Alexandre Lacresse

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 (...)

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 (...)

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, (...)

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 (...)

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 (...)

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 (...)

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 (...)

Digitisation does not only affect companies. On 19 March 2019, the Commission announced a new secure online tool called eLeniency, which is supposed to guarantee both confidentiality and legal protection, similar to the current oral procedure. Be careful not to mislead, the tool is used in (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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. (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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. (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

In the contested decision, the Competition Authority ordered thirteen undertakings to pay a penalty of EUR 951 million for two cartels, one on the cleaning products market and the other on the hygiene products market. At the procedural level, firstly, the Authority was criticised for failing (...)

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 (...)

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 (...)

By definition, to be a third party is "not to be", or more precisely, to not be a party. However, in proceedings before the French Competition Authority, a third party is not an "invisible man" and has his own special role or part to play. The aim of this article is to review the rights of (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

The Commission has opened a consultation to gather information on the ability of National Competition Authorities (NCAs), "key partners", to enforce EU competition rules. Recalling that since 2004 NCAs have been empowered by Regulation 1/2003 to enforce the competition rules and that they (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

The Court of Justice of the European Union has recently published new Additional Rules of Procedure to take account of the completely recast Rules of Procedure of 25 September 2012. This new Additional Rules replaces the Additional Rules which, although amended on numerous occasions, date from (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

Actions for damages brought by natural or legal persons who are victims of a cartel ("private enforcement") is often a path fraught with pitfalls. If the existence of fault on the part of the perpetrators of the practice is established by the sole decision of the competition authority (...)

CJEU, 14 March 2013, Viega v Commission, Case C 276/11 P In 2006, the German company Viega was one of some 30 companies fined by the Commission for its participation in the "copper fittings" cartel and was fined more than EUR 54 million (20 September 2006, Dec. C(2006) 4180, Case (...)

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 (...)

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 (...)

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 - (...)

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 (...)

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 (...)

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 (...)

(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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

CJEU, 21 July 2011, Sweden v MyTravel and Commission, case C-506/08 P The first case of annulment of a Commission decision declaring a merger incompatible with the common market, the merger between the British tour operators Airtours and First Choice, which was rejected in 1999, has undergone (...)

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 (...)

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 (...)

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. (...)