David Henry

McDermott Will & Emery (Brussels)
Lawyer (of Counsel)

David Henry is a practising UK barrister, whose practice focuses on European competition law, including merger control, cartels and abuse of dominance, and the interaction between antitrust and intellectual property. He represents companies and trade associations in the aluminium, air transport, car parts, chemicals, electronics, medical devices, pharmaceuticals, power generation, food retailing and financial services and payment systems sectors. He also advises clients in proceedings before the European courts and national competition authorities. David also has considerable experience in export control matters, dispute resolution and white-collar crime

Distinctions

Linked authors

Czech Ministry of Justice (Prague)
Catholic University of Louvain
Siemens (Munich)
Jones Day (Brussels)
DG COMP (Brussels)
Anheuser-Busch InBev (Leuven)
Paris School of Economics
McDermott Will & Emery (Paris)

Videos

David Henry (McDermott Will & Emery)
David Henry 26 September 2018 Brussels
David Henry (McDermott Will & Emery)
David Henry 24 April 2018 Brussels
David Henry (McDermott Will & Emery)
David Henry 21 February 2018 Brussels

Articles

70112 Bulletin

Sabine Nauges, Daniel von Brevern, Christian Krohs, Andrea L. Hamilton, David Henry, Wilko Van Weert, Laurent Ayache The EU Commission adopts a temporary framework allowing Member States to grant State aid to businesses to help them face the COVID-19 crisis

54

On 19 March 2020, the European Commission adopted a temporary framework that allows Member States to grant certain State aid to businesses to help them face the economic and financial consequences of the Coronavirus (COVID-19) health crisis. In the wake of this decision—and in a record time of (...)

Jacques Buhart, David Henry The EU Commission finds on a prima facie basis, that an undertaking abused its dominant position and orders to cease its prima facie abusive conduct in order to avert the risk of damage to competition (Broadcom)

392

INTERIM MEASURES IMPOSED ON BROADCOM: THE RE-AWAKENING OF A ONCE-DORMANT TOOL?* The European Commission (EC) has found, on a prima facie basis, that Broadcom abused its dominant position. In order to avert the risk of serious and irreparable damage to competition, Broadcom has been ordered to (...)

David Henry Competition law in the railway transport sector: An overview of EU and national case law

952

The rail sector is notorious for its complexity and its endemic competition problems. In a damning account of the state of play in this sector, the European Commission (“EC”) recently lamented the continued absence of effective competition and innovation therein. Furthermore, the risks of unlawful State aid and abusive conduct have been highlighted as serious concerns. According to the EC, therefore, and in a bid to encourage a modal shift towards greater use of the railways, the rail sector will feature highly on its list of enforcement priorities. The unsatisfactory state of affairs in the rail sector does not appear to be limited to Europe, however. Indeed, the contributions made to this work bear this out.

David Henry, Jacques Buhart The EU Commission prohibits a merger in the railway sector and reaffirms that industrial policy objectives have no role to play when it comes to applying the EU merger control rules (Siemens / Alstom)

851

BIGGER IS BETTER . . . OR MAYBE NOT: THE SIEMENS/ALSTOM RAILWAY ME* The European Commission recently reaffirmed that industrial policy objectives have no role to play when it comes to applying the EU merger control rules. Despite unusually intense industrial and political pressure to get the (...)

David Henry, Dr. Boris Uphoff, Jacob Grierson, Jacques Buhart, Nisrin Abelin The EU Court of Justice holds that a jurisdiction clause is not excluded when it does not expressly refer to disputes relating to liability resulting from an abuse of dominant position (Apple / MJA)

117

Application of Jurisdiction Clauses to Competition Damages Actions Depends on Cause of Action* Summary The European Court of Justice (ECJ) recently ruled that a jurisdiction clause does not need to refer expressly to disputes arising from a breach of competition law where damages are claimed (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The US FTC challenges a merger in what it defines as markets for the retail sale of gasoline and the retail sale of diesel, and requires divestitures in 10 local geographic markets (Alimentation Couche-Tard / Holiday)

35

THE LATEST: FTC CHALLENGES RETAIL FUEL STATION AND CONVENIENCE STORE TRANSACTION— REQUIRES TEN LOCALIZED DIVESTITURES IN WISCONSIN AND MINNESOTA* WHAT HAPPENED: Alimentation Couche-Tard Inc. (ACT) and its subsidiaries (including Circle K Stores, Inc.) are engaged in the retail sale of gasoline (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The US District Court for the Southern District of Texas files an information due to conspiracy to fix the prices in the silicone wristbands and lanyards sector (Zaappaaz)

24

Azim Makanojiya founded Zaappaaz Inc. as a nineteen-year-old university student and quickly turned it into a multi-million dollar business. WHAT HAPPENED: On Tuesday, August 7, online retailer Zaappaaz Inc. and its twenty-nine-year-old president and founder, Azim Makanojiya, agreed to plead (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The US Court of Appeals for the Ninth Circuit affirms the dismissal of an antitrust counterclaim in a labor dispute (ICTSI / ILWU)

16

On July 24, 2017, the US Court of Appeals for the Ninth Circuit affirmed the dismissal of an antitrust counterclaim brought by ICTSI Oregon, Inc. (ICTSI), the operator of a marine shipping facility, against the International Longshore and Warehouse Union (ILWU) and the Pacific Maritime (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The US Court of Appeal for the Second Circuit dismisses the indictments of two individuals accused of playing a role in the LIBOR case and clarifies the Fifth Amendment law in international cartels (Allen)

23

SECOND CIRCUIT CLARIFIES FIFTH AMENDMENT LAW, WITH IMPLICATIONS FOR US PROSECUTION OF INTERNATIONAL CARTELS* On July 19, 2017, the Second Circuit vacated the convictions and dismissed the indictments of two individuals accused of playing a role in the manipulation of the London Interbank (...)

Andrea L. Hamilton, David Henry The EU Commission fines a big tech company for providing incorrect or misleading information during the merger control review process (Facebook / Whatsapp)

37

THE LATEST: EU Commission Fines Facebook EUR 110 million for Providing Incorrect or Misleading Information* The Commission’s EUR 110 million fine on Facebook for breach of its procedural obligations under the EU merger control rules underscores the need to submit full, accurate and reliable (...)

Wilko Van Weert, David Henry The EU Court of Justice rules on the seeking of injunctions in the context of standard-essential patents encumbered by FRAND in the technology sector (Huawei / ZTE)

29

THE EUROPEAN UNION’S HIGHEST COURT RULES ON STANDARD-ESSENTIAL PATENTS INJUNCTIONS AND ABUSE OF DOMINANCE* The long-awaited ruling on the seeking of injunctions in the context of standard-essential patents encumbered by fair, reasonable, and non-discriminatory (FRAND) terms has been delivered (...)

Philip Bentley, David Henry The EU Court of Justice confirms the existence of a new concept which can be used by the Commission to calculate fines of an amount higher than a restrictive reading of its Fining Guidelines (InnoLux)

46

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 Economic (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The US District Court for the Northern District of Ohio approves a plea agreement from a sales manager that conspired to fix prices of automotive hoses (Horie of Toyoda Gosei)

19

FORMER TOYODA GOSEI EXECUTIVE PLEADS GUILTY TO PRICE-FIXING, BID-RIGGING* On January 6, 2015, Makoto Horie of Toyoda Gosei North America pled guilty to the United States Department of Justice (DOJ) for conspiring to fix the prices of automotive hoses sold to U.S. companies. Mr. Horie was (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The US Northern District of California allows a claim brought against a franchise car dealer for engaging into anticompetitive price discrimination by offering volume discounts (Chrysler Group / Matthew Enterprise)

27

DISTRICT COURT PARES DOWN PRICE DISCRIMINATION SUIT AGAINST CHRYSLER* On July 11, 2014, the Northern District of California dismissed one of two federal antitrust claims brought against Chrysler Group LLC under the Robinson-Patman Act, 15 U.S. C. § 13, as well as several state statutory and (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The US Court of the Northern District of California rules against an acquisition of a competitor on the basis that it would lead to anticompetitive effects in the high-tech market (Bazaarvoice / PowerReviews)

35

JUDGE RULES IN FAVOR OF DOJ FINDING BAZAARVOICE/POWERREVIEWS MERGER ANTICOMPETITIVE* On January 8, 2014, Judge Orrick of the Northern District of California ruled that Bazaarvoice’s acquisition of competitor PowerReviews violated Section 7 of the Clayton Act. The ruling was in favor of the (...)

David Henry, Andrea L. Hamilton, Jacques Buhart The UK Government publishes a consultation document on how best to encourage private sector challenges to anticompetitive behaviour

1257

PRIVATE ACTIONS IN COMPETITION LAW: UK GOVERNMENT CONSULTATION* On April 24, 2012, the UK government took a significant step towards private antitrust actions by publishing a consultation document on how best to encourage private sector challenges to anticompetitive behavior. This consultation (...)

Gregory E. Heltzer, Andrea L. Hamilton, Christian Krohs, Daniel Powers, David Henry The Brazil’s House of Representatives publish a bill reforming competition law with important implications for merger control

13

COMPETITION LAW REFORM IN BRAZIL: IMPLICATIONS FOR MERGER CONTROL* Brazil’s House of Representatives passed a long-awaited competition bill (the Competition Bill) on 5 October 2011, making significant changes to Brazilian competition law. The Competition Bill has yet to be signed into law by (...)

David Henry, Martina Maier, Philipp Werner The EU Court of Justice clarifies the scope of the law in relation to pricing practices of vertically integrated companies in the telecommunications sector (TeliaSonera)

503

This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 17 February 2011, the European Court of Justice (ECJ) – on a reference for a preliminary ruling by the Stockholm District Court (SDC) – clarified, (...)

David Henry The UK Court of Appeal holds that compensatory damages are adequate and that a restitutionary reward is not available in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)

3156

Introduction In view of the fact that Community law regulates competition, English law is required to provide remedies for violations to persons injured thereby. Indeed, as the European Court of Justice stated in Courage v. Crehan, "the full effectiveness of Article 81 of the Treaty and, in (...)

David Henry The Danish Competition Authority launches an inquiry on possible anti-competitive effects of the exclusive right conferred for port harbour services (Copenhagen Malmö Port’s)

4376

Against the backdrop of a string of analyses of the abovementioned Act, the Danish competition authority carried out an examination of the competitive effects of Copenhagen Malmö Port’s exclusive right to offer harbour services in Copenhagen Free Port. The Danish competition authority at the same (...)

David Henry The Danish Competition Council held that a professional association had abused its dominant position under both Art. 82 EC and national competition provisions (Rørforeningen)

4245

Danish Competition Authority, 27 april 2005, Rørforeningen Rorforeningen is an association of Danish wholesalers of plumbing and heating products. All the major wholesalers in Denmark are represented through Rorforeningen. The association carries out a range of activities but the one in casu to (...)

David Henry, Robert Pelikán The Hungarian Competition Authority fines T-Mobile for having misinformed consumers to the detriment of competitors on the basis of national competition provisions (T-Mobile)

4348

The Hungarian Competition Council initiated proceedings against T-Mobile in order to find out whether it had violated Article 8 paragraphs 1 and 2 of the Hungarian Competition Act and Article 7 paragraphs (2) (b) of the Hungarian Act on Business Advertising Activity, through advertising the (...)

David Henry The Cypriot national competition authority imposes a fine for an abuse of dominant position to an association of agricultural producers (Yeomilo Trading/Cyprus Potatoes Trades Association)

4219

On 16 December 2004, the Cypriot Commission for the Protection of Competition, following a complaint by Yeomilo Trading Ltd, issued a decision that the Cyprus Potatoes Trades Association had infringed section 6 of the Protection of Competition Law 207/89 through abusing its dominant position in (...)

David Henry The Hungarian Competition Council decides that the national newspapers wholesaler is not in a dominant position and rejects the retailers’ complaint despite threat of terminating business relations (Magyar Lapterjesztõ Rt)

2634

Gazdasági Versenyhivatal, Buvihír Hírlap Kereskedelmi Rt. (Magyar Lapterjesztõ Rt), Vj-45/2004/46, 9 November 2004 In Hungary, Magyar Lapterjesztõ Rt is the owner of all the wholesalers of daily, weekly, monthly and other papers. Magyar Lapterjesztõ Rt divided Hungary up geographically into ten (...)

Cédric Cheneviere, David Henry L’autorité de concurrence finlandaise condamne l’Ordre des architectes pour avoir édicté un règlement professionnel restrictif de concurrence (Finnish Association of Architects, SAFA)

3158

Fin 2004, l’autorité de concurrence finlandaise a condamné, sur le fondement de l’article 4 de la loi relative au droit de la concurrence, l’Ordre des architectes (“SAFA”) pour avoir édicté un règlement professionnel restrictif de concurrence. Selon ce règlement, si un maître d’ouvrage désirait faire (...)

Cédric Cheneviere, David Henry The Danish national postal operator finds guilty of abuse of dominant position on the market for the distribution of non-addressed items and local weekly papers (Post Danmark / Forbruger-Kontakt)

4463

On 29 September 2004, the Danish Competition Council adopted a decision whereby Post Danmark A/S, the Danish national postal operator, was found to have abused its dominant position on the market for the distribution of non-addressed items and local weekly papers. The decision stemmed from a (...)

David Henry The Hungarian Competition Authority condemns price concertation, market allocation and bid rigging between undertakings bidding for the construction of a motorway (Betonút, Debmut, Egut, Hidépitõ, Strabag)

2966

In the summer of 2002, construction works for a motorway in Hungary were put out to tender by the National Motorway Co. Ltd. The tendering process was made up of two distinct procedures as the first procedure (restricted procedure with invitations) was declared ineffective. The subsequent (...)

Cédric Cheneviere, David Henry The Danish Competition Authority censors as abuse of a dominant position the failure of a publisher to comply with the national rules establishing a fixed price (Gyldendalske Boghandel)

3362

Le droit danois de la concurrence permet à un éditeur de déterminer un prix de vente fixe pour ses nouvelles parutions, prix qui doit être respecté par tous les vendeurs (librairies, supermarchés, marchands spécialisés, etc...). Le législateur danois entendait créer par cette loi une exception (...)

David Henry The Danish competition authority finds a mobile telephone company in violation of the Danish Competition law for operating a margin squeeze and an illegal bonus system (Song Networks / TDC-SONOFON)

8601

A Danish provider of fixed line telephony for business customers, Song Networks A/S, complained to the Danish Competition Authority alleging that TDC and SONOFON had engaged in illegal behaviour by: charging excessive prices for mobile termination, engaging in collusive behaviour in connection (...)

Cédric Cheneviere, David Henry Le Conseil de la concurrence hongrois sanctionne une entente à l’occasion d’un appel d’offres public à hauteur de 600 000 € (Baucont/Kész et Középületépít)

3223

Dans sa décision du 18 mars 2004, le Conseil de la concurrence sanctionne - sévèrement ? - une entente entre entreprises du bâtiment à l’occasion d’un marché public pour l’Université de Kaposvár. En 2001, l’Etat hongrois avait lancé un appel d’offres dans le cadre d’un marché public pour la construction (...)

10238 Review

Frédéric Jenny, Christian Ahlborn, Jeremy Bacharach, Christoph Barth, Christian Bovet, Marcel Boyer, Jacques Buhart, Maria Pilar Canedo Arrillaga, Michèle Carpagnano, Daniel Crane, Aymeric de Moncuit, Valentine Delaloye, Jacques Derenne, David-Julien Dos Santos, David Gabathuler, Mark Griffiths, Leigh Hancher, David Henry, Pierre Horna, David Kupka, Siún O’Keeffe, Christian Ritz, Giulio Cesare Rizza, Matthias Schlau, Mario Siragusa, Anastasia Usova, Faustine Viala, Masako Wakui Competition law and health crisis

4199

The unexpected shock provoked by the Covid-19 crisis and the measures taken to limit the spread of the pandemic have affected the functioning of many markets. Throughout the world, competition authorities which, in the last decade, had been enforcing their laws in the context of steady economic (...)

Frédéric Jenny, Damien Neven, Jacques Buhart, David Henry, Thomas Funke, Mathew Heim, Catarina Midões, Nicholas Levy, David R. Little, Henry Mostyn, Ioannis Lianos, Massimo Motta, Martin Peitz, Cristoforo Osti, Almos Papp, Christian Wik, Kristian Hugmark, Julia Vahvaselkä, Antoine Winckler, Thierry Boillot Which competition and industrial policies for the new EU Commission after Siemens/Alstom?

5232

This series of articles presents different points of view about the priorities of the newly established Commission on competition policy in Europe in the aftermath of the decision prohibiting the Siemens/Alstom merger and of the manifesto published by French and German governments. These (...)

Send a message