alexandre Lacresse Legitimate interest: The Court of Justice of the European Union considers that the European Commission does not have to prove a legitimate interest in finding a past infringement when it intends to impose a fine or order the cessation of the infringement (Orange Polska)

155

In this case, the Commission found that the applicant held a dominant position on several markets and considered that it had abused its dominant position on certain wholesale markets, with the aim of protecting its position on the retail market by developing a strategy to limit competition at (...)

Alexandre Lacresse Damage: The Court of Justice of the European Union rules that losses suffered as a result of predatory pricing may constitute damage which establishes the jurisdiction of the courts of the place where it has materialised for the purpose of an action for compensation (flyLAL-Lithuanian Airlines)

412

This case raises the very interesting question of the fate of an action for compensation for anti-competitive damage in an international context, in particular in that it asks about the ’place where the harmful event occurred’ within the meaning of the 1968 Brussels Convention on jurisdiction and (...)

Alexandre Lacresse Value of sales: The Court of Justice of the European Union rejects claims brought against judgements of the General Court of the European Union which confirmed the European Commission’s decisions in the international air freight forwarding services cartel (Kühne ; Nagel International ; Schenker ; Deutsche Bahn ; Panalpina World Transport)

156

As these cases have already been the subject of a commentary in the Cartel Chronicle in this issue, we shall confine ourselves to indicating that the Court has been called upon to rule, without however having to go back over its established case-law, on the rules applicable to the calculation (...)

Alexandre Lacresse Challengeable act: The Court of Justice of the European Union considers the formal notice by which the European Commission seeks payment of the fine imposed by the General Court of the European Union in the exercise of its full jurisdiction to be unchallengeable (Trioplast Industrier)

149

This case is a further opportunity to consider the concept of a challengeable act in Union law. It should be noted from the outset that it is similar to the Total and Elf Aquitaine case (CJEU, 19 January 2017, Commission v Total and Elf Aquitaine, Case C-351/15 P; this Chronicle, Concurrences (...)

Alexandre Lacresse Commitments: The Court of Justice of the European Union confirms that national courts can rule on the legality of conduct covered by undertakings made mandatory by the European Commission (Gasorba)

151

In this case, the question was whether national courts, or even national authorities, can examine the conformity with the competition rules of facts which have been previously submitted to the Commission for assessment and which have been the subject of a commitment decision by the Commission. (...)

Alexandre Lacresse Partial annulment : The Court of Justice of the European Union considers that the failure to state reasons raised of its own by the General Court of the European Union cannot lead to the annulment of an act beyond what is requested from it (British Airways)

215

This case raised a question of pure procedure before the courts of the Union, which goes beyond the scope of competition matters alone. Since the Court of First Instance, of its own motion, found that the statement of reasons which vitiated the Commission’s decision of 2010 in the air cargo case (...)

Alexandre Lacresse Hearing : The Court of Justice of the European Union considers that national competition authorities must be able to present their views on the substance of a case before the European Commission adopts its decision (Feralpi ; Ferriera ; Riva Fire)

142

In that case, the Commission had issued a decision penalising the applicants for their participation in a cartel in the reinforcing bar production sector. That decision, based on Article 65 of the ECSC Treaty and taken in accordance with the procedural rules specific to that provision, was (...)

Alexandre Lacresse Statement of objections: The Court of Justice of the European Union upholds the European Commission’s procedural choice to address the statement of objections only to the parent companies and not to their joint venture (LG Electronics et Koninklijke Philips Electronics)

200

In the present case, the applicants had in 2001 combined their cathode ray tube production activities in a joint subsidiary. However, in 2012, the Commission sanctioned a cartel on the market for cathode ray tubes for television sets and computer screens. Considering that the subsidiary was in (...)

Alexandre Lacresse Jurisdiction: The Court of Justice of the European Union strengthens the Commission’s jurisdiction to assess practices carried out outside the territory of the European Union and requires that interviews conducted as part of its investigations be recorded (Intel)

209

In this case, the Commission sanctioned Intel for two types of behaviour towards its trading partners, namely conditional rebates and so-called undisguised restrictions, such as payments on the condition of delaying the launch of certain products. As for the conditional rebates, known as (...)

Alexandre Lacresse Confidentiality: The Court of Justice of the European Union upholds the limited scope of the confidentiality of the information produced by the leniency applicant (AGC Glass Europe)

185

Sanctioned by the Commission for their participation in a cartel practice in the sector of glass production for the motor vehicle industry, the applicants criticised the disclosure by the Commission of certain information on the occasion of the publication of the non-confidential version of the (...)

Alexandre Lacresse Confidentiality: The Paris Court of Appeal confirms the confidential nature of the documents of the settlement procedure and rejects the applicant’s requests for access (Direct Énergie / Engie)

206

In this case, the applicant had initially obtained protective measures from the Competition Authority in respect of a former historical monopoly, which consisted in particular of making data from its customer file available to its competitors (Aut. conc., 9 Sept. 2014, Dec. No. 14-MC-02, p. (...)

Alexandre Lacresse Evidence submitted by national tax authorities: The Court of Justice of the European Union accepts that the European Commission may use evidence transmitted by a national authority other than a competition authority (FSL)

113

In 2007, the Commission received documents from the Italian customs and financial police which, together with the evidence gathered during inspections carried out at the premises of various companies, enabled it to adopt a decision finding that several major importers of bananas in Northern (...)

Alexandre Lacresse Liability between parent company and subsidiary: The Court of Justice of the European Union excludes the benefit to a parent company of the limitation period expired vis-à-vis its subsidiaries (Akzo Nobel)

299

In this case, the European Commission sanctioned several companies of the same group, two of which had directly participated in the cartel practices in the heat stabiliser sector (Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV). A third, their parent company (Akzo Nobel), was considered (...)

Alexandre Lacresse Leniency: The Court of Justice of the European Union rules on the limits of the Hearing Officer’s mandate and the expectations which the leniency applicant may legitimately claim with regard to the disclosure of information (Evonik Degussa)

179

In 2006, the European Commission sanctioned a cartel in the hydrogen peroxide sector. As the applicant was the first to contact the Commission and cooperated fully, it was granted full immunity from fines under the leniency programme. The Commission then intended to publish a non-confidential (...)

Alexandre Lacresse Single economic entity: The Court of Justice of the European Union confirms that the liability of the parent company for payment of the fine cannot exceed that of its subsidiary (Total and Elf Aquitaine)

142

In this case, the Court had the opportunity to rule on the extent of a parent company’s liability for the offending acts of its subsidiary. In its decision on methacrylates, the Commission fined not only the subsidiary which had initiated the practices, but also its parent companies. As they (...)

Alexandre Lacresse Hybrid settlement: The Court of Justice of the European Union confirms that the amount of the fine proposed as a settlement does not support the legitimate expectations of the parties to the cartel on the amount finally decided in the ordinary procedure following their withdrawal from the settlement procedure (Timab Industries and Cie financière et de participations Roullier)

182

This is the first hybrid settlement case in which the compromise procedure and the ordinary procedure are successively combined, a case which has been commented on many times (inparticular, P. Cardonnel, Concurrences No. 3-2015, p. 150) knows its epilogue with the present judgment. Convicted (...)

Alexandre Lacresse Rights of defense: Advocate General Whal proposes to the Court of Justice of the European Union to set aside the judgment of the General Court of the European Union in the case of ‘concrete reinforcing bars’ on the ground that the European Commission did not follow the procedure laid down by the rules in force after the expiry of the ECSC Treaty (Feralpi Holding)

117

In that case, the Commission had issued a decision penalising the applicants for their participation in a cartel in the reinforcing bar production sector. That decision, based on Article 65 of the ECSC Treaty and in accordance with the procedural rules specific to that provision, was (...)

Alexandre Lacresse Recevabilité : Advocate General Kokott proposes to the Court of Justice of the European Union to admit the admissibility of evidence fortuitously discovered in the course of a national tax procedure and their use by the European Commission (FSL Holdings)

162

The central issue in this case is whether the Commission can use evidence and information provided by a national tax authority to sanction a cartel practice. In 2011, the applicants had been convicted of a cartel on the banana market in southern Europe between 2004 and 2005. The Commission (...)

Alexandre Lacresse Fines: The Court of Justice of the European Union validates the retroactive application of the Guidelines on fines (ORI Martin et Siderurgica Latina Martin, Trafilerie Meridionali)

137

Of those appeals concerning the prestressing steel case, the Court of Justice validated the application by the Court of First Instance of the 2006 Guidelines on the method of setting fines instead of the 1998 Guidelines on fines, for cartel acts implemented up to 2002. That application had the (...)

Alexandre Lacresse Fines: The Court of Justice of the European Union finds that the value of sales should only reflect the economic importance of the infringement and the weight of the undertaking in it (Pilkington Group)

120

In that case, the Court of Justice had appealed against the judgment of the Court of First Instance which had validated the Commission’s decision sanctioning a cartel in the motor-glass sector. The appellants essentially contested the methods of calculation of their fine applied by the (...)

Alexandre Lacresse Fines: The Court of Justice of the European Union holds that disputes over the payment of fines does not fall under the Civil and Commercial Matters of Regulation 44/2001 (Gazdasági Versenyhivatal)

91

Regulation 44/2001 incorporated the Brussels Convention of 27 September 1968 into Union law. Following the latter, it concerns jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Like the Brussels Convention, it does not cover revenue, customs or (...)

Alexandre Lacresse Arbitration: The Court of Justice of the European Union admits a request for a preliminary ruling submitted in the context of an appeal against an arbitration award (Genentech)

172

At the origin of the preliminary ruling was a worldwide non-exclusive licence agreement under which the licensee was required to pay three royalties for the right to exploit a technology. It is true that the licensee had indeed paid both the one-off royalty and the annual royalty. On the other (...)

Alexandre Lacresse Reasonable period to adjudicate: The Court of Justice of the European Union notices one more time the General Court’s failure to adjudicate within a reasonable period and sends it back the responsibility to decide on the compensation for the damage suffered (CEPSA, PROAS, Repsol)

272

Of these three judgments, we note, at the procedural level, the confirmation of the case law, now well established, relating to the violation by the Court of First Instance of the reasonable time limit for judgment (CJEU, 23 Nov. 2013, Groupe Gascogne v Commission, C-58/12 P, Kendrionv (...)

Alexandre Lacresse European Competition Network: The European Parliament analyses the roles and powers assigned to national competition authorities (NCAs) and calls for a strengthening and clarification of the European Competition Network’role (ECN)

263

At the request of the European Parliament’s Committee on Economic and Monetary Affairs, the Directorate-General for Home Affairs has been examining the advisability of reforming European competition law and establishing decentralised application of these rules within the European Competition (...)

Alexandre Lacresse Request of information: The Court of Justice of the European Union annuls a request for information whose purpose is not sufficiently clear and precise (HeidelbergCement)

123

The Commission may, by means of a decision, request information from undertakings, sometimes in very large quantities (Reg. 1/2003, Art. 18, para. 3). Like any decision, that decision is subject to the obligation to state reasons, and that is what the Court of Justice has reminded the Court of (...)

Alexandre Lacresse Merger: The Court of Justice of the European Union accepts the retroactivity effect of a Commission’s decision taken pursuant a judgement of the General Court of the European Union (Éditions Odile Jacob)

104

In this case, the Court approved the Court of First Instance which had upheld the legality of the Commission’s decision approving the purchaser of certain assets in the context of a concentration. The special feature was that the contested decision replaced a previous decision annulled by the (...)

Alexandre Lacresse Presumption of innocence: The Court of Justice of the European Union considers that the principle of the presumption of innocence prevents to deduct the undertaking’s participation in the agreement from the sole sending of an email (Eturas)

340

This case raised the delicate question of proof of the existence of a concerted practice, in particular when such proof is limited to a single indication, in this case an e-mail announcing the introduction of an automatic mechanism for setting a discount ceiling, and when acquiescence in the (...)

Alexandre Lacresse Unlimited jurisdiction: The Court of Justice of the European Union finds that the General Court’s unlimited jurisdiction is strictly limited to the fine and does not extend to the constituent elements of the infringement (Galp Energía Espana)

344

Again, this case raises the question of the scope of the Court’s review of the Commission’s competition decisions (in particular, CJEU, 10 July 2014, Telefónica and Telefónica de España v Commission, Case C-295/12 P ; Concurrences No 4-2014, p. 204). In the present case, the Court of First Instance (...)

Alexandre Lacresse Leniency: The Court of Justice of the European Union enshrines the autonomy of applications for immunity leniency before the European Commission and national competition authorities in the absence of harmonization (DHL Express et DHL Global Forwarding)

233

At the heart of this preliminary ruling case was the question of the relationship between the European and national leniency programmes in the light of the instruments adopted within the European Competition Network (ECN). In the present case, the Italian referring court first of all wanted to (...)

Alexandre Lacresse Interim measures: The Court of Justice of the European Union considers the European Commission does not have to keep information as confidential in the only purpose of protecting the undertaking against a follow-on action (AGC Glass Europe)

203

It is to be noted that the Court of Justice ruled that the publication of the Commission’s decision, which penalised the applicants for their participation in a cartel, could not give rise to serious and irreparable damage justifying the suspension of that publication pending the Court of (...)

Alexandre Lacresse Res judicata: The Court of Justice of the European Union the effectiveness of rights conferred by EU law should prevail and calls upon the national judge to question the authority of res judicata of a national judicial decision validating an aid without having assessed its legality (Klausner Holz Niedersachsen)

149

In this case, a German Land had concluded two timber supply contracts with a company. Following an initial series of actions, an appellate court found that the contracts in question remained in force, despite the failure of the company to perform them and despite the Land’s intention to (...)

Alexandre Lacresse Interventions: The Court of Justice of the European Union recognizes a works council the status of interested party for the purpose of submitting to the European Commission observations on social considerations but denies the right to shareholder-employees to intervene in the absence of a sufficiently direct interest in the outcome of the dispute (AEMMELL, Comité d’entreprise SNCM, Cap Actions SNCM)

900

By three orders issued on the same day, the Vice-President of the Court of Justice of the EU ruled on three appeals against decisions of the Court of First Instance rejecting applications to intervene in state aid cases. For the record, pursuant to the second paragraph of Article 40 of the (...)

Alexandre Lacresse Interest in bringing proceedings: The Court of Justice of the European Union considers that the existence of an action for damages pending before a national court gives the competitor of the aid beneficiary an interest in acting but not locus standi against the decision of the European Commission not to recover that aid (Mory, Mory Team and Superga Invest)

175

Between 2001 and 2012, the Commission adopted three decisions on certain aid granted to the Sernam group, operating in the mail sector, until it was taken over by Geodis (La Poste group). The first decision, in 2001, approved restructuring aid. The second decision, in 2004, confirmed the (...)

Alexandre Lacresse ECN : The Advocate General Wathelet suggests that the Court of Justice of the European Union observe the procedural autonomy of Member States and their competition authorities when adopting leniency programmes, subject to the respect of the Charter of Fundamental Rights and the general principles of the European Union (DHL)

170

In his Opinion, Advocate General Wathelet suggests that the Court should reply to the Italian Council of State that the European Competition Network’s (ECN) 2006 Model Leniency Programme has no binding effect on national competition authorities (NCAs). However, when a Member State adopts a (...)

Alexandre Lacresse Leniency and settlement : The European Commission amends its procedural rules and limits access to corporate statements and the use of information obtained pursuant to the procedure in order to preserve the efficiency of the leniency and of settlement procedures

338

Drawing on the lessons of recent judgements involving the production of documents resulting from proceedings for the implementation of a leniency programme in the context of national court proceedings (see Pfleidererjudgements, C-360/09 ; Donau Chemie, C-536/11) or European (see Commission v (...)

Alexandre Lacresse Fine calculation : The Court of Justice of the European Union admits that the calculation of the fine may take into account other sales than those related to the infringement in order not to artificially minimize the economic significance of the infringement implemented by a vertically integrated company (InnoLux)

161

In 2010, the Commission condemned six major international LCD manufacturers for their participation in a cartel between 2001 and 2006. This decision was upheld, for the most part, by the Tribunal in 2014. Although the Court dismissed the action for partial annulment of the decision brought by (...)

Alexandre Lacresse Inspections : The Court of Justice of the European Union reinforces companies’ rights of the defense by obliging the Commission to respect the object of the investigation and only to seize documents linked to the investigation (Deutsche Bahn)

287

In March 2011, suspecting unjustified preferential treatment for the supply of energy granted by an entity of the Deutsche Bahn group to other subsidiaries, the Commission decided to carry out an inspection under Article 20 of Regulation 1/2003. This first inspection enabled the Commission to (...)

Alexandre Lacresse Damage claim : The Court of Justice of the European Union states that a court has jurisdiction over a compensation claim despite a victim’s withdrawal of the action against the sole participant domiciled in the same Member State as the court seised (CDC Hydrogene Peroxide)

300

The applicant in the main proceedings is a company whose object is the recovery, by judicial and extrajudicial means, of compensation claims from undertakings affected by a cartel. In March 2009 it therefore brought an action for damages before a German court against six chemical companies (...)

Alexandre Lacresse Investigation : The European Court of Human Rights requires a practical and effective judicial review on proportionality regarding the seizure of documents unrelated to the investigation or protected by legal professional privilege (Vinci Construction, GTM Génie, Services Civil)

417

ECtHR, 2 April 2015, Vinci Construction and GTM Génie et Services Civil v. France, aff. nos. 63629/10 and 60567/10 In this case, the two applicant companies had been visited and seized by the DGCCRF in 2007. On that occasion, numerous documents and computer files, including the e-mail files of (...)

Alexandre Lacresse Repeated infringement : The Court of Justice of the European Union considers that the mother company of a previously sanctioned company can be in a state of repeated infringement if it wasn’t previously charged with its subsidiary’s conduct (Versalis/Commission)

321

CJEU, 5 March 2015, Commission v Versalis and Versalis v Commission, cases C-93/13 P and C-123/13 P, ECLI:EU:C:2015:150 This decision is also the subject of a commentary in the Agreements Chronicle in this issue, to which reference is made for further development. The question of the (...)

Alexandre Lacresse Inspections : The Advocate General Nils Wahl reveals a violation of rights of defence committed by the Commission during an inspection and suggests to annul partially the General Court’s judgment (Deutsche Bahn)

246

CJEU, 12 Feb. 2015, Conclusions AG N. Wahl, Deutsche Bahn v Commission, Case C-583/13 P, ECLI:EU:C:2015:92 It will be recalled that, in that case, the applicants had been subject to three inspections in the same year and were critical of the Commission’s decisions to carry out a second and then (...)

Alexandre Lacresse Actions for damages : The European Parliament and the Council adopt the directive on rules governing actions for damages under national law for infringements of the competition law provisions

367

Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing damages actions under national law for breach of the rules of competition law of the Member States and of the European Union has been published in the Official Journal of the (...)

Alexandre Lacresse ECHR - Inspections : The European Court of Human Rights rules that an inspection carried out by a competition authority on the premises of an undertaking must be subject to an effective ex post facto review when there was no prior judicial review (Delta Pekárny/Czech Republic)

352

In this case, the Czech Competition Authority had carried out an inspection at the premises of a company in search of evidence of a cartel practice. This inspection had been authorized by the Competition Authority itself and had been carried out by several of its agents in the offices of the (...)

Alexandre Lacresse Effective judicial protection : The Court of Justice of the European Union reminds the clarity and precision requirements that appeals should meet and continue its explanation work on the limits of the General Court’s judicial review of Commission’s decisions (Telefonica)

165

In that case, the Commission had imposed on the applicant a fine more than ten times higher than those imposed four years earlier on similar undertakings for similar abusive conduct and on markets with similar characteristics. The Court of First Instance subsequently upheld that decision (...)

Alexandre Lacresse Inspection : The Court of Justice of the European Union upholds the General Court’s decision partially revoking the Commission’s decision ordering an inspection and confirms it is sufficient for that decision to indicate the subject and the objective of the inspection (Nexans)

192

The question of the review of the legality of the Commission’s inspection decisions is a subject which could become increasingly important, particularly after the recent judgment of the European Court of Human Rights in the case of Delta Pekárny v. the Czech Republic (2October 2014, application (...)

Alexandre Lacresse Umbrella effect: The Court of Justice of the European Union considers that participants in a cartel are also liable for damages linked to the circumstance that a non-participant increased prices because of the existence of the cartel (Kone)

773

The umbrella effect consists, for an undertaking which is not a member of a cartel and which competes with the cartelists, in increasing its own prices in view of the increase in market prices resulting from the existence of the cartel and bringing them to a higher level than would have been (...)

Alexandre Lacresse Rights of the defense: The Court of Justice of the European Union confirms that the group subject to a competition procedure is obliged to preserve the documents necessary for its defense even when it transferred the undertaking involved in the cartel (Bolloré)

152

The question of the preservation over time of the means of proof, and hence of the means of defence, is particularly topical in the present case. It will be recalled that in the ArcelorMittal Luxembourg judgment, the Court of Justice established the principle that undertakings to which an (...)

Alexandre Lacresse Rights of the defense: The Court of Justice of the European Union reminds to the General Court that the respect of the rights of the defense do not tolerate ambiguity (Ballast Nedam / Commission)

115

In 2006, the Commission sanctioned a cartel in the construction sector in the Netherlands (Commission, 13 September 2006, Case COMP/F/38.456 - Bitumen). In the context of this procedure, the Commission notified objections to Ballast Nedam, the head of the Ballast Nedam group, for the actions of (...)

Alexandre Lacresse Access to file: The Court of Justice of the European Union extends its case law relating to access to file to the competition procedures of article 101 TFEU and admits a possible access to the documents obtained by means of a leniency procedure (Commission / EnBW)

202

With regard to access to the file, the Court of Justice has consistently closed the loopholes opened by the case-law of the Court of First Instance. / Technische Glaswerke Ilmenau, C 139/07 P; 28 June 2013, Commission v. Éditions Odile Jacob, C 404/10 P, and Commission v. Agrofert Holding, C (...)

Alexandre Lacresse Admissibility: The Court of Justice of the European Union declares admissible an action for annulment from aid’s beneficiaries against the decision declaring such aid compatible with the common market (Stichting Woonpunt, Stichting Woonlinie)

134

CJEU, 27 February 2014, Stichting Woonpunt and Others v. Commission, Case C-132/12 P CJEU, 27 February 2014, Stichting Woonlinie v. Commission, Case C-133/12 P In the context of State aid litigation, the question of the individualisation of certain economic operators on the grounds that they (...)

Alexandre Lacresse Cooperation of national courts: The Court of Justice of the European Union considers that a national judge who is to rule on state aid recovery is not bound by the Commission’s considerations (Mediaset)

109

In the field of State aid, the Court has clarified the relationship between the Commission’s intervention and that of the national court in the mechanisms for the recovery of unlawfully granted aid. It therefore takes the conventional view that the aid must be recovered simply because the (...)

Alexandre Lacresse Cartels : The Court of Justice of the European Union considers that a failure to adjudicate within a reasonable time without consequences on the General Court’s judgment can only be subjected to a claim for damages (Gascogne Sack Deutschland, Kendrion, Groupe Gascogne)

211

CJEU, 26 November 2013, Kendrion v Commission, Case C-50/12 P CJEU, 26 November 2013, Groupe Gascogne v Commission, Case C-58/12 P These judgments stem from the Commission’s decision to impose fines on several undertakings for their participation or the participation of their subsidiaries in a (...)

Alexandre Lacresse Cartels : The Court of Justice of the European Union re-applies its case law related to the General court’s control of the Commission’s competition decisions (Kone)

132

During the period under review, we will also note this case, the origin of which is to be found in the Commission’s decision to sanction a cartel in the lift and escalator sector, already at issue in a recent judgment of the Court (18 July 2013, Schindler Holding and Others v Commission, Case (...)

Alexandre Lacresse State aids : The Court of Justice of the European Union sets aside the judgment of the General Court and rules that the decision related to a State aid’s compatibility is the measure that ends the investigation procedure (Deutsche Post)

158

Does a second decision to initiate the formal investigation procedure in respect of State aid constitute a challengeable act capable of being the subject of an action for annulment where that decision was preceded by a first opening decision taken in respect of the same aid and where a decision (...)

Alexandre Lacresse State aids : The Court of Justice of the European Union confirms its strict interpretation of the grounds justifying the non-recovery of State aids (Italy, Greece)

163

CJEU, 17.10.2013, Commission v. Italy, Case C 344/12 CJEU, 17.10.2013, Commission v. Greece, Case C-263/12 CJEU, 12.12.2013, Commission v. Italy, Case C-411/12 During the period under review, several formations of the Court of Justice have recalled the conditions under which Member States may (...)

Alexandre Lacresse Setting of fines: The Court of Justice confirms that the European Commission has competence to adopt guidelines to set fines and reminds that the notion of undertaking has its own definition under competition law (Schindler)

163

Intervening on appeal, the Court was called upon in the present case, inter alia, to rule on the European Commission’s power to impose fines and to fix their amount under the competition rules, in particular its power to adopt guidelines on the calculation of fines. The Court was also called (...)

Alexandre Lacresse Complaint: The Court of Justice confirms the rejection by the Commission of a complaint against anti-doping rules established by the anti-doping world Agency (Cañas)

99

This case concerned the rejection for lack of Community interest of a complaint lodged with the Commission by a professional tennis player sanctioned for failure to comply with the rules on doping. The player claimed that WADA and the ATP Tour had infringed the competition rules by adopting and (...)

Alexandre Lacresse Liability exemption: The Court of Justice considers that an undertaking can be punished for having participated to an antitrust practice even if that is the consequence of its error resulting from a legal advice given by a lawyer and gives the right to national competition authorities to grant immunity from a fine when applying UE law on an exceptional basis (Schenker & Co.)

166

The case raised two important issues for companies seeking to avoid liability by shifting the blame for their involvement in an anti-competitive practice to a third party and for NCAs wishing to implement their leniency programme when applying EU law, in particular Article 101 TFEU. The facts (...)

Alexandre Lacresse Inspections: The Court of Justice considers as serious by its own nature the breach of a seal during an inspection and confirms the fine of 38 million euro (E.ON Energie)

184

CJEU, 22 November 2012, E.ON Energy c/ Commission, Case C-89/11 P In May 2006, Commission officials, assisted by officials of the German competition authority (Bundeskartellamt), carried out an inspection at the premises of E.ON in Munich, suspecting its involvement in anti-competitive (...)

Alexandre Lacresse Private enforcement: The Court of Justice recognizes the Commission’s right to claim and obtain damages for its own loss caused by a cartel (Europese Gemeenschap/Otis)

207

CJEU, 6 November 2012, Europese Gemeenschap v Otis and Others, Case C-199/01 Are the European Community, as a legal person, and the European Union which succeeded it (hereinafter the Union) applicants in the field of ’private enforcement’ before the national courts in the same way as the (...)

Alexandre Lacresse Investigations: The Court of Justice confirms the confidential nature of the documents exchanged between the Commission and parties or third parties during competition procedures (Odile Jacob; Agrofert)

272

CJEU, June 28, 2012, Commission v. Odile Jacob, aff. C-404/10 P CJEU, 28.06.12, Commission v. Agrofert Holding, Case C-477/10 P Following the My Travel judgment of 21 July 2011 (Sweden v My Travel and Commission, C-506/08 P), the Court had appeared reluctant to extend its case law on access - (...)

Alexandre Lacresse Intervention – Interest in the result of the case: The Court of Justice considers that the customer of undertakings participating in a cartel has no ground to intervene before the Court (Schenker, Deutsche Lufthansa e.a.)

156

CJEU (Pres. Ord.), 8 June 2012, Schenker v Deutsche Lufthansa and Others, Case C-602/11 P(I). In that case, Schenker had sought to intervene in support of the Commission in the action for annulment brought by several airlines against the decision imposing a fine on them for their participation (...)

Alexandre Lacresse Fines – Bank garantee: The Court of Justice confirms that the application for interim measures must contain precise and full information regarding the situation of the appelant itself and of its shareholders (Fapricela)

167

CJEU (Pres. Order), 20 April 2012, Fapricela v. Commission, Case C-507/11 P(R) In July 2010, the Commission imposed a fine of almost €9 million on Fapricela, penalising its participation in a cartel in the prestressing steel sector. Fapricela then brought an action for annulment before the (...)

Alexandre Lacresse Antitrust proceedings: The European Commission formally adopts administrative guidance documents on antitrust proceedings and reformulates the mandate of the hearing officer

340

Communication from the Commission on good practice in the procedures for applying Articles 101 and 102 TFEU, OJEU No C. 308 of 20 October 2011, p. 6 Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and mandate of Hearing Officer in certain (...)

Alexandre Lacresse Effective judicial remedy: The Court of Justice confirms General Court’s exercise of unlimited jurisdiction over antitrust fines imposed by the Commission (KME Germany/Commission, Chalkor/Commission)

437

(see also, supra, "Agreements" column, obs. C. Sarrazin, article 42258 and section 42260) CJEU, 8 December 2011, KME Germany and Others v Commission, Case C-272/09 P, "Industrial copper tubes and copper plumbing tubes". CJEU, 8 December 2011, KME Germany and Others v Commission, Case C-389/10 (...)

Alexandre Lacresse Rights of the defence: The Court of Justice annuls a General Court’s judgment and declares illegal the Commission’s decisions adopted despite the loss of parts of the file (Solvay)

252

CJEU, 25 October 2011, Solvay v. Commission, Case C-109/10 P, "Soda ash market". CJEU, 25 October 2011, Solvay v. Commission, Case C-110/10 P, "Soda ash market". Without going back over all the background to those disputes, it will be recalled that, in 1990, Solvay was penalised both under (...)

Alexandre Lacresse State aids – Admissibility: The Court of Justice applies its Kronoply-Kronotex case law and confirms that a discrepancy at the level of national law should have led the Commission to initiate the investigation procedure (Autriche/Scheucher Fleisch)

286

CJEU, 27 October 2011, Austria v Scheucher-Fleisch and Others, Case C-47/10 P With this judgment, the Court applies its recent Kronoply and Kronotex case law ((ECJ, 24 May 2011, Commission v. Kronoply and Kronotex, Case C-83/09 P). It thus confirms its approach to the admissibility of actions (...)

Alexandre Lacresse European competition network: The Court of Justice does not give up the criteria of the unity of the legal interest protected for the application of the ne bis in idem principle in competition cases (Toshiba Corporation)

344

CJEU, 14 February 2012, Toshiba Corporation and Others, Case C-17/10 Highly anticipated since the delivery of Advocate General Kokott’s Opinion on 8 September 2011, the Court’s judgment in this case will disappoint those who had hoped for a development in its case-law on the application of the (...)

Alexandre Lacresse Res Judicata: The Court of Justice confirms GC’s decision and denies extension of a judgment that became final to applicants in another case (Total and Elf Aquitaine)

184

CJEU (ord.), 7 February 2012, Total and Elf Aquitaine v Commission, Case C-421/11 P Total and Elf Aquitaine appealed to the Court of Justice against the judgment of the Court of First Instance (7 June 2011, Total and Elf Aquitaine v. Commission, T-206/06, Case T-206/07).), by which the latter (...)

Alexandre Lacresse Appeal by the president of the French NCA: The Court of Cassation extends the rights of the President of the French NCA to bring an appeal against judgments of the Paris Court of appeal, in accordance with the VEBIC case law (SFR and France Télécom, Aximum and Sécurité et signalisation)

286

Cass. com, January 17, 2012, Chairman of the French Competition Authority v. SFR and France Telecom, No. 11-13067 Cass. com, March 20, 2012, President of the Competition Authority c/ Aximum and Security and Signaling, No. 11-16128 While the modernization of competition law and in particular (...)

Alexandre Lacresse State aids: The Court of Justice declares admissible an action against Commission’s decision requiring a Member State to provide information for the examination of a State aid project (Deutsche Post)

391

CJEU, 13 October 2011, Deutsche Post and Germany v. Commision, joined cases C-463/10 P and C-475/10 P Where a Member State intends to grant aid through State resources and notifies the Commission of its intention to do so, it is required to provide all the information necessary to enable the (...)

Alexandre Lacresse Leniency: The Court of Justice refers back to national courts the decision to disclose documents provided to national competition authorities by leniency applicants (Pfleiderer)

831

CJEU, 14 June 2011, Pfleiderer, aff. C-360/09 In a recent judgment of the Grand Chamber, the Court of Justice of the European Union (ECJ) clarifies the guiding principles to be applied by national courts in deciding on a case-by-case basis on the issue of access to documents obtained by (...)

Alexandre Lacresse State Aid: The Court of Justice confirms broad interpretation of “ interested parties ” and eases the admissibility requirements for direct actions against non objection decisions (Kronoply et Kronotex)

510

CJEU, 24 May 2011, Commission v Kronoply and Kronotex, Case C-83/09 P By validating the broad interpretation of the concept of interested parties adopted by the Court of First Instance, the Court of Justice of the European Union confirms the right to appeal against Commission decisions not to (...)

Alexandre Lacresse Temporal application of the law: The Court of Justice confirms the application of article 65(1) of the ECSC Treaty jointly with procedural provisions of Regulation n° 1/2003 and specifies the application of limitation period provisions (Luxembourg, ThyssenKrupp Nirosta)

744

CJEU, 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg, cases C-201/09 P and C-216/09 P. CJEU, 29 March 2011, ThyssenKrupp Nirosta (formerly ThyssenKrupp Stainless) v Commission, case C-352/09 P (See also, supra, "Agreements" column, obs. N. (...)

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