Michel Debroux

DS Avocats (Paris), DS Avocats (Brussels)
Lawyer (Partner)

Michel Debroux is partner at DS Avocats Paris and Brussels. His practice, which spans over 25 years, consists of French and EU competition law with particular focus on deregulated industries such as telecommunications and energy. He advises clients on merger review, state aid, competition litigation and compliance. Representative experience of Michel includes the successful representation of a large French energy company in challenging before the European Courts an EU Commission decision in the area of state aid imposing the reimbursement of over EUR 1 billion. He has also acted for a large French chemical company in EU-wide cartel cases. He has assisted French, UK, German and U.S. companies in obtaining merger clearance in complex joint venture and merger cases from either the French antitrust authorities or the EU Commission, in the following industries; energy, media, retail distribution, aerospace, agriculture, telecommunications, food and drink. In addition, he has been involved in several antitrust litigation cases, before both French and EC competition authorities and courts. Michel has been a regular contributor to Concurrences Review since 2004. He is also Director of studies at the Ecole de Droit & Management of Paris II.

Linked authors

General Court of the European Union (Luxembourg)
Bird & Bird (Paris)
Paul Hastings (Brussels)
Paris School of Economics
Sheppard Mullin (San Francisco)
Paul Hastings (Washington)
EDHEC Business School
Vogel & Vogel (Paris)

Articles

35275 Bulletin

Michel Debroux State aid & COVID-19: A swift response to a massive challenge

1360

Faster than during the 2008-2009 crisis, and almost as quick as the spreading of the Covid-19 virus … that’s how the EU’s response to the current pandemic crisis can be characterized. In exceptional circumstances such as the 2008-2009 financial crisis or during the 2010 Icelandic ash aviation lockdown, EU State aid law allows for flexible derogations to its standard approach to State aid control, and fast-track actions.

Michel Debroux The Paris Court of appeal upholds France’s highest antitrust fine and confirms a strict approach towards an exchange of information between competitors in oligopoly markets (Bouygues Télécom / SFR / Orange France)

7862

On November 25, 2005, the French competition council imposed a combined fine of EUR 534 million on France’s three mobile operators, i. e. the highest fine ever in France and one of the highest in Europe. The decision was based on two main objections, namely a practice of exchange of information (...)

Michel Debroux The Paris Court of First Instance rules on the anticompetitive effect of a patent infringement collective complaint lodged against a search engine’s adwords system (Gifam / Google)

4587

AdWords is Google’s flagship advertising product, and its main source of revenue. It offers pay-per-click advertising, and site-targeted advertising for both text and banner ads. But many of the words sold by Google to its clients are registered trademarks and Google has been recently facing (...)

Michel Debroux A French commercial court dismisses a private action claiming compensation for damages caused by antitrust violation, on the basis of a broad interpretation of the passing on defence (Vitamins cartel)

3968

Nanterre Commercial Court (Tribunal de commerce de Nanterre), 11 May 2006, Arkopharma v. Roche and Hoffmann La Roche, n° RG 2004F02643 As compared to the situation in the US, it is well known that private actions are still highly infrequent in Europe generally and in France more specifically. (...)

Michel Debroux The French Supreme Court alleviates the standard of proof of actual or potential effects of an abusive price squeeze in the telecommunications sector (ETNA / France Telecom)

8171

This interesting case raises the question of the standard of proof that the French competition council must comply with, in showing the actual or potential effects of an abuse of dominant position. FACTS In June 1999, a French association of new entrant telecommunications operators complained (...)

Michel Debroux The French Court of First Instance in Pairs is ready to welcome the defendant’s counter-claim that the plaintiff abused its alleged dominant position through aggressive and spurious patenting policy on the basis of Art. 82 EC (LuK Lamellen / Valeo)

4025

In most patent litigation cases, the defendant’s standard defence consists in challenging the validity of the plaintiff’s patents, whose infringement is claimed. In this case, the defendant’s counter-claim was also based on a far less usual weapon, i.e. the plaintiff’s alleged abuse of dominant (...)

384583 Review

Michel Debroux Vertical agreement: The French Competition Authority rejects, for lack of conclusive evidence, the complaint of an online distribution platform of content against several French TV channels (Molotov)

48

Molotov operates a platform for the distribution of online TV channels and services in OTT ( "over the top"), which allows the marketing of offers of access to audiovisual content online, without the intermediary of Internet Service Providers ("ISPs"). It markets its offer according to a model (...)

Michel Debroux COVID-19: The French Competition Authority closes in one week an investigation on exclusive imports of medical supplies in French Guyana and Antilles (Fisher & Paykel Healthcare)

53

The Covid-19 health crisis has led the Authority to pay particular attention to the distribution of medical equipment, to act within a very short period of time when it considered it useful, and to make this widely known for a clear educational purpose. There are two illustrations in this (...)

Michel Debroux Restriction of competition by object: The Court of Justice of the European Union once again attempts to clarify the concept of restriction of competition “by object” (and does not fully succeed) and to provide a pragmatic methodology to identify such restrictions (and does not fully fail) (Gazdasági Versenyhivatal / Budapest Bank Nyrt)

107

Does the clarity of a notion arise from the abundance of attempts to explain it? If this were the case, the concept of restriction of competition by object would be clear today, between the Groupement des cartes bancaires judgment of 2014 (CJEU, 11 Sept. 2014, Case C-67-13 P, ConcurrencesNo. (...)

Michel Debroux Resale price maintenance: The French Competition Authority imposes a heavy fine to one of the GAFAM (tip: it’s about a fruit) and two of its distributors for the implementation of significant vertical restraints (Apple, Tech Data, Ingram)

117

In anticipation of its future publication, let us quickly mention the decision of March 16, 2020 by which the Competition Authority heavily sanctioned Apple and two of its wholesalers, Tech Data and Ingram, for cartel practices within the distribution network of Apple’s products, as well as an (...)

Michel Debroux Restriction by object: The Court of Justice of the European Union clarifies the conditions for a pay-for-delay agreement to be qualified as a restriction of competition by object following a preliminary ruling request of the Competition Appeal Tribunal (Generics - UK, GlaxoSmithKline, Xellia Pharmaceuticals...)

174

The much-awaited judgment of the Fourth Chamber of the Court of Justice of 30 January in response to the questions referred by the Competition Appeal Tribunal [CAT] is already seen, together with thejudgment of 2 April 2020 in Case C-228/18 (Budapest Bank), as bringing, in a very timely (...)

Michel Debroux Vertical restraints: The European Commission imposes a 14.3 million euro fine to a US studio, for restrictions to cross-border trade of marketing products (NBCUniversal)

97

And three... after Nike in March 2019 (cf. this Chronicle, n° 3-2019, p. 80, note M.D.) and Sanrio in July 2019 (cf. this Chronicle, no. 4-2019, p. 90, note E.T.).), it is now NBCUniversal which was sanctioned on 30 January 2020, following the in-depth investigation initiated by the European (...)

Michel Debroux Fines: The French Competition Authority imposes a heavy fine to four operators of meal vouchers for various practices resulting in market foreclosure and delays to innovating applications (Edenred France, Up, Natixis Intertitres, Sodexo Pass France)

67

On December 17, 2019, the French Competition Authority imposed on the four historical issuers of restaurant securities and their joint body, the Centrale de Règlement des Titres (CRT), the largest sanction of the year, i.e. nearly 415 million euros. 415 million. To date, this is the fourth (...)

Michel Debroux Burden of proof: The Court of Justice of the European Union rejects several appeals brought against the European Commission’s decision in the electric cable cartel, but partially annuls one judgment of the General Court of the European Union for reversing the burden of proof (Silec Cable ; Brugg Kabel...)

240

The importance of legal presumptions in economic law and particularly in competition law is well known (see the OECD report, "Protection regimes and legal presumptions in competition law", 2017 or M. Van der Woude, "Judicial Control in Complex Economic Matters", JECLP 2019, vol. 10, n° 17). We (...)

Michel Debroux Settlement: The French Competition Authority fines a group of road transport undertakings for non-compete practices between its members, and specifies the conditions for obtaining a settlement (Astre)

118

Do we have to call him again? A grouping of undertakings may not impose a non-compete obligation between its members restricting their freedom to prospect for customers among themselves or to respond to invitations to tender. Such practices had been implemented within the Astre group, the (...)

Michel Debroux Fine: The Paris Court of Appeal confirms most of the decision whereby the French Competition Authority sanctioned restrictions on online sales of chainsaws and brushcutters, while adopting a somewhat ambiguous positions on the principle of legitimate confidence (Stihl)

94

It is difficult to clear up the long ruling handed down on 17 October 2019 by the Paris Court of Appeal (also commented on in the ’Proceedings’ column, below), which is the culmination of a case that saw the condemnation of the restrictions imposed on the online sale of Stihl chainsaws and other (...)

Michel Debroux Object restriction: Advocate General Bobek proposes to the Court of Justice of the European Union, following a request for a preliminary ruling submitted by the Hungarian Supreme Court, an analytical method aiming at drawing the line between a restriction of competition by ‘object’ or by ‘effect’ (Gazdasági Versenyhivatal / Budapest Bank)

278

Loyal readers of this column are well aware of the debates on the distinction between restrictions of competition by object and by effect. One keeps in mind, of course, the Groupement CB judgments (CJEU, 11 September 2014, C-67/13 P; Concurrences4-2014, note M. B.-T., pp. 110-118) and Maxima (...)

Michel Debroux Judicial activity: The Court of Justice of the European Union publishes its 2018 Annual Report witnessing a strong judicial activity and offering valuable source of information for European legal practitioners (2018 Annual report)

141

The Court of Justice has published its Annual Report for the year 2018, which since 2015 has taken the form of three documents : Activity Report, Panorama of the Year and Management Report. These documents all share the same cover photograph, which highlights the towers which house the Court’s (...)

Michel Debroux Exchange of information: The General Court of the European Union fully upholds the decision of the European Commission relating to a cartel on the market of optical disks readers (Sony, Quanta, Hitachi-LG, Toshiba Samsung)

223

On 12 July, the Court of First Instance confirmed the €116 million sanction imposed by the European Commission in October 2015 on eight suppliers of optical disc drives (LDOs), including Sony, Philips and Toshiba, who had exchanged information as part of a strategy of coordinated responses to (...)

Michel Debroux Object restriction: The French Competition Authority fines a practice aiming at restricting online distribution of high-end cycles and points out that this is an object restriction (Trek)

121

Let us quickly mention this decision by which, after a very (too?) long investigation, the Authority moderately sanctions a practice by which a manufacturer of top-of-the-range bicycles strongly reduced the freedom of its distributors to sell its products on the Internet. As the investigation (...)

Michel Debroux EIG: The French Competition Authority heavy fines an economic interest grouping of cab for anticompetitive practices implemented to prevent one of its members to develop complementary activities (Radio-taxi Antibes Juan-les-Pins)

224

It is rare for the Competition Authority to adopt a decision that appears, at first sight, to benefit only an extremely small number of economic actors, namely, in this case, only one. This is one of the peculiarities of this case, which also benefits from the honour of a press release (28 (...)

Michel Debroux Report: The Commission publishes a report on the application of competition law in the pharmaceutical sector and recommends to implement a cooperation between national competition authorities in order to deliver more affordable medicines and promote innovation (Pharmaceutical)

226

On 28 January 2019, the European Commission published its report on the application of competition law in the pharmaceutical sector, in which it calls for better collaboration between European competition authorities to promote access to affordable and innovative medicines. As luck would have (...)

Michel Debroux Sanction: The European Commission imposes a fine of EUR 570 Million to the second largest card scheme for obstructing merchants’ access to cross-border card payment services (Mastercard)

224

With this decision, the Commission is returning to practices that have now been abolished. Until December 2015, MasterCard charged varying interchange fees in different countries, forcing "acquiring" banks (the bank of the retailer from which a cardholder makes a purchase) to pay the fees (...)

Michel Debroux Objective infringement: The Paris Court of Appeal rejects the appeal brought against the decision of the French Competition Authority which sanctioned practices of "covering quotations" (Sécurité Vol Feu)

138

In issue No. 2-2018 of this Review, we commented on the decision adopted on 13 March 2018 by the Authoritywhich had sanctioned practices that were, after all, quite commonplace, such as the presentation of cover estimates in the context of calls for tenders. In this case, the bids were for (...)

Michel Debroux Commitments: The General Court of the European Union dismisses the appeal brought by a broadcaster against a decision that rendered mandatory the commitments proposed by a right holder, and tries to strike a difficult balance between the commitment procedure and the contractual rights of third parties affected by such commitments (Canal+)

307

What are the nature and scope of the effects of a Commission decision making commitments entered into by an undertaking pursuant to Article 9 of Regulation 1/2003 binding on third parties who are contractual partners of that undertaking but who are not covered by the Commission decision? It is (...)

Michel Debroux “Pay-for-delay”: The General Court of the European Union essentially upholds eight decisions of the European Commission totalling almost 900 pages sanctioning “pay-for-delay” settlements entered into between a princeps pharmaceutical company and generic manufacturers, but reduces the fine in one case and partially annuls two decisions (Biogaran ; Teva UK ; Lupin ; Mylan ; Krka. ; Servier ; Niche ; Unichem)

286

Two years after his "Lundbeck" (Trib. EU 8 Sept. 2016, T-472/13, see "The Lundbeck case and the concept of potential competition", ConcurrencesNo. 2-2017, pp. 24-50.), the Court of First Instance once again addressed, in eight judgments totalling almost 900 pages, the complex question of the (...)

Michel Debroux Cartel: The French Competition Authority rejects, for lack of supporting evidence, a complaint brought by a franchisee against a franchisor for alleged anticompetitive agreement and abuse of economic dependence in the sale of the franchise network (Take-away and home delivery pizzas)

142

The Competition Authority’s constant efforts to popularise its action and infuse a better competition culture within French companies can sometimes have astonishing consequences, the most important of which are quite fanciful referrals. Such seems to be the case in this case, where the (...)

Michel Debroux Transaction: The French Competition Authority fines various anticompetitive practices (non-aggression pact, distribution costs agreement) carried out by several companies and their professional federation (Distribution of veterinary medicinal products)

170

Following an investigation and seizure operations carried out by the DIRECCTE of Aquitaine, the Authority sanctioned on 26 July three anti-competitive practices in the veterinary medicine distribution sector, consisting partly of two bilateral customer allocation agreements between the three (...)

Michel Debroux Food retail industry: The French Competition Authority opens in-depth investigations on effects produced by joint purchasing agreement projects in the food retail industry, in application of the Macron Law (Food retail industry)

208

We know to what extent the purchasing power of mass distribution is regularly put in the dock, particularly in recent months in the context of the bill on trade relations in the agricultural and food sector. In this context, the Authority is determined to make its voice heard, as it did in its (...)

Michel Debroux Evidence: The General Court of the European Union carries out a reassessment of the evidence and fully upholds the European Commission decision in the cartel of bathroom fittings and fixtures in a judgment upon referral from the Court of Justice of the European Union following a previous ruling that partially set aside a decision of the European Commission (Keramag Keramische Werke, Sanitec Europe)

777

On 3 July 2018, the Court of First Instance delivered two judgments on referral, following the annulment of its first judgment in this case (Case T-379/10 and T-381/10) on 16 September 2013 by the Court’s judgment of 26 January 2017 (Case C-613/13 P, see this Chronicle, Concurrences No. 2-2017, (...)

Michel Debroux Professional union: The French Competition Authority imposes fines on a professional union of wine producers which promoted price recommendations even though it did not qualify as a producer organisation (PO) or as an association of producer organisations (APO) (Rhône Valley wines)

579

The application of competition law to the agricultural sector is the focus of this issue, and this decision provides a further illustration of this. The Authority has just sanctioned a practice of drawing up and disseminating price instructions implemented by a trade union, and takes this (...)

Michel Debroux Refusal to settle: The French Competition Authority sanctions practices of « covering quotations » following a refusal to settle (Securing tobacco retail shops in the French department of Isère)

142

Another decision adopted by the Authority following a transaction refusal proposed by the DGCCRF and, as in the case of Decision No. 18-D-02 commented on aboveThis is yet another sanction imposed on the company that refused the transaction. A survey carried out by the DGCCRF in 2013 led to the (...)

Michel Debroux Imports exclusive rights: The French Competition Authority again quashes again agreements containing exclusive imports and distribution rights in overseas territories and clarifies the scope of the Lurel Act (Distribution of termites traps in La Réunion, the Antilles and Guyana)

285

The Competition Authority is once again sanctioning exclusive import and distribution agreements in the overseas collectivities, on the basis of the "Lurel" Act (Act No. 2012-1270 of November 20, 2012), and specifies the scope of application of this Act. After the distribution of consumer (...)

Michel Debroux Tender offer: The French Competition Authority fines companies belonging to the same group, for having consulted between themselves prior to submitting distinct proposals in response to a tender offer (Maintenance of natural spaces in Martinique)

290

Does refusing a transaction proposed by the DGCCRF have any interest? Between 2010 and 2014, the question remained open, in the absence of such refusals in the first 25 cases handled by the DGCCRF during this period (André Marie, Les pratiques anticoncurrentielles de dimension locale, JCl. (...)

Michel Debroux Service of quotation: The Paris Court of Appeal confirms that a quotation assessment service proposed by a network of health services provider, enabling subscribers to compare quotations proposed by non-members of the network, does not constitute an anticompetitive agreement, nor an anticompetitive diversion of customers (C. N. S. D.)

108

A service for analyzing quotes offered by a health care network to its insureds in order to compare the prices offered to the latter by practitioners not affiliated with the network does not constitute either an agreement or a diversion of clientele. This is the conclusion just reached by the (...)

Michel Debroux Lack of competence: The French Competition Authority considers itself incompetent in respect of some allegations, and rejects other allegations relating to the complaint of a newspaper depositary against the two main newspaper distributors (Newspaper distribution sector)

98

The Competition Authority declares itself incompetent to deal with anti-competitive practices complained of by Tarbes Diffusion Presse (TDP), a press agent, against Presstalis and Messageries Lyonnaises de Presse (MLP). In addition to allegations of abuse of a dominant position against (...)

Michel Debroux Selective distribution: The Court of justice allows a supplier of luxury goods, in the context of a selective distribution system, to limit the ability of its distributors to sell the contractual products on third-party internet platforms, such as Amazon (Coty c/ Parfümerie Akzente)

327

Judging by the avalanche of comments devoted to it as soon as it was published, it’s an understatement to say that the Coty decision was expected! A reading of the conclusions of Advocate General Wahl of 26 July 2017 suggested that, if they were followed, they would confirm a development in the (...)

Michel Debroux Settlement: The European Commission fines five car safety equipment suppliers for taking part in one or more of four cartels implemented outside the European Union but which may have had a significant effect on European customers (Car safety equipments)

128

A seemingly exclusively Japanese cartel may be sanctioned by the European Competition Authority, the European Commission has just reminded in its decision of 22 November 2017. Five Japanese airbag and seat belt manufacturers had agreed to coordinate prices and markets to the detriment of the (...)

Michel Debroux Parent company liability: In the pre-stressing steel cartel saga, the Court dismisses the appeal brought by four Spanish companies who challenged the liability of the mother company for the anticompetitive practices of its subsidiaries, as well as their ability to pay (Global Steel Wire)

345

On 26 October 2017, the European Court of Justice handed down two judgments dismissing the appeals brought by four Spanish companies belonging to the Celsa steel group in the case of the cartel on the European market for prestressing steel, which has already been extensively commented on in (...)

Michel Debroux Exclusive maintenance agreements: The Tribunal confirms a Commission decision rejecting a complaint against practices implemented by manufacturers of luxury watches, relating to the supply of spare parts to third-party maintenance operators (CEAHR)

153

Decisions to dismiss complaints are often succinct and do not always generate interest. This is not the case for the judgment handed down on 23 October 2017 by the Court of the Union rejecting the appeal lodged by the European Confederation of Watchmakers’ Associations (CEAHR) against a decision (...)

Michel Debroux Compliance programmes: The French competition authority imposes heavy fines on three companies involved in a long-standing cartel in the floor covering sector, and signals a tougher approach towards compliance programmes (Floor covering sector)

266

The decision adopted on 18 October 2017 by the Competition Authority is both fairly standard, since it concerns a cartel whose characteristics would make it a textbook case, and peculiar for several reasons. First of all, the amount of the penalties imposed is impressive, since with EUR 302 (...)

Michel Debroux Decision not to settle: The European Commission imposes a heavy fine on the sole undertaking that decided not to settle in the trucks cartel, in which the other five companies involved were already sanctioned (Scania)

163

And six! On 19 July 2016, the Commission imposed a record fine of €2.926 billion on five truck manufacturers (MAN, DAF, Daimler, Iveco and Volvo/Renault) for taking part in a major 14-year cartel on the European truck manufacturing market. The sixth participant, Scania, had refused the (...)

Michel Debroux Loi Lurel : The French competition authority fines a manufacturer of fruit products and its local importers applying a French law that prohibits agreements which grant exclusive import rights in the French overseas territories (Distribution des produits de grande consommation en Outre-mer)

905

The Authority is continuing its crusade against exclusive import agreements in the Overseas Collectivities, which began nearly ten years ago with the wide-ranging investigation that led to the adoption of Opinion No. 09-A-45 of 9 September 2009 and, subsequently, the adoption of the "Lurel" Act (...)

Michel Debroux Indemnification of damages: The Court of Justice of the European Union limits the scope of the protection granted to leniency applicants, thereby facilitating private antitrust damage actions (AGC Glass Europe)

167

The cartel in automotive glass, which was heavily sanctioned by the Commission’s decision of 12 November 2008 (Case C(2008) 6815 final), has been the subject of several judgments on the merits in recent years, such as the judgments of the Court of First Instance of 27 March 2014, Saint-Gobain, (...)

Michel Debroux No ground to refer: The French Competition Authority dismisses a claim in a case of termination of a partnership agreement in which the claimant complained for cartel practices and abuse of dominant position (Moving sector)

160

The removals sector has been the subject of sustained attention by the European and French competition authorities in recent years, and the decisions on the relocation of military personnel to the North-East region (Decision No 09-D-19) or in Martinique (Decision No. 14-D-16), or with regard to (...)

Michel Debroux Report: The European Commission publishes a report on the monitoring exercise carried out with ten European competition authorities in the online hotel booking sector in 2016 (“Report on the monitoring exercise carried out in the online hotel booking sector by EU competition authorities in 2016”)

206

Ex-post evaluation exercises in the field of competition policy remain relatively rare and are largely confined to measures adopted in the context of merger control. One recalls, for example, the "Lear" report, commissioned by the Commission in 2006 to assess the results of numerous merger (...)

Michel Debroux Evidence of participation: The European Court of Justice dismisses all the appeal brought against the judgments of the General Court of the European Union in the candle waxes cartel case (Hansen & Rosenthal ; Tudrapetrol ; H&R ChamPharm)

226

On 1 October 2008, the Commission fined nine companies €676 million for participating in a cartel on the European Economic Area (EEA) market for paraffin waxes between 1992 and 2005. The three judgments briefly commented on here dismiss in their entirety the appeals by which the appellants (...)

Michel Debroux Bid rigging: The Paris Court of Appeal rejects an appeal brought against an old bid-rigging case and brings clarifications with respect to standard of proof (Colas Rail)

191

Back to the past... here is indeed an old case, judged on the merits for the first time by the Court of Appeal almost 14 years after the facts and almost 8 years after the decision was referred, which brings back memories of the time when the Authority’s decisions were not based mainly on (...)

Michel Debroux Single economic entity: The European Court of Justice applies in a classic way its jurisprudence about the liability of mother companies for the anticompetitive conduct of a joint venture (Toshiba Corp)

275

The case concerning the worldwide cartel of cathode-ray television and computer screen tubes has already given rise to comments in this Review on the occasion of the Judgments of the Tribunal (see, in particular, No. 4-2015, p. 116), and the appeals against those judgments have the honours of (...)

Michel Debroux Infraction by object : The General Court of the European Union confirms that the exchange of commercially sensitive information between competitors can constitute a restriction of competition by object (Infineon Technologies ; Philips)

367

Can exchanges of sensitive commercial information between competitors, as such and without explicit concertation on prices or the allocation of customers or markets, constitute an infringement by object? That is one of the main questions, already addressed by the Court of Justice in several (...)

Michel Debroux Limitation statute: The French Competition Authority has no choice but to declare a complaint inadmissible on the ground of statute of limitation, due to the failure of its investigating services to carry out the additional investigations it had requested (Placement Direct, SDC Investissement)

224

The strict separation of the prosecution and trial functions within the Competition Authority is a principle that has been established since the Campenon Bernard ruling of 5 October 1999 by the Cour de Cassation, and no one is now thinking of challenging this principle. However, the not very (...)

Michel Debroux E-Commerce: The European Commission’s preliminary report confirms the rapid growth of e-commerce within the European Union and identifies business practices that might restrict competition and consumer choice

212

In May 2015, the European Commission launched a major sector-wide survey on e-commerce, collecting responses from more than 1,800 e-commerce players (marketplaces, suppliers, distributors, price comparison sites, digital content publishers, etc.). This survey is part of the Commission’s strategy (...)

Michel Debroux Obligation of motivation: The Court of Justice of the European Union rejects in a very short ruling an appeal brought against one of the judgments in the pre-stressing steel cartel (Trafilerie Meridionali, Ori Martin et Siderurgica Latina Martin)

155

It should be noted that these two fairly brief judgments handed down by the Court of Justice on appeal against the judgment of the Court of First Instance of 15 July 2015 (Case T-422/10) in the case of the prestressing steel cartel, which has already been the subject of several comments in this (...)

Michel Debroux Purely internal situation: The Court of Justice of the European Union clarifies the limited conditions under which a company can be held liable for the anticompetitive behavior of a service provider (SIA “VM Remonts”)

370

The commented judgment, delivered on a question referred for a preliminary ruling, confirms that the Court, even in purely internal situations, is rarely reluctant to teach Union law when the aim is to ensure its uniform interpretation (see, in particular, CJEU 26 November 2015, Maxima Latvija, (...)

Michel Debroux Resale price maintenance: The French Competition Authority condemns two importers of mobile heaters as well as some of their French distributors for a combined set of horizontal and vertical anticompetitive agreements (PVG, Ligne Plus, Leroy Merlin)

260

This decision is reminiscent of an old case which, like this one, combined elements of a horizontal cartel between two importers and a vertical cartel between them and their main distributors in France, namely the so-called "school calculators" case (CA Paris, 21 September 2004). This case also (...)

Michel Debroux Restriction of competition: The General Court of the European Union rules, upon referral following a famous judgment by the Court of Justice of the European Union that clarified the concept of restriction of competition by object, that various mechanisms implemented by the leading payment cards system in France did have anticompetitive effects (Groupement des cartes bancaires)

287

In a judgment of September 11, 2014, noted and commented on extensively, including in this Review Concurrences (Case C-67/13, CB v Commission, note M.B.-T.), the Court of Justice of the EU had put an end to what might appear to be a drift from the concept of restriction of competition "by (...)

Michel Debroux Parental liability: The Court of Justice of the European Union rules that the disregard, by a subsidiary, of express instructions given by the parent company not to enter into anticompetitive agreements, is insufficient to reverse the capitalistic presumption that triggers the parental liability (Evonik Degussa and AlzChem)

265

Back to modern legal fiction. There are countless comments in this column on the theme of presumption-capital-presumption-refutable-but in fact-manifestly-irrefutable-indepit-of-denials-prudential-jurisprudential-as-constant-unconvincing? The judgment commented on here provides a further (...)

Michel Debroux Influence: The Court of Justice of the European Union rules that the right to be heard in camera cannot be exercised if it jeopardizes the rights of defence of a third party, and that the allegation that a former parent company did continue to exercise a decisive influence on its former subsidiary is insufficient to reverse the capitalistic presumption that triggers the parental liability (SKW Sthal Metallurgie et SKW Sthal Metallurgie Holding)

273

On 16 June 2016, the EU Court of Justice delivered two judgments in the case of the calcium carbide and magnesium carbide reagent cartel. The first judgment, discussed above, deals with the consequences of a subsidiary’s failure to comply with express instructions given by the parent company not (...)

Michel Debroux Proportionality of fines: The Court of Justice of the European Union considers that a fine amounting to more than 90 % of the turnover of the subsidiary, participant to the cartel, is not disproportionate as long as it does not exceed the 10 % limit applicable to the group’s global turnover, even in the alleged absence of any concrete effect of the practice on the market (CEPSA, PROAS et Repsol)

297

The cartel in the Spanish road bitumen market, involving different producers as well as several bitumen importers, was detected as a result of the leniency programme. In addition to the first leniency applicant (a BP group company), several companies applied for immunity for providing relevant (...)

Michel Debroux Amount of fine: The General Court of the European Union dismisses the appeal and states that the Commission is not bound to enter into transactional talks with the parties (Panalpina)

155

In this second judgment in the international air transit services cartel case, the Court of First Instance dismissed the action brought by a Swiss company and several of its subsidiaries, condemned by the European Commission for their participation in this cartel, the main features of which (...)

Michel Debroux Affectation du commerce: The General Court of the European Union dismisses the appeal and explains the link between the definition of the relevant market and the effect on trade between member States (EGL, Ceva Freight (UK) et Ceva Freight Shanghai)

3223

It is always interesting to examine the reasons why the Tribunal, after having summarized the pleas in law on which the appeals before it are based, decides to change the order in which those pleas are examined, or even to merge the examination of several of them. That is how the Court of First (...)

Michel Debroux Calculation of the fine: The General Court of the European Union dismisses the appeal and clarifies the rules applying to the value of sales taken into account when calculating the amount of the fine (Kühne + Nagel)

2524

As the third and final judgment commented on in this case, the Kühne judgment is the only one to deal with all four aspects of the cartel in international air transit services. It gives rise to almost 20 pleas in law, grouped by the applicants into four groups corresponding to the four (...)

Michel Debroux Online sale: The Paris Court of Appeal confirms the French Competition Authority dismissal of an interim measures request due to the lack of evidence of an immediate danger to the claimant’s interests (Concurrence / Samsung)

171

Under the impetus of its Managing Director, Mr Jean Chapelle, Competition is well known to competition practitioners - and therefore to the readers of this Review - for the assiduity with which it provides the national and European authorities and courts with various and varied complaints. The (...)

Michel Debroux Agricultural policy: The European Commission publishes new guidelines, following the 2013 agricultural common policy reform, allowing the producers of olive oil, beef and veal, and arable crops to derogate under condition from the prohibition of anti-competitive agreements

151

The relationship between competition law and the rules applicable to the agricultural sector is often delicate and a source of friction (see for example our contribution "Agriculture and competition, towards a new relationship"...).). Since 2013, the Commission has endeavoured to develop this (...)

Michel Debroux NF Trademark: The French Competition Authority issues, on its own initiative, an opinion proposing several measures improving the functioning of the standardization and certification process, with specific proposals for the construction sector

133

No one today would dispute the importance of the Competition Authority’s work in the area of opinions since the LME gave it the possibility of issuing opinions on its own initiative. We remember, of course,Opinion 12-A-01 of 11 January 2012 on the competitive situation in the food distribution (...)

Michel Debroux Facilitator: The Court of Justice of the European Union confirms, against the opinion of Advocate General Nils Wahl, the sanction of a cartel facilitator, who is not active on the market of the cartel, on behalf of the “full effectiveness” of article 101 § 1 TFEU (AC-Treuhand)

391

It will be recalled that Advocate General Nils Wahl suggested in very strong terms that the Court should uphold the appeal brought by AC-Treuhand and set aside the judgment of the Court of First Instance of 6 February 2014 (Case T-27/10) which had confirmed its condemnation by the Commission as (...)

Michel Debroux French overseas territory: The French Competition Authority rules that the commitments subscribed by four producers of convenience goods in the French overseas are mandatory (Bolton Solitaire, Danone, Johnson & Johnson Santé, Beauté France, Pernod-Ricard)

161

Under the chairmanship of Mr Thierry Dahan, whose involvement in the overseas territories is well known (firstly through his essential contribution to the founding opinion delivered on 8 September 2009 by the Competition Authority on the mechanisms for importing and distributing consumer goods (...)

Michel Debroux Fines : The General Court of the European Union mostly confirms the sanctions imposed on seven companies in the case of television tubes but reduces the fine of one of the companies (Panasonic e.a.)

148

On September 9, the Tribunal delivered several judgments in the cathode ray tube case, one of the most emblematic cartels of recent years. The Commission had imposed record fines of €1.47 billion on seven world-class companies for their participation in two cartels in the cathode ray tube (...)

Michel Debroux Amendment of a decision : The General Court of the European Union annuls a Commission’s decision, modifying a prior decision that was adopted without a new statement of objections being addressed to the applicants and without the latter having enough time to present their views (Akzo Nobel)

155

Who hasn’t dreamed, stuck in an endless traffic jam on the highway, of one day taking the hard shoulder and getting around the difficulty? That is something of what the Commission has done, and the Commission is being punished by the Court of First Instance for wanting to adopt a new decision, (...)

Michel Debroux Limitation period : The General Court of the European Union upholds most of the Commission decision in the heat stabiliser cartel, but annuls it with respect to some subsidiaries, on grounds of statute of limitation (Akzo Nobel)

167

Akzo and its numerous subsidiaries continue to contribute to an impressive body of European case law, and the judgment under comment adds a further stone to the edifice. It will be recalled in particular that it was the checks carried out by the Commission in February 2003 in this case which (...)

Michel Debroux Evidence of infringement : The General Court of the European Union assesses the infringement interruption and considers that the continuous nature of the infringement cannot result from mere speculation and must be proven with respect to the context and the market characteristics (FSL Holdings)

184

This lengthy judgment, handed down by the Court of First Instance in the case of the banana cartel in Greece, Italy and Portugal, contains extensive, if not new, developments on the rules of proof of a cartel, whether it is an agreement or a concerted practice. It partially censors the decision (...)

Michel Debroux Collective commitment : The French Competition Authority actively regulates the sector of poultry meat in France and sanctions an agreement operated by several players of the sector, but deviates from its fining practice by taking into account a collective commitment of the parties involved, aiming at the creation of an inter-branch organisation in the poultry industry

199

The egg or the chicken? Which, competition law or regulation, comes before the other? It is precisely on the occasion of a decision sanctioning a cartel in the poultry sector that the Competition Authority provides a first response to this question, by making competition law a tool to (...)

Michel Debroux Customer allocation : The Advocate General Nils Wahl suggests to the Romanian Supreme Court to rule that customer allocation practices qualify as by-object restriction, even though the number of clients affected by the practice proved to be low (ING Pensii)

1580

The Opinion of Advocate General Nils Wahl on a question referred by the Romanian Court of Cassation for a preliminary ruling concerning the classification of a customer allocation practice as a restriction by reason of its object is of interest. These conclusions usefully clarify a debate (...)

Michel Debroux Joint venture : The Court of Justice of the European Union states that the sales value of the joint venture to its mother companies, in fact considered as third-party sales, can be taken into account when calculating the fine (LG Display)

295

Are the parent companies of a joint venture ’independent third parties’ in relation to the joint venture, despite the structural links between them? On reading the Court’s extensive case-law on the question of the imputability of anti-competitive practices of a subsidiary (or a joint venture) to (...)

Michel Debroux Guidelines - Fines : The French Supreme Court upholds the legality of the Competition Authority’s fining guidelines, even though adopted in the course of the procedure (Royal Canin)

324

Cass. com, 17 March 2015, Royal Canin and others, Appeals No. 13-26.003, 13-26.083 and 13-26.185 The Court of Cassation, before which several appeals have been lodged against the Paris Court of Appeal’s decision of 10 October 2013 in the dog and cat food case, had to rule for the first time on (...)

Michel Debroux Imputability : The Court of Justice of the European Union upholds the General Court’s judgment in the chloroprene rubber case but paves the way to a massive extension of the scope of recidivism applied to the mother company, thereby damaging the rights of defense (Versalis, ENI)

334

CJEU, 5 March 2015, Versalis and ENI v Commission, cases C-93/13 P and C-123/13 P. The issue at stake in this case, which raises the question of a form of retroactive application of recidivism, but also of the capital presumption, is an important one: can a parent company see its current (...)

Michel Debroux Exchange of information : The French Competition Authority sanctions a practice of exchange of information on the market of wall paper on the basis of a leniency application (Wall paper)

420

Aut. conc., Dec. no. 14-D-20 of 22 Dec. 2014 on practices implemented in the wallpaper sector in France It is another matter of information exchange, of which this column is abundantly provided. After the Court’s Dole Fooddecision (cf. above) and the Authority’s decision in the Household and (...)

Anaïs Moyrand, Michel Debroux Cartels : The French Competition Authority heavily fines two cartels active in the sectors of home and personal care products sold in supermarkets, discovered thanks to the leniency program (Home and personal care products)

412

Aut. conc., Dec. no. 14-D-19 of 18 Dec. 2014 on practices implemented in the cleaning products and insecticides sector and in the hygiene and body care products sector On 18 December 2014, the Competition Authority adopted a decision imposing very heavy sanctions on the participants in two (...)

Michel Debroux Liability: The General Court of the European Union reaffirms the principles governing the parental liability for anticompetitive practices carried out by a subsidiary, but annuls the Commission’s decision for lack of appropriate motivation (Alstom)

286

Although the Court of First Instance and the Court of Justice have not gone back on the very principles of its case-law on the imputation to the parent company of the anti-competitive practices of its subsidiary - which are known to result today in rendering the de facto capitalist presumption (...)

Michel Debroux Flat glass : The Court of Justice of the European Union annuls the General Court’s judgment in the flat glass cartel, on the ground of a violation of the principle of equal treatment resulting from the exclusion, for the other members of a cartel, of “internal sales” (Guardian)

611

It will be recalled that, by Decision C(2007) 5791 of 28 November 2007, the Commission found that the undertakings Guardian, Asahi Glass, Pilkington and Saint-Gobain had participated in a single and continuous infringement of Article 81(1) of the EC Treaty consisting in the fixing of prices in (...)

Michel Debroux Commercial autonomy : The French Supreme Court partially annuls a judgment of the Paris Court of Appeals on the ground that the fine imposed on a subsidiary, whose commercial autonomy vis-à-vis its mother company has been confirmed, cannot be increased by reason of its belonging to a group (Inéo)

285

The Court of Cassation makes its contribution to the debate on parent-subsidiary relations in competition law and, more specifically, on the determination of the amount of the fine imposed on a subsidiary whose commercial autonomy vis-à-vis its parent company has been recognised, albeit (...)

Michel Debroux Individualisation of the fine : The Paris Court of Appeals partially annuls a decision of the French Competition Authority relating to the pork meat producers cartel, but maintains an ambiguity in the assessment of “single-product” activities while determining the level of fine (Bigard)

351

What is a "mono-product" company? Should this characteristic be assessed in the light of the undertaking directly concerned by the practices penalised or in the light of the group to which it may belong? These are the questions raised in the appeal brought by several undertakings against the (...)

Michel Debroux Multilateral interchange fees : The Court of Justice of the European Union upholds the General Court’s judgment that confirmed the Commission’s decision forbidding the multilateral interchange fees in the bank cards payment system (MasterCard)

247

Rendered on the same day as the CB judgment discussed at length above and which amounts to a stricter conception of the concept of anti-competitive object, the MasterCard judgment provides an excellent illustration of the ’battle of the effects’ which this return suggests. It is the epilogue of a (...)

Michel Debroux Exchange of information : The European Commission grants leniency to a member of a cartel and fines three other undertakings for having establised collusive practices in the sector of smart card chips (Infineon, Philips, Samsung, Renesas)

187

On 3 September 2014, the Commission imposed a fine of €138 million on four card chip producers (Infineon, Philips, Samsung and Renesas, at the time a joint venture between Hitachi and Mitsubishi) for various collusive practices between September 2003 and September 2005. The practices, as far as (...)

Michel Debroux Foreclosure of competitors : The European Commission fines a pharmaceutical laboratory and its five competitors for having agreed to protect its generic core (Servier)

242

The third decision adopted by the European Commission in a "pay-for-delay" dossier after the Lundbeck decisions of 19 June 2013(COMP/ AT. 39226) and Novartis of 10 December 2013 (COMP/ AT. 39226).(COMP/. AT. 39685) is by far the most severe penalty. Servier was fined almost €331 million, while (...)

Michel Debroux Presumption of liability: The Court of Justice of the EU dismisses the appeal formed by a parent company looking to annul the decision of the General Court establishing its responsibility for the actions committed by a subsidiary (FLS Plast)

204

The FLS Plast judgment of the Court of 19 June 2014 is in line with the appeals already decided by the Court in the industrial bags case (Commission decision in Case 38.354 of 30 November 2005). In particular, this judgment provides an opportunity for the Court to further develop its case law (...)

Michel Debroux Evidence: The Court of Justice of the European Union dismisses one of the appeals in the plastic industrial bags case and provides some clarifications on the rules governing evidence in cartel cases (Plásticos Españoles)

121

This new judgment of the Court in the industrial plastic bags case comes after the Gascogne Sack Deutschland (C-40/12 P), Kendrion (C-50/12 P) and Groupe Gascogne (C-58/12 P) judgments.(already discussed in this column). Two pleas in law were raised, both of which were rejected after brief (...)

Michel Debroux Price fixing: The European Commission grants immunity for leniency to a member of the steel abrasive cartel and grants the reduction of the fine to the other members for having used the transaction process (Ervin)

125

On 2 April 2014, the Commission fined four companies a total of EUR 30 707 000 for a price cartel. These companies, which specialise in the production and sale of metallic abrasive shot, had in fact agreed on the resale prices of their products for more than six years. The context was (...)

Michel Debroux Opinion: The Advocate General Niels Wahl reproaches to the General Court a too extensive conception of the notion of restriction of competition by object (Groupement des Cartes bancaires)

347

In his conclusions in the Groupement des cartes bancaires en France case, Advocate General Niels Wahl makes an interesting contribution to the debate on the concept of restriction of competition by object, emphasising that this case offers the Court an opportunity to refine its "somewhat (...)

Michel Debroux Leniency: The European Commission fines producers of foam for mattresses, sofas and car seats € 114 million in cartel settlement (Vita, Carpenter, Recticel, Eurofoam)

410

Following an application for immunity, the European Commission launched an investigation into a cartel between the four main producers of polyurethane foam, Vita, Carpenter, Recticel and Eurofoam. For almost five years, between October 2005 and July 2010, these companies agreed to coordinate (...)

Michel Debroux Imputability: The General Court of the European Union confirms the imputability of the unlawful conduct of a subsidiary to its successive parent companies and adjusts the level of the fine marginally (Evonik Degussa, Alzchem, SKW Stahl-Metallurgie, Gigaset)

258

Trib. EU, 23 January 2014, Evonik Degussa and AlzChem v Commission, Case T-391/09 Trib. UE, 23 January 2014, SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission, Case T-384/09 Trib. EU, 23 January 2014, Gigaset v Commission, Case T-395/09 We have already commented in a (...)

Michel Debroux Dismissal: The French Competition Authority decides not to fine companies under article L. 420-1 of commercial code in the sector of electronic dissemination of economic and legal information on companies (GIE Infogreffe)

104

GIE Infogreffe has not engaged in any anti-competitive practice in the sector of electronic dissemination of economic and legal information on companies. This is the conclusion reached by the Competition Authority after an in-depth examination of Infogreffe’s pricing practices and its relations (...)

Michel Debroux Parental liability : The General Court of the European Union upholds the Commission’s decision and provides important clarifications on the issue of parental liability in the absence of shareholding presumption (Holding Slovenske elektrarne)

246

Here is a judgment as interesting as it is criticizable rendered by the Court of First Instance, which paradoxically shows that the capitalist presumption is indeed de facto irrefutable, even though it was not invoked in this case. In its first plea, to the examination of which the Court of (...)

Michel Debroux Parental liability : The Court of Justice of the European Union rejects all appeals in the bleaching cartel – including the Commission’s – and details the scope of the Commission’s motivation obligation (Edison, Caffaro, SNIA, Solvay Solexis, Solvay)

231

CJEU, 5 December 2013, Caffaro v Commission, Case C-447/11 P CJEU, 5 December 2013, SNIA v Commission, Case C-448/11 P CJEU, 5 December 2013, Solvay Solexis v. Commission, Case C-449/11 P CJEU, 5 December 2013, Solvay v. Commission, Case C-455/11 P Cases in which the liability of the parent (...)

Michel Debroux Effective judicial protection : The grand chamber of the Court of Justice of the European Union dismisses several arguments based on the Charter of fundamental rights, while opening the door to a future indentification action based on the excessive duration of the proceedings before the General Court (Groupe Gascogne)

576

This could be summed up as a double missed opportunity. The first missed opportunity is that which would have made it possible to judge whether the systematic imputation of anti-competitive practices by a subsidiary to its parent company was in conformity with the Charter of Fundamental Rights (...)

Michel Debroux Concerted practices : The Paris Court of appeal upholds the decision by the French NCA to dismiss a complaint based on alleged concerted practices resulting in the termination of supply contracts (Roland Vlaeminck Tisseur)

115

Board of Directors Paris, 26.09.2013, Roland Vlaeminck Tisseur, 2012/08948 Board of Directors Paris, 26.09.2013, Roland Vlaeminck Tisseur, 2012/08948 Let us quickly point out this decision of the Court of Appeal, which deals essentially with the issue of abuse of a dominant position (not (...)

Michel Debroux Calculation of the amount of the fine: The General Court confirms most of the Commission’s decision imposing fines totalling EUR 183,6 million to four groups of companies for participating in a cartel for bitumen in Spain (Galp Energía a. o)

159

In its decision of 3 October 2007, the Commission imposed fines totalling €183.6 million on four companies that participated in a cartel on the bitumen market in Spain between 1991 and 2002. The fine imposed on Repsol and Proas was increased because of the leading role played by these two (...)

Michel Debroux Single and continuous infringement : The General Court globally upholds the Commission’s decision imposing fines totalling EUR 676 million to nine undertakings, but slightly reduces the fine imposed on an undertaking and applies a full proportionality principles in computing the consequences of the duration of the infringement (Total)

318

As regards the sanctioning of anti-competitive practices, if taking into account the duration of an infringement were an election, it would be decided on the basis of full proportionality. That is - hardly a caricature - the main lesson of the two judgments delivered by the Court of First (...)

Michel Debroux Determination of fees: The Court of Justice rules that a code of conduct enacted by a professional association, that includes the “dignity of the profession” among the criteria which define the remuneration of fees, may have an anticompetitive effect that the national judge must appreciate in concreto (Italian geologists)

155

The Italian Consiglio di Stato referred to the Court for a preliminary ruling an unusually lengthy set of questions in a case in which the compatibility of a professional regulation which included the ’dignity of the profession’ among the criteria for fixing fees was at issue. The Consiglio di (...)

Michel Debroux Commitments: The French Competition Authority identifies several contractual clauses limiting competition in the sector of sea freight between Europe and the French Antillas, and obtains commitments with a view to remedy the “market inertia” (Practices implemented in the sea freight transport sector between Northern Europe and the French Antilles)

105

The Competition Authority’s opinions sometimes look like Russian dolls: open one of them, and other opinions or decisions will come out of it. This is the case of the decision adopted on June 25, 2013 by the Authority, following a referral ex officio which followed various findings made during (...)

Michel Debroux, Perrine Fages Fee structure: The French Competition Authority fines a professional association and a professional union for having established a charter restricting their members’ freedom of commercial action (Practices implemented within the framework of relations between veterinary surgeons and animal protection societies in the Alsace region)

221

In its decision of 11 June 2008, the Authority, acting on its own initiative, sanctioned the Regional Council of the Ordre des vétérinaires d’Alsace (hereinafter ’CROV’) and the Syndicat national des vétérinaires d’exercice libéral - Section du Bas-Rhin for having put in place, from 1991 to 2008, a (...)

Michel Debroux Retail prices: The Court of cassation rejects in substance the appeal brought by several companies in the luxury perfume case and upholds the scope of archiving obligations to be borne by the companies in anticompetitive practices (Luxury perfume case)

311

With this ruling of 11 June 2013, handed down on ten appeals against the Court of Appeal’s ruling of 26 January 2012, the Court of Cassation puts an end to the long, very long "Perfumes" case. The French Competition Authority, which took up the matter on its own initiative on October 21, 1998, (...)

Michel Debroux Concerted practices: The Paris Court of Appeal confirms that recommended prices must be considered as mandatory if a price monitoring is actively implemented (Le Géfil)

161

You don’t mess with the "right price." This is not the programme broadcast on TF1, but the name of a file of "recommended" awards drawn up by Gefil, a trade association of private players in the leisure, culture and tourism engineering sector, which was named - quite awkwardly, it must be (...)

Michel Debroux Price coordination: The French Competition Authority fines a cartel between several companies which entered into a complex, single and continuous infringement, and provides several important details on the leniency procedure (Distribution of commodity chemicals cartel)

302

On 28 May 2013, the Competition Authority adopted its seventh decision applying the leniency procedure provided for in Article L. 464-2 IV of the French Commercial Code, which is also the first decision applying cumulatively the said leniency procedure and the non-contestation of objections (...)

Michel Debroux Retail prices: The Paris Court of Appeal rejects a distributor’s action of toy and fancy goods for anticompetitive practices, who challenged the existence of resale price maintenance (Kontiki)

259

After the attention it received from the Competition Authority, it was before the Court of Appeal that the little Diddl mouse, former schoolyard star, came to plead before the Court of Appeal. We recall that in its decision 11-D-19 of December 15, 2011The Authority had sanctioned resale (...)

Michel Debroux Excessive duration of the procedure: The Court of Justice upholds the General Court’s ruling that had partially annulled the Commission’s Dutch beer cartel decision, notably by setting aside the arguments based on alleged violations of the company’s rights of defence (Bavaria and Heineken)

238

CJEU, 19 December 2012, Bavaria v. Commission, Case C-445/11 P In two judgments delivered on 19 December 2012, the Court of Justice dismisses the appeals brought by two Dutch brewers against the judgmentof the General Court of 16 June 2011 in Case T-235/07which had allowed their actions in (...)

Michel Debroux Access to the files: The Advocate General Jääskinen recommends to the Court to judge contrary to the European law, the national legislation which prohibits to the third parties access to the files, held by a national court (Donau Chemie)

161

Form of order sought AG Niilo Jääskinen, 7 February 2013, Donau Chemie, Reference for a preliminary ruling from the Oberlandesgericht Wein, Case C-536/11 In this case, the Court is called upon to apply the principles set out in the Pfleiderer judgment of 14 June 2011 and to rule on the (...)

Michel Debroux Discriminatory practices: The French Competition Authority rejects a request for discriminatory practices in the area of ​​troubleshooting and vehicles’ towing (Copaco)

207

Aut. conc., Dec. No. 13-D-02 of February 4, 2013, "Copaco". Let us briefly mention, for the record, this decision concluding in the rejection of the referral of an Alsatian breakdown company, which complained of alleged discriminatory practices implemented by a corporation (an institution (...)

Michel Debroux Concerted practices: The General Court partially annuls the Commission’s CISAC decision of 16 July 2008 for lack of evidence of concerted practices with respect to territorial exclusivities (National collecting societies)

233

This case gives the Court of First Instance an opportunity to recall and illustrate the rules governing the rules of evidence in relation to anti-competitive practices, and in particular those specifying the burden on the Commission and on the undertakings concerned in demonstrating - or (...)

Michel Debroux Public procurement: The French Competition Authority fines a cartel between two construction companies for collusion in the context of a public procurement for the reconstruction of watchtowers at the prison of Perpignan (Practices implemented in a public procurement for the reconstruction of watchtowers at the prison of Perpignan)

425

Decisions to convict a cartel implemented through a public tendering process rarely generate much theoretical interest, and this decision of April 7, 2013 is no exception. It should be noted, however, that in this case, the two undertakings took little precaution to conceal their cartel and (...)

Michel Debroux Error on the practice’s legality: The Advocate General Kokott suggests to the Court to state that a company that breaches competition law by mistake on the basis of its lawyers advice and of a national competition authority’s decision, can not be fined without error or negligence (Schenker)

127

Opinion of AG Kokott, 28 February 2013, Schenker und Co, Reference for a preliminary ruling from the Oberster Gerichtshof, Case C-681/11 It will be interesting to read the Court’s judgment in a few months’ time in this case, which essentially raises the question of the possibility of penalising (...)

Michel Debroux Pork meat sector: The French Competition Authority fines various practices implemented in the pork meat sector, by individualizing finely the fines and accepting some forms of exchange of information without anticompetitive object or effect (Pork meat sector)

191

Concordance No. 13-D-03 of February 13, 2013, concerning practices implemented in the pork butchering sector. The Authority’s recent decision in the pork butchering sector is interesting for a number of reasons. The Authority’s recent decision in the pork butchering sector is interesting for a (...)

Michel Debroux Ticketing sector: The French Competition Authority fines a cartel between three ticketing operators, aimed at driving a new competitor out of the market (Ticketing sector)

163

Const. dec. no. 12-D-27 of 20 December 2012 on practices identified in the performance ticketing sector. Let us begin by paying due tribute to the subtle humour with which the Authority sometimes knows how to embellish its press releases, unless it is a mischievous coincidence? Thus, we read (...)

Michel Debroux Fire extinguishing sector: The French Competition Authority moderately fines a professional association for imposing discriminatory certification rules for fire extinguishers, restricting access to the French market for operators offering equipment lawfully marketed in the European Union (Fire extinguishing sector)

288

Aut. conc. dec. no. 12-D-26 of 20 December 2012 on practices implemented in the marketing, installation and maintenance of fire extinguishers In this decision, the Competition Authority examined various practices which, by unnecessarily complicating the obtaining of an NF standard relating to (...)

Michel Debroux Fines - Proportionality - Ability to pay: The General Court rejects in 4 judgments the appeals and sheds some light on the calculation method of fines and the proportionality principle, and interprets strictly the concept of ability to pay (Calcium carbide and magnesium)

198

Trib. EU, 12 December 2012, Market for calcium carbide and magnesium intended for the steel and gas sectors, 4 judgments, Case T-352/09 Although they do not provide any particularly new or striking elements, these four judgments contain interesting clarifications on the interpretation of (...)

Michel Debroux Association of undertakings: The General Court of the European Union rejects in whole the appeals brought against the Commission’s decision of 17 October 2007 and upholds both the market definition and the competition analysis, based on a restriction of competition by object and on a lack of justification on the basis of Art. 81, § 3 of the Treaty (Groupement des cartes bancaires)

253

Trib. UE, 29 November 2012, Groupement des cartes bancaires "CB", Case T-491/07 It is a long and instructive judgment that the Tribunal delivered on 29 November 2012 in the Carte Bleue case. In dismissing the action brought against the Commission’s decision of 17 October 2007, the Court of (...)

Michel Debroux Restriction of competition : The French competition authority analyses the market for repair, maintenance and spare parts in the automotive sector and recommends a gradual opening up to competition (Functioning of competition in the sector of car repair and maintenance, and the manufacturing and distribution of spare parts)

255

Concordant Aut. opinion No. 12-A-21 of 8 October 2012 on the competitive functioning of the vehicle repair and maintenance and spare parts manufacturing and distribution sectors. Pressure is increasing on car manufacturers to challenge their quasi-monopoly, often based on intellectual property (...)

Michel Debroux Parental liability: The General Court essentially confirms in 16 judgments the Commission’s decision of 13 September 2006, but marginally reduces the fine in two cases, on the basis of, respectively, insufficient evidence supporting an alleged leadership role, and a violation of the rights of defence (Dutch road bitumen)

202

Trib. EU, 27 September 2012, Dutch road bitumen market, Sixteen judgments, no less than 500 pages in length, it is to a lengthy reading that the Tribunal invites the daring commentator of its judgments delivered on 27 September 2012 in the case concerning road bitumen in the Netherlands. (...)

Michel Debroux Parallel exports: The French Competition Authority suggests amendments in order to limit the restrictions on parallel trade of medicinal products between EU Member States, while preserving the public health objective of the decree (Supply of medicinal products for human use)

170

Concordant Aut. opinion of 20 July 2012 on a draft decree on the supply of medicinal products for human use After veterinary medicinal products, which the Authority addressed in an opinion commented on in the previous column (this review Concurrences No. 3-2012, p. 99), the Authority turned (...)

Michel Debroux Producer responsibility: The French Competition Authority clarifies the conditions in which PROs take action in the waste collection, sorting and treatment market and the materials recovery market (Waste management sector)

118

Opinion of 13 July 2012 on the waste management sector covered by the principle of extended producer responsibility It has long been known that eco-organisations, while having a mission of general interest and being non-profit-making, act according to market mechanisms and are therefore (...)

Michel Debroux Cartels: The General Court reduces significantly the fines imposed on two natural gas suppliers, on grounds of a miscalculation by the Commission of the duration of the infringements (E.ON Ruhrgas and E.ON - GDF Suez)

187

These judgments, handed down on the day this column is finalized, will be commented on in detail in the next issue of the journal. It should be noted that, as a result of an error by the Commission concerning the duration of the practices in question on the French market, the Court of First (...)

Michel Debroux Duration of the infringement: The General Court reduces the fines imposed on two energy incumbent companies due to an incorrect assessment as regards the duration of the infringement (GDF Suez, E.ON Ruhrgas et E.ON)

219

GCEU, 29 May 2012, GDF Suez vs. Commission, Case T-370/09 GCEU, 29 May 2012, E.ON Ruhrgas AG and E.ON AG, case T-360/09 How can restrictions of competition rooted in a historical context characterised both by the absence of actual or potential competition at a given time, but by prospects, (...)

Michel Debroux Grouping of purchases: The French Competition Authority delivers an opinion relating to grouping of purchases, with a view to obtain volume rebates (Distribution of veterinary medicines)

203

Aut. conc. opinion No 12-A-14 of 19 June 2012 on the effects of grouping together veterinarians involved in the distribution of veterinary medicinal products on competition. On 19 June 2012, the Competition Authority issued an opinion on the effects of the grouping of veterinarians involved in (...)

Michel Debroux Cartels - Damage to economy: The Court of Cassation rejects an appeal relating to the issue of damage to economy and puts an end to the French telephony cartel case (Orange France)

231

Cass. com, May 30, 2012, Orange France, n° 11-22144, "Téléphonie Mobile". Saga of the cartel of mobiles, continuation and end. The third ruling handed down by the Court of Cassation in this case brings to an end seven years of proceedings, begun by decision 05-D-65 of the Competition Council and (...)

Michel Debroux Duration of the proceedings – individual penalties: The Paris Court of Appeal confirms most of the competition Council’s decision in the perfume luxury sector in spite of the very long duration of the proceedings and imposes strict data conservation obligations; it nevertheless marginally reduces the fines, criticising the Council’s lack of individual assessment (Beauté Prestige International)

249

CA Paris, ch. 5-7, January 26, 2012, Beauté Prestige International and others; on second reference after cassation, against Cons. conc. dec. no. 06-D-04 of March 13, 2006, luxury perfumery sector Was it really necessary to save the ancient "luxury perfumery" file at all costs...? Despite the (...)

Michel Debroux Community interest: The General Court approves the Commission for rejecting the complaint of an association of wine growers in the Cognac region relating to the practices of the INAO, for lack of Community interest (Comité de défense de la viticulture charentaise)

177

This judgment, which is also commented on in the "Procedures" column (see below, obs. P. Cardonnel). The Commission had received a complaint from the Comité de défense de la viticulture charentaise against the practices of the Institut national des appellations d’origine (INAO) and had rejected (...)

Michel Debroux Joint control – Parental liability: The General Court confirms most of the Commission’s decision sanctioning Danish and Finnish companies in the plastic industrial bags cartel, but limits the parent companies’ liability period in a case of joint control, and reduces slightly the corresponding fines (UPM-Kymmene, FLS Plast and FLSmidth)

293

Trib. EU, 6 March 2012, UPM-Kymmene v. Commission, Case T-53/06, "Industrial plastic bags". Trib. EU, 6 March 2012, FLS Plast v. Commission, Case T-64/06, "Industrial plastic bags". Trib. EU, 6 March 2012, FLSmidth v Commission, Case T-65/06, "Industrial plastic bags". In this case of (...)

Michel Debroux Absolute territorial exclusivity: The Court of Justice, grand chamber, considers that a licence agreement prohibiting the supply of decoding devices to television viewers for their use outside the Member State covered by that licence agreement amounts to a restriction of competition by object (Football Association Premier League)

551

CJEU, 4 October 2011, Football Association Premier League, joined cases C-403/08 and C-429/08 This judgment provides a remarkable illustration of the close links between European competition law and the Treaty objective of achieving the integration of national markets through the establishment (...)

Michel Debroux Contract for the supply of coal: The General Court dismisses actions brought by private coal producers, in considering that the Commission has not committed a manifest error of assessment as to the capacity of the licensed private mines in South Wales (Jones)

241

UECG, 23 November 2011, Jones a.o., Box T-320/07 Briefly, for the record, the judgment by which the Court of First Instance dismissed the action brought by several small coal producers established in South Wales against the decision of the European Commission rejecting their complaint against (...)

Michel Debroux Exclusive distribution: The French Competition Auhtority imposes a fine of 1.34 million Euros on a French distributor for imposing the same resale prices on its retailers (Toy and fancy goods sector)

422

Aut. conc. dec. no. 11-D-19 of 15 December 2011 on practices implemented in the gadgets and novelty goods distribution sector, "Diddl". The Authority is sanctioning a friendly little mouse whose effigy is available in many forms and on many media... For those readers of this column who, while (...)

Michel Debroux Anticompetitive agreements – Public tenders: The French Competition Authority sanctions several construction companies and their common structure for several anticompetitive agreements in Saint-Pierre-et-Miquelon, but reduces the fines by 20 % in consideration of the commitments offered by the companies (Public construction works in Saint-Pierre-et-Miquelon)

210

Aut. conc. dec. no. 12-D-06 of 26 January 2012 concerning practices implemented in the aggregates sector and downstream markets in Saint-Pierre-et-Miquelon The Authority is penalising four undertakings and the EIG formed between them for having implemented several agreements aimed at limiting (...)

Michel Debroux Cartels - Settlement: The European Commission applies, respectively for the fourth and fifth time, the settlement procedure to an agreement in the sector of glass for cathode ray tubes and to an agreement in the refrigeration compressors sector (CRT Glass - Refrigeration Compressors)

295

Eur. Comm., dec. C(2011) 7436 final of 19 October 2011, CRT Glass, case COMP/39605 Eur. Comm., dec. C(2011) 8923 final of 7 December 2011, Refrigeration Compressors, Case COMP/39600 During the period under review, the Commission published two new decisions adopted under the ’settlement’ (...)

Michel Debroux Ban on internet sales: The Court of Justice states that a contractual clause imposing a general and absolute ban on internet sales in the context of a selective distribution system amounts to a restriction by object (Pierre Fabre Dermo-Cosmétique)

608

CJUE, 13 October 2011, Pierre Fabre Dermo-Cosmétique, Case C-439/09 With regard to distribution via the Internet, "it is prohibited to prohibit" seems to be the position taken by the Court of Justice in response to the question referred for a preliminary ruling by the Paris Court of Appeal in (...)

Michel Debroux Imputability - Obligation to state reasons: The General Court annuls the Commission decision in so far as it concerns the mother company for breach of the obligation to state reasons (Koninklijke Grolsch)

523

Trib. EU, 15 September 2011, Koninklijke Grolsch v Commission, Case T-234/07, "Dutch Beer Market". This case is a further illustration of the developments in case law that have emerged in recent months, both in the Court of First Instance and in the Court of Justice, concerning the (...)

Michel Debroux Agriculture and antitrust: Towards new relationships?

1139

A new reform of the Common Agricultural Policy will enter into force in 2013. Without amending the way competition rules apply to the agricultural sector, this reform will likely strengthen the trend initiated in previous reforms, which provide incentives for farmers to adopt a market-oriented (...)

Michel Debroux Agricultural sector – Interprofessional agreement: The French Competition Authority agrees to extend an inter-professional agreement in that it allows free negotiations, on the one hand, and is in favor of the terms of an agreement that allows flexibility in the trade negotiations, on the other hand

409

Concise Aut. opinion No. 11-A-12 of 27 July 2011 on an interprofessional agreement in the turkey sector Concordant Aut. opinion n° 11-A-14 of 26 September 2011 on an interprofessional agreement in the wine sector (wines from the Bergerac region) In two separate opinions, concerning (...)

Michel Debroux Imputability - Repeated infringement: The General Court confirms the existence of a single and continuous infringement but reduces the fine for non compliance with recidivism principles (Installation and maintenance of elevators and escalators)

648

GCEU, 13 July 2011, ThyssenKrupp Liften Ascenseurs a.o. v. Commission, joined cases T-144/07, T-147/07, T-148/07, T-149/07, T-150/07 and T-154/07, "Installation and maintenance of elevators and escalators ". GCEU, 13 July 2011, Koné a.o. v. Commission, Case T-151/07, "Installation and (...)

Michel Debroux Calculation of the fine: The General Court confirms the existence of a market-sharing agreement but annuls the Commission decision in so far as it concerns two companies (Hitachi)

396

Trib. EU, 12 July 2011, Hitachi and Others v. Commission, Case T-112/07, "Gas Insulated Switchgear". Trib. EU, 12 July 2011, Toshiba v Commission, Case T-113/07, "Gas Insulated Switchgear". Trib. EU, 12 July 2011, Fuji Electric v Commission, Case T-132/07, "Gas Insulated Switchgear". Trib. (...)

Michel Debroux Fines: The Court of Cassation rejects the appeal against the decision of the Paris Court of Appeal, stating that the cancellation of one of the charges of the conviction does not necessarily affect the amount of the fine (Lafarge and Vicat)

433

Cass. com, July 12, 2011, Lafarge and Vicat, n° 10-17482 and 10-17791, "Corsican Cement". (See also, supra, "Unilateral Practices" column, obs. A.-L. Sibony) Estimating damage to the economy is not a purely arithmetical matter, and an estimate should not be confused with a presumption. These (...)

Michel Debroux Competition Authority capacity in its advisory function: The French Competition Authority considers that it cannot pronounce on a general agreement in its advisory capacity, but agrees to reply to the general questions on competition (Agricultural raw material)

412

Aut. conc. opinion No. 11-A-11 of July 12, 2011 on contract negotiation methods in the livestock sector in a context of volatile agricultural commodity prices. (See also, infra, "Procedures" column, obs. C. Lemaire and S. Naudin) Opinion after opinion, the Competition Authority is continuing (...)

Michel Debroux Imputability – Duty to state reason: The General Court annuls the Commission’s decision concerning a cartel on bleaching chemicals in three judgements (Air liquide, Solvay, FMC Foret)

565

Trib. EU, 16 June 2011, L’Air liquide v. Commission, Case T-185/06, "Hydrogen peroxide and perborate". Trib. EU, 16 June 2011, Solvay v. Commission, Case T-186/06, "Hydrogen Peroxide and Perborate". Trib. EU, 16 June 2011, FMC Foret v Commission, Case T-191/06, "Hydrogen peroxide and (...)

Malgorzata Pujdak, Michel Debroux Interpretation of the de minimis notice: The Court of Cassation refers to the Court of Justice for a preliminary ruling asking whether an agreement that does not reach de minimis threshold can be pursued and sanctioned by the ANC on the ground of both EU and national competition law (Expedia)

1143

Cass. com, May 10, 2011, Expedia, No. 10-14881, "online travel sales sector". Is there a contradiction between the European Commission’s de minimis notice of 22 December 2001 and the case law of the Court on the concept of anti-competitive object? Can a national competition authority sanction (...)

Michel Debroux Exclusivity clauses: The General Court rejects the claim against the Commission’s decision ruling that under the exempting conditions of the collection system of recycling used packaging have not violated the principal of proportionality (Altstoff Recycling Austria)

770

GCEU, 22 March 2011, Alstoff Recycling Austria v. Commission, case T-419/03 Here is a cartel case that raises, under the surface, a few questions that are more in the area of abuse of dominant position. Alstoff Recycling Austria operates a nationwide collection and recovery system for (...)

Michel Debroux Accountability of the conduct: The General Court reduces the fines of certain members of the gas insulated switchgear market, on the basis of lack of proportionality and breach of the principle of equal treatment (Siemens, Areva)

870

Trib. EU, 3 March 2011, Siemens v Commission, Case T-110/07, "Gas Insulated Switchgear". Trib. UE, 3 March 2011, Areva and Others v Commission, cases T-117/07 and T-121/07, "Gas Insulated Switchgear". (See also, infra, "Procedures" column, obs. P. Cardonnel) In two separate judgements, the (...)

Michel Debroux Selective distribution - Ban of Internet sales: The Advocate general Mazák holds that a general and absolute ban on online sales of cosmetic products amounts to a restriction of competition by object rendering non-applicable Reg. N° 2790/1999 (Pierre Fabre Dermo-Cosmétique)

825

Opinion of AG Mazak, 3 March 2011, Pierre Fabre Dermo-Cosmétique, case C-439/09 In those conclusions, following a reference for a preliminary ruling from the Cour d’appel de Paris in the case of Pierre Fabre Dermo-Cosmétique, Advocate General Mazak takes the view that a general and absolute (...)

Michel Debroux Concept of agreement – Standard of proof: The Court of Justice dismisses an appeal, in considering that the GCEU has not committed a legal error in building upon the invoked documents of the Commission which constitute sufficient evidence of the existence of an agreement aiming to restraining parallel competition (Activision Blizzard Germany)

1047

CJEU, 10 February 2011, Activision Blizzard Germany (formerly CD-Contact Data) v Commission, case C-260/09 P Liabilities or assets? The Court of Justice had to rule on the nature of the evidence adduced by one of Nintendo’s exclusive distributors sanctioned by the European Commission in 2002 to (...)

Michel Debroux Fines setting - Scope of judicial review: The Advocate general Sharpston issues an opinion on factors to be taken into account in setting fines and assesses the scope of jurisdiction of the EU General Court (KME Germany)

1052

Opinion of AG Sharpston, 10 February 2011, KME Germany AG v. Commission, case C-272/09 P In his Opinion, Advocate General Sharpston reviews the criteria taken into account in determining the amount of a financial penalty and details the scope of the control to be exercised by the Union Court (...)

Michel Debroux Accountability: The Court of Justice rejects the General Court’s ruling for a lack of sufficient reasoning but rejects the appeal against the Commission’s decision and confirms the presumption of liability of the holding company when it holds – even indirectly –100% of its subsidiary’s capital (General Química)

1112

CJEU, 20 January 2011, General Química and Others v Commission, Case C-90/09 P Should this judgment be seen as an outline of a challenge - albeit modest - by the Court to one of the most criticised aspects of the case-law of recent years on the imputation of anti-competitive practices by a (...)

Michel Debroux Association of undertakings: The European Commission condemns the French National Order of Pharmacists (ONP) for price fixing and market foreclosure (French National Order of Pharmacists)

622

Eur. comm., dec. C(2010) 8952 final, 8 December 2010, "French National Order of Pharmacists", case COMP/39510 The European Commission has just published its decision of 8 December 2010, in which it condemned the Ordre National des Pharmaciens ("ONP") for various practices designed to restrict (...)

Michel Debroux Retail in the food sector: The French Competition Authority assesses the behaviour of major retailers and is of the opinion that a law may be necessary to remove barriers to entry (Retail in the food sector)

957

Aut. conc. opinion no. 10-A-26 of 7 December 2010 on affiliation contracts for independent shops and the terms and conditions for the acquisition of commercial land in the food distribution sector The competition situation in large-scale food retailing has rarely been deemed satisfactory in (...)

Michel Debroux Vertical collusion: The Paris Court of Appeal upholds the decision of the French Competition Authority that rejected a claim for vertical collusion aiming at the exclusion of a competitor (Euro Power Technology)

1135

[CA Paris, ch. 5-7, December 2, 2010, Euro Power Technology]; against Aut. conc., Dec. no. 10-D-14 of 16 April 2010 relating to practices implemented in the sector of the electrical valorisation of biogas This judgment only marginally deals with cartel issues, so it will be briefly commented (...)

Michel Debroux Public tender - Related undertakings : The Paris Court of Appeal confirms an exception to intra-group immunity when related companies answer separately to an invitation to tender, despite a specific context characterised by post-merger undertakings (Maquet ; operating tables sector)

1335

against Aut. conc., Dec. no. 10-D-04 of January 26, 2010 on practices implemented in the operating table sector It is well known that, in the field of anti-competitive practices, the immunity enjoyed by intra-group agreements is subject to an exception in French decision-making practice and (...)

Michel Debroux Res judicata - Imputability: The Advocate general Bot concludes to set aside the judgement of the Tribunal and the contested decision in the case of the extra alliage (ThyssenKrupp Nirosta)

945

Conclusions AG Bot, 26 October 2010, ThyssenKrupp Nirosta v Commission, case C-352/09 P The Advocate General has delivered his Opinion in the case of ThyssenKrup Nirosta (formerly ThyssenKrupp Stainless) v Commission. The present appeal against thejudgment of the General Court of 1 July 2009 (...)

Michel Debroux Call for tender - Exchange of information: The French Competition Authority fines collusion by suppliers in the automotive industry but takes into account their financial difficulties (Automotive industry)

984

Council Regulation (EC) No 10-D-35 of 15 December 2010 on practices in the supply of welding electrodes for automobile manufacturers Cases of consultation between competitors with a view to exchanging confidential information before responding to calls for tenders and allocating customers and (...)

Michel Debroux Concerted action in response to a call for tender: The Paris Court of Appeal confirms on all points the decision of the French Competition Authority which sanctions a concerted action during a call for tender procedure (Raffalli)

1097

CA Paris, ch 5-7, 16 September 2010, Raffalliagainst Aut. conc., Dec. no. 09-D-34 of 18 November 2009 relating to public works contracts for electricity and public lighting in Corsica On November 18, 2009, the Adlc sanctioned several companies established in Corsica for having consulted each (...)

Michel Debroux Fine - Role as a leader: The General Court essentially upholds the Commission decision but significantly reduces the amount of the fine imposed on the undertaking on the basis that its role as a leader of the cartel established by the Commission was not proved (Deltafina)

1073

Trib. EU, 8 September 2010, Deltafina v. Commission, Case T-29/05 In its decision ’Raw Tobacco - Spain’ of 20 October 2004 (COMP/C.38.238/B2), the Commission had heavily sanctioned Deltafina, giving it a leading role in the part of the cartel involving the first processing stage of raw tobacco. (...)

Guy Gras, Louis Vogel, Michel Debroux, Paolo Cesarini Conference - Reform of vertical distribution - Roundtable III : Legal categories: Selective or exclusive distribution, franchise... Where are the borders? (Paris, 27 May 2010)

4790

This third roundtable of the conference “Reform of vertical distribution”, Paris, 27 May 2010, is dedicated to the legal categories of the various forms of distribution. The first paper goes back over the legalistic and form-based approach that had characterised the Commission’s competition policy (...)

Michel Debroux Call for tender: The French Competition Authority exonerates several companies suspected to have agreed to response to a call for tender organised by EDF-GDF Service, evidence gathered during the inquiry were not sufficient (EDF-GDF)

1267

Aut. conc. dec. no. 10-D-26 of July 28, 2010 relating to practices identified on public network grouped works contracts awarded by the EDF-GDF Services purchasing platform in Montpellier This decision calls for little comment, but it is interesting, read in light of the Court of Appeal’s (...)

Michel Debroux Public tender procedure: The French Competition Authority sanctions a concerted action between competitors during a public tender procedure (Sector of the sanitary transport in Seine-Maritime)

1055

Aut. conc., Dec. n° 10-D-22 of 22 July 2010 relating to practices implemented in the health transport sector in Seine-Maritime Another case of consultation prior to the submission of responses to a call for tenders... And as is often the case, the facts are simple, even repetitive: a university (...)

Michel Debroux Exclusivity provisions: The French Competition Authority asserts that the terms of an exclusive partnership between the leader of bowling balls and the organizer of several world championships did not have anticompetitive effects, because of the existence of many alternatives (Boule Obut)

1386

Aut. conc. dec. no. 10-D-17 of 25 May 2010 on practices implemented on the market for competition pétanque boules Did the Authority fire or point? In any event, it has examined in detail the market for sporting events linked to the world of competitive pétanque, and in particular the exclusivity (...)

Michel Debroux Adoption of a standard: The General Court approves the Commission who’s rejected a complaint made against the conditions of adoption and the effects of a community standard in the cement industry (EMC Development)

1457

General Court, 12 May 2010, EMC Development v. Commission, Case T-432/05 By adopting a harmonised standard, has a professional association in the cement sector discriminated between the players in this sector? And by rejecting the complaint lodged by a player in that market, has the Commission (...)

Michel Debroux Estimates of convenience: The Paris Court of Appeal confirms the decision of the Authority and sanctions the estimates of convenience, but reduces the penalties for two companies in difficulty (Relocation of military personnel)

1719

CA Paris, ch. 5-7, 11 May 2010, Aaction Dem and others. v. Aut. conc., Dec. no. 09-D-19 of 10 June 2009 concerning practices relating to the relocation of military personnel under CCAT from the Army to Nancy Another tender agreement package. As is often the case, the facts were particularly, (...)

Michel Debroux Exclusive supply clause: The French Competition Authority rejects the suspicions of discrimination among franchisees made against a franchisor, and validates an exclusive supply clause (Hypromat)

1507

Aut. conc. dec. no. 10-D-12 of 15 April 2010 relating to practices implemented by Hypromat France SAS in the high-pressure car wash sector The Blue Elephant didn’t make much of a mistake... It will be remembered from this interesting decision of the Authority that it is very cautious in dealing (...)

Michel Debroux Reject of appeal: The Court of Cassation rejects the appeal brought against the ruling of the Paris Court of Appeal which had overturned a decision of the French competition authority, imposing sanctions for practices deemed to have anticompetitive effects on some market conditions not subject to competition (Association Familles rurales)

1425

Cass. com, 7 April 2010, Association Familles rurales et Ministre de l’économie, de l’industrie et de l’emploi, n° 09-13494 and 09-66021, aff. des consignes syndicales de dépassement des tarifs conventionnels par les médecins spécialistes de secteur 1 With this decision of April 7, 2010, the French (...)

Michel Debroux Condamnation - Boycott practices: The French Competition Authority imposes fines on the National union of ophtalmologists for boycott practices in the sector of optical products and glasses (Sector of optical products and glasses)

1692

Aut. conc. dec. no. 10-D-11 of March 24, 2010 on practices implemented in the eyeglass replacement sector In this case, the Competition Authority took a very negative view of the boycott practices implemented by the national union of ophthalmologists of France (SNOF) . This case is an (...)

Michel Debroux Role of the ceiling of penalties : The Paris Court of Appeal confirms the Competition Authority’s jurisdiction and qualification of facts, but significantly reduces the penalties, on grounds alleging a « moderate » impact on economy and a surprising interpretation of the role of the 10 % limit (AMD Sud-Ouest)

1464

CA Paris, ch. 5-7, 19 January 2010, AMD Sud-Ouest and others. v. Council, Dec. No. 08-D-32 of 16 December 2008 on practices in the steel products trading sector It is an understatement to say that this judgment has caused quite a stir, both because of the unprecedented scale of the reduction (...)

Michel Debroux Competence of the Competition Authority: The Paris Court of Appeal confirms that the Competition Authority had competence to sanction infringements committed before the expiry of the ECSC Treaty (AMD Sud-Ouest)

1309

CA Paris, ch. 5-7, 19 January 2010, AMD Sud-Ouest and others. v. Council, Dec. No. 08-D-32 of 16 December 2008 on practices in the steel products trading sector In a decision dated January 19, 2010, the Paris Court of Appeal confirmed the decision of the French Competition Council 08-D-32 of (...)

Michel Debroux Internet distribution - Preliminary ruling: The Paris Court of Appeal requests a preliminary ruling from the ECJ on the issue of whether the absolute ban on internet distribution, imposed by suppliers distributors, represents a hardcore vertical restraints (Pierre Fabre Dermo-cosmétiques)

3172

CA Paris, ch. 5-7, 29 October 2009, Pierre Fabre Dermo-cosmetics v. Council, Dec. No. 08-D-25 from 29 October 2008, distribution of cosmetic and personal hygiene products sold on pharmaceutical advice At a time when the European Commission is revising the rules applicable to vertical (...)

Michel Debroux Damages to the economy: The French supreme Court upholds the Paris Court of appeal and insists on the severe damages to the economy (Spie et Spie SCGPM "Lycées d’Ile-de-France")

1377

Cass. com, 13 October 2009, Spie et Spie SCGPM, n° 08-18224, aff. Lycées d’Ile-de-France The Court of Cassation has just dismissed the appeal against the judgment of the Court of Appeal of 3 July 2008 in the so-called "des Lycées d’Île-de-France" case. This decision should be read in conjunction (...)

Michel Debroux Long term exclusivity: The French Competition Authority imposes heavy fines to the French Football Federation and its commercial partner for abusive exclusivity clauses (Droits sportifs de la FFF)

1963

Aut. conc. dec. no. 09-D-31 of 30 September 2009 relating to practices implemented in the management and marketing of the sports rights of the French Football Federation (FFF) Red card for the FFF and its partner Sportfive. The picture is certainly easy, but it is obvious from the decision of (...)

Michel Debroux Infringements of subsidiaries: The ECJ rejects appeal in the chlorine (chloride) case and clarifies its Stora doctrine on the liability of mother companies for infringements by their subsidiaries (Akzo)

2794

ECJ, 10 September 2009, Akzo and Others v Commission, Case C-97/08 P It’s an understatement to say that this stop was expected. The first judgment handed down by the Court on the subject of the imputability to the parent company of offences committed by a subsidiary since its Stora judgment of (...)

Michel Debroux "Authorized network": The French Competition Authority delivers an opinion on the development of authorized network of healthcare providers, while explaining the conditions preserving their pro-competitive effects (Réseaux de soins agréés)

1717

Concordant Aut. opinion No. 09-A-46 of 9 September 2009 on the effects on competition of the development of approved care networks. Overall, the Authority, which has been asked for an opinion by the Minister of the Economy, has just issued a blank check on the practice of approving healthcare (...)

Michel Debroux Annulation of a CFI ruling : The ECJ partly annuls a CFI ruling for lack of mention in the statement of objections of the status of the parties found guilty of anticompetitive practices (Papierfabrik August Koehler)

2142

ECJ, 3 September 2009, Papierfabrik August Koehler AG and Others v Commission, cases C-322/07 P, C-327/07 P and C-338/07 P. Fundamental rights are not to be compromised, and their violation calls only for a sanction, the annulment of the flawed decision. This is, in essence, the main lesson of (...)

Michel Debroux Anticompetitive object: The CFI confirms most of the European Commission’s decisions, provides detailed explanations on the concepts of anticompetitive agreement and anticompetitive object and slightly reduces the fine (Automobiles Peugeot)

2765

CFI, 9 July 2009, Automobiles Peugeot S.A. and Peugeot Nederland NV v. Commission, Case T-450/05 This long and detailed judgment is in line with the judgments of the Court of First Instance and the Court of Justice in other cases involving practices restricting parallel exports of motor (...)

Michel Debroux Exclusive supply agreement: The Court of Cassation rejects the appeal brought in the Corsican cement insofar as it concerns anticompetitive agreements, but annuls the judgment with respect to the objection of abuse of collective dominance (Lafarge and Vicat)

2601

Cass. com, July 7, 2009, Lafarge and Vicat, n° 08-15609 and 08-16094 The Corsican cement saga has just reached its epilogue, at least in the part concerning the cartel grievances which led to the conviction of Lafarge and Vicat, as well as the GIE Groupement logistique ciments Haute-Corse on (...)

Michel Debroux Potentiality of anticompetitive object: The ECJ rules that a practice of exchange of information between competitors, even limited in scope, can have an anticompetitive object and that the causality presumption is a substantive rule, not a procedural rule (T-Mobile Netherlands)

3916

ECJ, 4 June 2009, T-Mobile Netherlands and Others v Raad van bestuur van de Nederlandse Mededingingsautoriteit, Case C-8/08 The Court has therefore followed the recommendations of Advocate General Julianne Kokott (presented in No 2-2009 of Concurrences) and adopted an extremely strict position (...)

Michel Debroux Guidelines on fines: The CFI confirms in three cases the fines imposed on companies involved in the copper industrial tubes cartel, on the basis of the former guidelines on fines (Wieland-Werke ; KME ; Outokumpu ; Luvata)

2029

CFI, 6 May 2009, Wieland-Werke AG v. Commission, Case T-116/04 CFI, 6 May 2009, Outokumpu Oyj and Luvata Oy v. Commission, Case T-122/04 CFI, 6 May 2009, KME Germany and Others v. Commission, Case T-127/04 Relatively little can be said of these three judgments delivered by the Tribunal more (...)

Michel Debroux Fine mitigating: The CFI reduces the amount of fines imposed on two companies ... and shows some indifference to the impact of antitrust compliance programmes (Itochou Corp. ; Nintendo ; CD Contact Data)

2068

CFI, 30 April 2009, CD Contact Data v. Commission, Case T-18/03. CFI, 30 April 2009, Itochou Corp. v Commission, Case T-12/03 CFI, 30 April 2009, Nintendo v Commission, Case T-13/03 What is the point of having compliance programs in place? This could be one of the conclusions to be drawn from (...)

Michel Debroux Rights of defense: The Advocate General Yves Bot suggests that the ECJ annuls the CFI judgment to the extent that the CFI did not draw all the consequences of the Commission’s violation of the undertaking’s rights of defense (Papierfabrik August Koehler)

2803

Opinion of AG Bot, 2.4.09, Papierfabrik August Koehler AG a.o. v. Commission, joined cases C-322/07 P, C-327/07 P and C-338/07 P The issue of the imputability of anti-competitive practices by a subsidiary to its parent company, as well as the consequences of the Commission’s policy of (...)

Michel Debroux Effect on competition: The Paris Court of Appeal annuls the French Competition Council decision having fined a doctors professional association for recommended tarifs (Union nationale des médecins spécialistes confédérés)

2497

CA Paris, 1st ch. H, 18 March 2009, Union nationale des médecins spécialistes confédérés e.a.v. Council, Dec. No. 08-D-06 of 2 April 2008, trade union instructions for the overrun of conventional tariffs by sector specialist doctors What is artificial is not systematically anti-competitive, the (...)

Michel Debroux Leniency: The Paris Court of Appeal confirms the second French Competition Council leniency decision and recalls the lmited conditions under which an undertaking may escape liability for participating in a anticompetitive meeting (National & international moving)

2595

CA Paris, 1st ch. H, 25 February 2009, Transeuro Desbordes Worldwide Relocations e.a.against Cons. conc., Dec. no. 07-D-48 of 18 December 2007, national and international moving sector The contested decision was, after the one relating to the cartel in the manufacture of wooden doors (Decision (...)

Michel Debroux Anticompetitive object: The Advocate General Julianne Kokott underlines the scope of the concept of anticompetitive object and distinguishes between the actual impact of a concerted practice and the capacity for that concerted practice to produce an anti-competitive impact (T-Mobile Netherlands BV)

3733

Conclusions AG Kokott, 19 February 2009, T-Mobile Netherlands BV and Others, Case C-8/08. What is an anti-competitive object? Can it be presumed that there is a causal link between a concerted action and the market behaviour of the undertakings which took part in it, even when the concerted (...)

Michel Debroux Mother company’s liability: The CFI limits the ability of a mother company to challenge its liability for anticompetitive practices of its subsidiaries (General Química)

3660

CFI, 18 December 2008, General Química and Others v Commission, Case T-85/06. Here is a new judgment delivered by the Court of First Instance on the imputation of the practices of a subsidiary to its parent company, an issue whose frequency before the Court of First Instance and the importance (...)

Michel Debroux Fine - Professional association: The ECJ rules that the fine imposed on a professional association can be levied on its members’ turnover, even if the association’s decisions are not binding on the members, if the latter played an active role in the infringement (Coop de France bétail et viandes, FNSEA)

2995

ECJ, 18 December 2008, Coop de France bétail et viandes, FNSEA and Others v Commission, cases C-101/07 P and C-110/07 P. On 18 December 2008, the Court of Justice put an end to the so-called "French beef" case, which had made headlines and had received considerable attention in agricultural (...)

Michel Debroux Repeat offence - Statute of limitation: The French Competition Council imposes record fines and sets a statute of limitation - 20 years - for repeated offence (Cartel in the sector of trading of steel products)

2814

Conc. conc. dec. no. 08-D-32 of 16 December 2008 on practices implemented in the steel products trading sector This is a record for the Competition Council, which has once again demonstrated the firmness it can show when faced with what it considers to be exceptionally serious practices. 575 (...)

Michel Debroux Intragroup immunity: The French Competition Council condemns coordinated offers submitted by companies belonging to the same group and does not apply the intragroup immunity of fine when the companies fail to disclose their link (SMAB et SALGI)

3684

Conc. conc. dec. no. 08-D-29 of 3 December 2008 relating to practices noted in the sector of public contracts for the maintenance of joinery, metalwork and locksmith’s trade Unfortunately, the facts are relatively standard: the DGCCRF carries out comparative analyses of twenty-three (...)

Michel Debroux Public tenders: The French Competition Council explains how the authors of tender offers should avoid limiting competition and, on a separate objection, condemns a "covering offer" (Granulats département d’Ille-et-Vilaine)

2479

Cons. conc. dec. n° 08-D-28 of 3 December 2008 relating to practices implemented by companies exploiting aggregates in the department of Ille-et-Vilaine Decisions sanctioning concerted practices in the context of calls for tenders follow one another with remarkable regularity and are often (...)

Michel Debroux Selective distribution - Internet: The French Competition Council challenges the restrictions imposed by the Pierre Fabre group on internet sales by its distribution network and orders to amend the contracts (Pierre Fabre)

3665

Const. conc. dec. no. 08-D-25 of 29 October 2008 on practices implemented in the distribution sector of cosmetic and personal hygiene products sold on pharmaceutical advice A year and a half after its decision 07-D-07 of March 8, 2007 at the end of which many cosmetics laboratories had (...)

Michel Debroux RPM: The French Competition Council fines a producer for resale price maintenance in the sector of livestock nutrition and obtains structural and behavioral commitments (Cie Financière ; Participation Roullier)

3303

Const. dec. no. 08-D-20 of October 1, 2008 relating to practices implemented by subsidiaries of Compagnie Financière et de Participation Roullier. Nothing escapes the piercing of the bloodhounds from the Competition Council, and it is not the cattle that placidly lick the large blocks of food (...)

Michel Debroux Reduction of capacities: The Advocate General Trstenjak holds that agreements between a processors organisation and its members which provide for the exit of some of them in order to reduce the production capacity are not a restriction of competition by object and recommends to the Irish Supreme Court to declare them compatible with Art. 81.1 EC (Beef Industry Development and Barry Brothers)

3044

ECJ, Opinion AG Trstenjak, 4 September 2008, Beef Industry Development Society and Barry Brothers, Case C-209/07 Must the concept of the anti-competitive object of an agreement be assessed restrictively and apply only to hardcore infringements or, on the contrary, must it be analysed in the (...)

Michel Debroux JV-Interlocutory measures: The French Competition Council considers possible that a JV and one of its parent companies agreed to allocate customers, but rejects the request for interim measures submitted by the other parent company (Moeller-Maersk)

3705

Conc. conc. dec. no. 08-D-19 of 31 July 2008 on a request for provisional measures by AP Moeller-Maersk "Settling accounts at OK Terminal": this could be the title under which to summarise the circumstances, which were unusual to say the least, that led to the referral of this case to the (...)

Michel Debroux Fine mitigating: The CFI upholds most of the Commission’s décision in the sorbates cartel, but states that the Commission failed to qualify leadership role and infringed the principle of good administration and equal treatment and therefore reduces the fine by € 25 M (Hoechst c/ Commission)

3200

CFI, 18 June 2008, Hoechst v. Commission, Case T-410/03, "Sorbates". This lengthy judgment belongs to the category of those which contain almost all the pleas in law which appear to be capable of being raised against a Commission decision imposing a fine under the former Leniency and Fines (...)

Michel Debroux Cartels: The European Commission publishes a decision of June 2008 and reaffirms its practice regarding cartels, especially with respect to the notion of single and continuous infringement and parental liability (Sodium Chlorate)

182

Eur. Comm., dec. C(2012) 1965 final of 11 June 2008, Sodium Chlorate, case COMP/38695 As a matter of form, the non-confidential version of the Commission’s Sodium Chlorate decision has been published four years after its adoption and, more importantly, almost one year after the Court’s judgment (...)

Michel Debroux Agriculture - Professional associations: The French Competition Council regards favorably the setting up of associations of producers, subject to conditions, but opposes any mechanism of price fixing and suggests alternative means to reduce price volatility (Opinion)

3422

Conc. conc. opinion n° 08-A-07 of 7 May 2008 on the economic organisation of the fruit and vegetable sector Opinion after opinion, the Council is continuing its educational work in the agricultural sector, which is slowly opening up to the lessons of competition law. In this case, it is the (...)

Michel Debroux Exclusive supply - Fines: The Paris Court of Appeal upholds most of the Competition Council decision sanctioning the practices of several cement manufacturers in Corsica, but significantly reduces fines imposed on two producers and annuls the decision with respect to two other producers (Lafarge Ciments)

3002

CA Paris, 1st ch. H, May 6, 2008, Lafarge Ciments SA and others.v. Council, Dec. No. 07-D-08 of 12 March 2007, "Ciment Corse". The judgment handed down by the Paris Court of Appeal is of interest both in the field of abuse of a dominant position, since it concerned a complaint of abuse of a (...)

Michel Debroux Medical Unions: The French Competition Council condemns a number of medical unions for instructions aiming at a coordinated increase in regulated tariffs (Sector 1 Doctors)

3648

Conc. conc. dec. 08-D-06 of 2 April 2008 relating to union instructions for sector 1 specialist doctors to exceed conventional tariffs Competition Council flies to the rescue of the social security deficit! We know to what extent the Council is concerned about education, especially when it (...)

Michel Debroux Drugs - Quotas imposed on wholesellers: The French Competition Council accepts undertakings that regulate the sector of medical products distribution (Pfizer - GlaxoSmithKline )

3569

Conc. conc. dec. no. 07-D-45 of December 13, 2007 on practices in the pharmaceutical distribution sector (Pfizer) Conc. conc. dec. no. 07-D-46 of December 13, 2007 on practices in the pharmaceutical distribution sector (GlaxoSmithKline) These two Board decisions, which are in line with (...)

Michel Debroux Attributability of the infringement: The CFI details the concept of single and continuous infringement in a matter of two blocks of similar agreements in two distinct geographical areas during two different periods and explains the concept of decisive influence on a subsidiary’s commercial policy (BASF - UCB ; Akzo Nobel)

5832

CFI, 12 December 2007, BASF and UCB v Commission, cases T-101/05 and T-111/05, Choline Chloride CFI, 12 December 2007, Akzo Nobel and Others v Commission, Case T-112/05, Choline chloride. In two judgments delivered on the same day, the Court of First Instance ruled on the actions brought by (...)

Michel Debroux Identical prices - Absence of agrement: The French Competition Council rejects alleged anticompetitive agreement between suppliers of small feeding bottles to networks of maternities by reversing the market analysis (Blédina, Nestlé, Sodilac, Nutricia-Milupa)

4468

Cons. conc. dec. no. 07-D-42 of 30 November 2007 relating to certain practices implemented by Blédina, Nestlé, Sodilac, Nutricia-Milupa and their professional union on the infant formula market. Here is a very interesting and subtle decision by the Council, which looked at the market for infant (...)

Michel Debroux Payment cards : The European Commission considers as anticompetitive a number of measures imposed by an association of banks as a condition to join the association, but does not impose penalties (Cartes bancaires)

3839

EC Comm, 17 October 2007, Groupement des cartes bancaires "CB", case COMP/D1/38.606 The Commission has recently published in full its Bank Cards Decision of 17 October 2007. This dense (180 pages) and complex decision brings to a close until further notice a particularly long investigation, (...)

Michel Debroux Fines: The Paris Court of Appeal reduces the amount of fines imposed for anticompetitive agreements, having regard to the size of the market and the financial situation of one of the companies (Railways works)

3834

CA Paris, 1st ch. H, October 2, 2007v. Council, Dec. No. 06-D-15Railway track laying and maintenance sector The reductions or - rare - increases by the Paris Court of Appeal of the pecuniary penalties imposed by the Competition Council are decidedly tricky to interpret. The Court ruled on the (...)

Michel Debroux Non-compete provision: The French Competition Council upholds most of several provisions contained in distribution contracts for motorcycles and imposes a modest fine to a post-contract non-compete provision (CNPA Motorcycles)

3714

Conc. conc. dec. no. 07-D-25 of 25 July 2007 relating to referrals from the CNPA against certain motorcycle manufacturers concerning the conditions of distribution of their products. Referred by the Conseil National des Professions de l’Automobile (CNPA), the Competition Council examined in (...)

Michel Debroux Resale Price Maintenance: The Paris Court of Appeal holds that RPM is not subject to a rule of reason, as opposed to US Supreme Court “Leegin” (Guerlain a. o.)

5018

CA Paris, 1st ch. H., June 26, 2007, Guerlain and others (Part. 1 ; Part. 2Paris Court of appeal (Cour d’appel de Paris, 1ère ch. Section H), 26 juin 2007, Guerlain a. o. v. Conseil de la concurrence, Case RG 2006/07821 (“Luxury perfumes distribution”)(P2)), v. Conc. Cons. 06-D-04"Luxury perfumery (...)

Michel Debroux Intra-group agreement: The French Competition Council dismisses the qualification of anticompetitive agreement between a group of companies and withing a professional association (Sector of film vouchers)

5078

More movies... We will briefly mention this decision by the Competition Council to dismiss the case, whose lessons for unilateral practices should also be highlighted. The company Loisi-chèques had referred to the Council practices allegedly committed by the company EuroPalaces and the Fédération (...)

Michel Debroux Drugs distribution: The Paris Court of Appeal upholds the “Pharma-Lab” decision and accepts remedies concerning quotas (Pharma-Lab; Distribution des médicaments)

4195

CA Paris, 1st ch. H, January 23, 2007, Pharma-Labv. Council, Dec. No. 05-D-72 of 20 December 2005, ’Parallel exports of medicinal products’. The conditions and limits under which pharmaceutical laboratories may impose certain restrictions on wholesaler-distributors, and in particular supply (...)

Michel Debroux Cinemas: The French Competition Council is concerned about competition problems raised by promotional practices in the movie sector and calls for third parties comments (Movies theaters sector)

3858

Conciliation Council, Procedural Communiqué of 27 December 2006, Cinema exhibition In 2000, the advent of subscription cards allowing "unlimited" access to cinema exhibitors’ networks had profoundly shaken the economy of the sector and provoked strong reactions from many film professionals. (...)

Michel Debroux Beef meat sector: The CFI upholds in substance the European Commission’s decision although it considers that the Commission did not provide appropriate motivation on one issue, and slightly reduces the fine on grounds of the exceptional circumstances of the case (FNCBV)

5201

CFI, 13 December 2006, FNCBV v. Commission, Joined Cases T-217/03 and T-245/03 The case is well known, and the Commission’s decision on which the appeal was based was the subject of much discussion in 2003. It will be briefly recalled that the main French cooperatives of beef producers, (...)

Michel Debroux Involvement in a cartel: The CFI upholds the European Commission’s decision in the Dutch industrial and medical gasses case, and specifies the strict conditions to fulfil in order for a participant to a cartel to successfully claim that it distanced itself (Westfalen Gassen Nederland)

4059

CFI, 5 December 2006, Westfalen Gassen Nederland v Commission, Case T-303/02. We have already underlined in this column, on the occasion of a commentary on the zinc phosphates judgment, the difficulty faced by any alleged member of a cartel who intends to withdraw from it (CFI, 29 November (...)

Michel Debroux Exchange of information: The ECJ contributes to the antitrust analysis of exchange of information between competitors, and clears the inter-bank systems of exchange of information on clients’ solvency (Asnef-Equifax c/ Ausbanc)

5744

ECJ, November 23, 2006, Asnef-Equifax v. Ausbanc, Case C-238/05 Within a few months, the old "John Deere" case law on the exchange of information between competitors will have seen a clear revival of interest in France, with several decisions, opinions and rulings commented on in these columns (...)

Michel Debroux Principle of proportionnality: The CFI dismisses the appeals brought against the Sodium Gluconate decision and details some principles applying to the setting of fines (Archer Daniels Midland c/ Commission)

4158

CFI, 27 September 2006, Archer Daniels Midland v. Commission, "Citric acid", Case T-59/02 CFI, 27 September 2006, Jungbunzlauer AG v. Commission, "Citric acid", Case T-43/02 As we have just seen, the judgments handed down by the CFI, which essentially concern the amount of the fines imposed by (...)

Michel Debroux Proportionality: The CFI dismisses the appeals brought against the Sodium Gluconate decision and details some principles applying to the setting of fines (Gluconate de sodium)

4289

CFI, 27 September 2006, Avebe v. Commission, "Sodium Gluconate", Case T-314/01 CFI, 27 September 2006, Roquette Frères v. Commission, "Sodium Gluconate", case T-322/01 CFI, 27 September 2006, Archer Daniels Midland v. Commission, "Sodium Gluconate", Case T-329/01 CFI, 27 September 2006, Akzo (...)

Michel Debroux Price fixing: The French Competition Council analyses contracts between suppliers and distributors in the sector of fair and sustainable trade and sets criteria for certification rules complying with competition law (Fair and Sustainable Trade)

4829

Le Conseil analyse le fonctionnement des contrats entre producteurs et distributeurs et indique les critères d’une certification valable au regard du droit de la concurrence Conc. conc. opinion n° 06-A-07 of 22 March 2006 concerning the examination, with regard to competition rules, of the (...)

Michel Debroux Fining guidelines - Leniency: AG Geelhoed clarifies the concept of spontaneous cooperation and on the duty to answer to requests for documents (Graphite Electrodes)

4330

Précisions sur la notion de coopération spontanée et sur l’obligation de répondre à des demandes de communication de documents In the graphite electrodes case, commented on in this review (Concurrences , n° 1-2004, Chronique Ententes, p. 51), Advocate General Geelhoed delivered two Opinion on 19 (...)

Michel Debroux Quotas: The French Competition Council rejects the complaints brought by independent exporters against quotas imposed by pharmaceutical companies (Exportations parallèles de médicaments)

4221

Exportations parallèles : Rejet des plaintes d’exportateurs de médicaments contre des laboratoires et des grossistes répartiteurs Conc. conc. dec. no. 05-D-72 of 20 December 2005 on practices implemented by various laboratories in the sector of parallel exports of medicines In this case, which (...)

Michel Debroux Turnover threshold: The CFI rules on how to assess the turnover for the assessment of the fine (Britannia Alloys & Chemicals, Union Pigments)

4247

Le TPI valide le choix par la Commission d’un chiffre d’affaires de référence pour la détermination de l’amende correspondant à la dernière année complète d’activité économique d’une des parties et précise la notion de retrait effectif d’une entente CFI, 29 November 2005, Britannia Alloys & Chemicals (...)

Michel Debroux Agency Agreement - Imputabilty: The CFI annuls most of the fine imposed by the European Commission and set up the principles governing imputability of the restrictive practices by a subsidiary to its mother company (DaimlerChrysler)

5172

Le Tribunal annule la majeure partie de l’amende infligée par la Commission à DaimlerChrysler au motif que ses agents doivent être considérés comme intégrés à l’entreprise, confirme l’existence d’une entente entre des concessionnaires et une filiale et encadre les principes d’imputabilité des pratiques (...)

Michel Debroux Oligopole - Public Tender: The French Competition Council inflicts maximum fine in an ologopolistic market (Transport public urbain de voyageurs)

4083

Le Conseil de la concurrence inflige la plus forte sanction possible à trois sociétés de transport public pour s’être concertées dans le cadre de nombreux marchés publics (Cons. conc., déc. n° 05-D-38 du 5 juillet 2005 relative à des pratiques mises en oeuvre sur le marché du transport public urbain de (...)

Michel Debroux Setting of fines: The CFI rejects most of the ground for annulment formed against Speciality Graphites the decision, but lowers the level of fines (Tokai Carbon)

3866

Utilisation par la Commission d’informations recueillies pendant la procédure administrative - Le TPI rejette l’essentiel des moyens formés contre la décision Graphites spéciaux de la Commission, mais diminue l’amende infligée à deux des entreprises en cause au motif que la Commission a incorrectement (...)

Michel Debroux Exclusive practices: The French Competition Council sanctions a geographic market sharing agreement, enforced via exclusive practices (Les Vosges)

4109

Le Conseil de la concurrence fait œuvre de pédagogie en sanctionnant un accord de partage géographique de marché ainsi que des pratiques d’exclusion à l’égard de membres d’un syndicat professionnel qui avaient voulu s’affranchir des restrictions résultant de ces pratiques Council Decision No. 05-D-14 (...)

Michel Debroux Press Association: The French Competition Council holds that the refusal of a press association to include free newspapers in its survey of measurement of audience has created the conditions of a potentially anticompetitive situation but accepts the undertakings settlements (EuroPQN)

3842

En refusant d’intégrer plusieurs quotidiens d’information générale gratuits dans les études mesurant l’audience de la presse quotidienne nationale, l’association EUROPQN a créé une situation potentiellement anticoncurrentielle, à laquelle il a été mis fin par des engagements proposés par EUROPQN et (...)

Michel Debroux Marketing campaign - Legitimate interests: The French Competition Council holds that the refusal by a company to advertise a marketing campaign adverse to the interests of a company related to it can be justified by the protection of legitimate interests (British Airways/France Rail Publicité-SNCF)

4027

Le refus opposé par un annonceur à la diffusion d’une campagne publicitaire allant à l’encontre des intérêts d’une société qui lui est liée contractuellement peut être justifié par la protection des intérêts légitimes de celle-ci. La faible part de marché détenue par l’annonceur sur le marché pertinent ne (...)

Marc van der Woude, Michel Debroux Sanction: The French Competition Council sanctions practices implemented by associations of cauliflowers producers to regulate prices and outputs (Cauliflowers producers)

4196

Condamnation des mesures des associations de producteurs et de leur comité économique visant à réglementer les prix et les débouchés Conc. conc. dec. no. 05-D-10, 15 March 2005 concerning restrictive practices implemented on the cauliflower market in Brittany, France. The agricultural sector (...)

Michel Debroux De minimis: The French Competition Council holds that the setting of resale prices are hard-core restrictions which cannot benefit from the de minimis rule (Studio 26)

4958

Des pratiques alléguées de prix imposés sont des restrictions caractérisées de concurrence qui échappent à la règle de minimis, mais pour être établies et sanctionnées, elles doivent avoir effectivement été mises en ?uvre et avoir fait l’objet d’un système de surveillance de la part du fournisseur Cons. (...)

Michel Debroux Minimis threshold: The Court of Appeal of Paris refuses to apply the de minimis threshold contained in the 25th of March 2004 Order in case of "manifest" restriction of competition (Bakery de la Marne)

5134

See the NCA’s decision: Dominique Ferré, Resale price maintenance: The French Competition council sanctions resale price maintenance and refers the case to the Prosecutor for criminal proceedings rules (Boulangerie de la Marne), Concurrences, N° 1-2004, n°26849, www.concurrences.com CA Paris, 1st (...)

Michel Debroux Notion of agreement - Burden of proof: The CFI explains the concept of agreement and applies the Bayer case-law to horizontal relationships (Bayerishe Hypo und Vereinsbank)

4799

Charge de la preuve et examen des arguments des requérants dans un arrêt rendu par défaut CFI, 14 October 2004, Bayerische Hypo und Vereinsbank v Commission, Case T-56/02. CFI, 14 October 2004, Dresdner Bank v Commission, Case T-44/02 CFI, 14 October 2004, Vereins- und Westbank v Commission, (...)

Michel Debroux Notion of economic activity: The CFI holds that Art 81 EC only applies to economic aspects of sports and that anti-doping rules relate only to the sportive aspect of this activity (Meca-Medina)

3867

Le TPICE précise que l’article 81 ne s’applique qu’aux aspects économiques de l’activité sportive et que les règles anti-dopage relèvent du volet purement sportif de cette activité CFI, 30 September 2004, Meca-Medina and Majcen v. Commission, Case T-313/02 Any economic regulation has a restrictive (...)

Claude Lazarus, Michel Debroux Potential restriction: The European Commission explains its analysis of potential restrictions of competition in the air transport sector (Air France/Alitalia)

5271

EC Comm, 7 April 2004, Air France/Alitalia Linee Aeree Italiana SpA, Case COMP/38.284/D2 Just days before the entry into force of Regulation 1/2003 of 16 December 2002 on the implementation of the competition rules laid down in Articles 81 and 82 of the Treaty (OJEC 4 January 2003 L 1/1), the (...)

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