McDermott Will & Emery (Brussels)

Philip Bentley

McDermott Will & Emery (Brussels)
Lawyer (Partner)

Philip Bentley focuses his practice principally on EU antitrust and EU anti-dumping, and also extends to related matters such as state aid, subsidies, customs, marketing authorizations (notably for genetically modified organisms (GMOs)) and judicial review litigation before the EU General Court and Court of Justice. For nearly four decades, Philip has experienced the significant evolution of competition and state aid law, the implementation of the European Commission’s ambitious 1992 program for the creation of the Single Internal Market, and the visionary enlargement of the scope of EU law brought about by the successive treaties of Maastricht, Amsterdam, Nice and Lisbon. He was involved in landmark court cases during this period, including William Cook, on the standing of a competitor to make a complaint about illegal state aid, Petrotub on zeroing in anti-dumping investigations, and Eurocoton on the obligation of the Council to state reasons for not acting on a commission proposal for trade defense action.

Distinctions

Linked authors

McDermott Will & Emery (Paris)
McDermott Will & Emery (Brussels)
McDermott Will & Emery (Brussels)

Articles

3925 Bulletin

Jacques Buhart, Mai Muto, Philip Bentley The EU Commission fines a clothing company for restricting retailers from online advertising and selling cross-border to consumers in other Member States (Guess)

126

On 17 December 2018, the EC announced its decision to fine the clothing and accessories company Guess EUR 39.821 million for restricting retailers from online advertising and selling cross-border to consumers in other Member States. By doing so the company was able to maintain artificially high (...)

Jacques Buhart, Mai Muto, Philip Bentley The EU Parliament and Council adopt a directive to empower the Member states’ Competition Authorities to be more effective enforcers and to ensure the proper functioning of the internal market (ECN +)

182

On 4 December 2018, the Council adopted the Directive 2019/1 to enable Member State competition authorities to be more effective enforcers (ECN+). This adoption followed an agreement reached with the European Parliament at first reading. In March 2017, the EC published a proposal for a new (...)

Jacques Buhart, Mai Muto, Philip Bentley The EU Parliament, the Council and the Commission agree on a framework for the screening of foreign direct investments on the grounds of security or public order (FDI)

116

EUROPEAN PARLIAMENT, COUNCIL AND EC PROPOSE EU FRAMEWORK FOR FOREIGN DIRECT INVESTMENT SCREENING On 20 November 2018, the European Parliament, the Council and the EC agreed on a framework for the screening of foreign direct investment (FDI) on grounds of security or public order. This new (...)

Jacques Buhart, Mai Muto, Philip Bentley The EU Court of Justice refers a case back to the General Court to reconsider the possibility of mitigating circumstances on the fine calculation (Infineon Technologies)

87

CJEU REFERS SMART CARD CHIPS CARTEL CASE BACK TO GCEU, DISMISSES PHILIPS APPEAL On 26 September 2018, the CJEU considered that the GCEU had not taken into account certain possibly mitigating circumstances—namely the relatively small number of Infineon’s unlawful contacts with other cartel (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU General Court denies video-on-demand distributors’ standing to appeal a Commission decision authorising a German cinema aid scheme (Netflix / Apple)

138

All State Aid decisions taken by the EC can be subject to an action for annulment. In practice, however, it has been very difficult for complainants to successfully bring admissible actions for annulment of EC decisions approving aid because of EU courts’ strict interpretation of the locus (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Court of Justice holds that the actual effects of infringement do not have to be taken into account as part of the fine calculation in abuse of dominance cases (Orange Polska)

65

On 25 July 2018 the CJEU dismissed an appeal by Orange Polska SA against a GCEU judgment upholding an EC decision that imposed a fine of more than EUR 127 million on Orange for abusing its dominant position. The CJEU confirmed that, as in the case of a cartel, the EC does not have to take (...)

Philip Bentley, Jacques Buhart, Mai Muto The French Economic and Finance minister authorises a merger in the food sector, after using his power of re-examination for the first time (Cofigéo / Agripole)

89

Article L. 430-7-1, II of the French Commercial Code provides that the French Minister of Economy and Finance has the power to re-examine a merger within 25 working days after receiving the French Competition Authority (FCA) decision, for reasons of public interest other than safeguarding (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU General Court annuls a fine imposed by the Commission on cartellists in the sea shrimp sector due to lack of reasoning (Stührk Delikatessen)

66

In this difficult case, the EC had to reduce the fines calculated for each of the cartel participants so as to remain within the unalterable limit of 10 per cent of total worldwide group turnover. The EC claimed that it had sought to treat the various cartel participants equally in making the (...)

Philip Bentley, Jacques Buhart, Mai Muto The Higher Regional Court of Frankfurt/Main, applying the preliminary ruling of the EU Court of Justice, finds that a luxury perfume provider can prohibit unauthorised distribution over third-party websites (Coty Germany)

162

This judgment of the Higher Regional Court of Frankfurt/Main of 12 July 2018 applying the preliminary ruling of the CJEU of 6 December 2017 in the case Coty Germany GmbH v Parfümerie Akzente GmbH will reassure manufacturers of luxury products that they can protect such products from unauthorised (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU General Court affirms the Commission’s finding that financial investors have parental liability for the acts of an indirect subsidiary involved in the power cables cartel (Goldman Sachs / EU Commission)

132

On 12 July 2018, by its judgment in Case T-419/14 The Goldman Sachs Group v Commission, the GCEU entirely dismissed the appeal brought by The Goldman Sachs Group, Inc., against an EC decision in Case AT. 39610 Power Cables, fining Goldman Sachs EUR 37.303 million for its parental liability (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Court of Justice clarifies jurisdiction in tortious claims and claims relating to acts of branches, which arise from competition infringements (Flylal-Lithuanian Airlines)

104

On 5 July 2018, the CJEU handed down a judgment in response to a request for a preliminary ruling from the Lithuanian Court of Appeal in which it provided welcome clarifications of the interpretation of Articles 5(3) and 5(5) of Regulation No 44/2001 (Brussels I Regulation). These articles (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Court of Justice rejects a cartel participant’s appeal concerning the inclusion of allegedly confidential information in the non-confidential version of the infringement decision (Nexans)

160

By order of 12 June 2018, the Vice President of the CJEU dismissed the appeal lodged by Nexans France SAS and Nexans SA (collectively, Nexans) against the order of the President of the GCEU of 12 July 2017. The latter rejected Nexans’s application for an interim injunction to prevent the EC from (...)

Philip Bentley, Jacques Buhart, Mai Muto The German Federal Court of Justice grants a claim for damages relating to a cement cartel by extending the time period in which limitation rules can be suspended (Grauzementkartell II)

114

This landmark judgment of the German Federal Court of Justice concerns an action for damages relating to the German cement cartel. However, the judgment has much wider implications and is relevant for damage claims relating to other cartel infringements. The Federal Court extended the temporal (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU General Court annuls the Commission’s rejection of an airline’s request for a waiver of pricing commitments, ordering that they be reviewed (Lufthansa)

130

Deutsche Lufthansa AG is a joint founder member of Star Alliance, the largest global airline alliance. In addition to the Star Alliance Agreement, Lufthansa concluded with Scandinavian Airlines System (SAS) a bilateral alliance agreement, a marketing and sales agreement, and a bilateral joint (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Commission imposes a record fine of 124.5M euros for gun-jumping in relation to a merger in the telecommunications sector (Altice / PT Portugal)

77

When drawing up an acquisition agreement in a transaction that will be notifiable to the EC for clearance under the EUMR, the acquirer must ensure that any veto or similar rights that it has prior to implementation of the transaction are strictly limited to that which is necessary to preserve (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Court of Justice clarifies the concept of a "competitive disadvantage" arising from discriminatory pricing by a dominant undertaking on a downstream market (MEO / Serviços de Communicações e multimedia)

92

The CJEU held that a finding of a “competitive disadvantage” as the result of discriminatory pricing by a dominant undertaking on a downstream market does not require demonstration of an actual and quantifiable deterioration of a customer’s competitive situation on that market. This notion (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Court of Justice finds that Member States are not required to extend a prohibition on extraditing their own nationals to citizens of other States involved in global cartels (Romano Pisciotti)

119

In its judgment of 10 April 2018, the CJEU decided that Germany did not infringe EU law by extraditing an Italian national to the United States. An EU Member State is not required to extend a prohibition on the extradition of its own nationals to all EU citizens, but before proceeding to (...)

Philip Bentley, Jacques Buhart, Mai Muto The Higher Regional Court of Hamburg, applying Coty, finds that a ban on selling products through online sales platforms can be justified if its objective is to preserve product image and ensure personal consultation with customers (Aloe2Go)

182

The Higher Regional Court of Hamburg had the opportunity to establish a position regarding potential restrictions of competition in selective distribution arising out of bans on selling products through eBay and similar platforms. The Higher Regional Court referred to recent case law of the (...)

Philip Bentley, Jacques Buhart, Mai Muto The Higher Regional Court of Düsseldorf finds that sellers of high quality cosmetics cannot invoke "exhaustion of rights" under the EU Trademark Regulation if they have not presented the products in a way which avoids impairment of the brand’s reputation (Kanebo)

104

The Higher Regional Court of Düsseldorf decided that neither online nor offline sellers can invoke exhaustion of rights under Article 15(1) of the EU trademark regulation if they sell high-quality, prestigious cosmetic products without appropriate presentation to avoid impairment of reputation. (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Court of Justice sets aside the General Court’s annulment of the Commission’s decision concerning state aid granted to a Danish bank (FIH)

74

When considering whether a measure constitutes State aid for the purposes of Article 107(1) TFEU and applying the well-established private operator principle, one should take into account both the private creditor test and that of the private investor depending on the nature of the transaction. (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU General Court confirms the Commission’s decision in refusing access to its files during a cartel proceeding in the financial sector (Edeka-Handelsgesellschaft)

85

This judgment arises out of an application by Edeka- Handelsgesellschaft Hessenring mbH (Edeka) for access to the EC’s decision and table of contents of the file in settlement proceedings concerning four banks involved in the Euro Interest Rate Derivatives (EIRD) cartel. The judgment illustrates (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU General Court annuls a Commission finding that state measures in favour of health insurance organisations did not constitute state aid, and holds that the economic nature of an activity is determined by the presence of operators seeking to make a profit (Dôvera Zdravotná Poist’ovña)

77

This State aid case gives interesting indications regarding the definition of an undertaking and the economic or non-economic nature of its activities. The GCEU pointed out that merely being in a position of competition on a given market does not determine the economic nature of an activity, (...)

Philip Bentley, Jacques Buhart, Mai Muto The EU Court of Justice clarifies the application of competition law to the pharmaceutical sector in relation to off-label use of medicine and the dissemination of misleading information about product characteristics (Hoffman-La Roche)

97

On 23 January 2018, the CJEU rendered its judgment in the case Hoffman-La Roche and Others v AGCM, providing clarification on important aspects of competition law in the pharmaceutical sector. The CJEU rendered its judgment pursuant to a request for a preliminary ruling by the Italian Council (...)

Philip Bentley, Jacques Buhart The EU Commission accepts commitments by 14 shipping liner companies to change their practices concerning announcements of intended price increases for containerised shipping services (Liner Shipping case)

33

EUROPEAN COMMISSION CHALLENGES PUBLIC PRICE ANNOUNCEMENTS BY SHIPPING LINER COMPANIES* On 7 July 2016, the European Commission adopted a decision accepting commitments by 14 shipping liner companies to change their practices concerning announcements of intended price increases for (...)

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

55

A NEW CONCEPT IN CARTEL FINING: "DIRECT EEA SALES THROUGH TRANSFORMED PRODUCTS"* On 9 July 2015, the Court of Justice of the European Union (CJEU) issued its judgment in InnoLux Corp. v Commission C-231/14P, confirming the existence of a new concept in cartel fining: “direct European Economic (...)

Philip Bentley, Wilko Van Weert The EU Court of Justice confirms that the maximum 10 per cent fine applies to non-infringing parent companies based exclusively on the subsidiary’s turnover in a cartel operating on the market for zips and other fasteners (YKK)

37

CJEU RULES MAXIMUM CARTEL FINE APPLIES ONLY TO INFRINGING SUBSIDIARY TURNOVER AND REDUCES FINE BY €17 MILLION* On 4 September 2014, the Court of Justice of the European Union (CJEU) confirmed that the maximum fine of 10 per cent of turnover imposed on the infringing subsidiary of a (...)

Philip Bentley, Jacques Buhart The EU General Court issues a provisional order suspending the EU Commission’s decision to communicate to the High Court of England a copy of a customer’s reply to the statement of objections in the gas insulates switchgear cartel (National Grid)

27

RELEASE OF CONFIDENTIAL CARTEL INFORMATION BY EUROPEAN COMMISSION TO ENGLISH HIGH COURT SUSPENDED* On 29 November 2012, the EU General Court (GC) issued a provisional order suspending the European Commission’s decision to communicate to the High Court of England and Wales a copy of Alstom’s (...)

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