September 2017

Anticompetitive practices

The Moldovan Competition Authority prosecutes currency exchange bureaus for fixing the exchange rates (Activ Prim / Bartolomeu / Dragotin Prim / Lavronix / Lozcoz)
University of Macau - Faculty of Law
On 28 September 2017 the Competition Council (CC) established the existence of the price fixing cartel on the market for in-cash currency exchange transactions on the basis of the high degree of coincidence of exchange rates applied by the undertakings concerned. Foreign exchange transactions (...)

The EU Commission fines several truck manufacturers for cartel (Scania)
DG COMP (Brussels)
Antitrust: Commission fines Scania €880 million for participating in trucks cartel* The European Commission has found that Scania broke EU antitrust rules. It colluded for 14 years with five other truck manufacturers on truck pricing and on passing on the costs of new technologies to meet (...)

The Turkish Competition Authority concludes its preliminary investigation into possible abusive pricing policies in the furnishing sector (Doğtaş Kelebek Mobilya / Yataş Yorgan ve Yatak)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
Introduction On January 9 2018 the Competition Board published a reasoned decision dated September 27 2017 (17-30/487-211) following its preliminary investigation into allegations by Doğtaş Kelebek Mobilya San ve Tic AŞ that Yataş Yorgan ve Yatak San ve Tic AŞ had violated Article 4 of Law 4054 on (...)

The Lithuanian Supreme Administrative Court upholds the Competition Authority’s decision concluding a bid rigging agreement in the public procurement for the purchase of software development work (UAB Ministerium / Nebūk briedis / VšĮ TV Europa)
Lithuanian Competition Authority (Vilnius)
Supreme Administrative Court of Lithuania upheld Competition Council’s decision on bid ridding* The Supreme Administrative Court of Lithuania (Court) upheld the Competition Council’s decision on two bid rigging agreements. On 5 November 2015 the Council found that UAB Ministerium, UAB Nebūk (...)

The EU Court of Justice Advocate General Saugmandsgaard Øe indicates that providing misleading information aimed at undermining the reputation of one drug to the benefit of another drug might constitute a restriction by object (Hoffmann-La Roche)
Liège University
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Liège University
On 21 September 2017 Advocate General Saugmandsgaard Øe (‘AG’) issued his opinion in F. Hoffmann-La Roche vs Autorità Garante della Concurrenza e del Mercato (AGCM). In his opinion the AG provides guidance to the Court of Justice of the European Union (‘CJEU’) on the various questions raised by the (...)

The Indian Competition Authority fines 10 companies for bid rigging in coal and sand transportation tenders (Western Coalfields / Coal Carriers..)
Vaish Associates Advocates (New Delhi)
CCI imposes penalty for bid-rigging in coal transportation auctions* The Competition Commission of India (’CCI’) vide order dated September 14, 2017 has imposed penalty of almost INR 12 Crore on 10 entities namely SSV Coal Carriers Pvt. Ltd (OP-1), Bimal Kumar Khandelwal (OP-2), Pravin Transport (...)

The UK Competition Authority announces the launch of a market investigation into investment consultancy services and fiduciary management services
Morgan Lewis (London)
On 14 September 2017, the Competition and Markets Authority (CMA) announced that, following a reference from the Financial Conduct Authority (FCA), it was launching a market investigation into investment consultancy services and fiduciary management services to and by institutional investors (...)

The US Court of Appeals for the Third Circuit affirms the District Court judgment for titanium dioxide purchaser on the grounds that plaintiff lacked sufficient evidence to allege a conspiracy to fix prices (Valspar / DuPont)
McDermott Will & Emery (Washington)
What Happened: On October 2, 2017, the US Court of Appeals for the Third Circuit unsealed its opinion in Valspar Corp. v. E.I. Du Pont De Nemours & Co., No. 16-1345 2017 WL 4364317 (3d Cir. Sept. 14, 2017) in which the court affirmed the district court’s grant of summary judgment for (...)

The US Court of Appeals for the Third Circuit raises the bar for plaintiffs for a price-fixing action by setting a “more likely than not” standard to evaluate circumstantial evidence (Valspar / DuPont de Nemours)
Hausfeld (San Francisco)
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Hausfeld (San Francisco)
In its recent decision in Valspar Corp. v. E.I. DuPont de Nemours & Co., the Third Circuit raised the bar for plaintiffs opposing summary judgment in antitrust cases by setting a “more likely than not” standard to evaluate circumstantial evidence—a standard the dissent called an “unworkable (...)

The French Supreme Court refers a case on online platform sales ban back to the Paris Court of Appeal without waiting for an upcoming ruling of the EU Court of Justice on a similar case (Caudalie / eNova)
Van Bael & Bellis (Brussels)
On 13 September 2017, the French Supreme Court ordered the Paris Court of Appeal to rehear a case for failing to sufficiently substantiate its finding that an obligation in Caudalie’s selective distribution system constituted a probable restriction of competition by object. In the selective (...)

The Indian Competition Authority reconsiders and again exonerates air transport association from accusations of anticompetitive agreements and price fixing (Air Cargo Agents Association of India / IATA International Air Transport Association)
Vaish Associates Advocates (New Delhi)
CCI dismisses allegations of cartelization against Air Cargo Agents Association of India* The Competition Commission of India (CCI) vide order dated 12.09.2017 has dismissed allegations of cartelization against the Air Cargo Agents Association of India. The Informant, the International Air (...)

The EU General Court reduces the fine after re-hearing the bathroom fixtures and fittings cartel case (Laufen Austria)
Van Bael & Bellis (Brussels)
On 12 September 2017, the General Court (“GC”) handed down its judgment on an appeal lodged by Laufen Austria, a bathroom equipment manufacturer, against a Commission decision in connection with the bathroom fixtures and fittings cartel case, which was referred back to it for determination by the (...)

The US Court of Appeals for the Eleventh Circuit considers a lawsuit by auto body shops against insurance companies who allegedly engaged in two tactics to depress the body shops’ rates for automobile repair (Quality Auto Painting Ctr. of Roselle / State Farm)
Hausfeld (Washington)
In the decade since the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, courts have struggled with how to deal with horizontal conspiracy allegations in antitrust cases in the absence of evidence of an explicit agreement among competitors—evidence that may be hard to come by without (...)

The Indian Competition Authority dismisses allegations of anticompetitive conduct against a sound system manufacturer and concludes the manufacturer’s mandatory training for its distributors is justified (Harman International)
Vaish Associates Advocates (New Delhi)
Competition Commission of India (CCI) dismisses allegations of anti-competitive conduct against Harman International (India) Pvt. Ltd* The CCI vide order dated September 6, 2017 has dismissed allegations of anti-competitive conduct against M/s. Harman International (India) Pvt. Ltd (‘OP’) for (...)

Unilateral Practices

The Cypriot Competition Authority sends a statement of objections to a chemical and consumer goods company suspected to have abused of its dominance (Henkel)
Commission for the Protection of Competition of the Republic of Cyprus (Nicosia)
The Commission for the Protection of Competition announces that it has notified Statements of Objections to Henkel AG & Co KGaA and its subsidiary GPM Henkel Ltd jointly and severally regarding a prima facie infringement of Section 6(1)(b) of the Protection of Competition Laws of 2008 and (...)

The EU Court of Justice AG Mengozzi takes a new look at the exhaustion of trademark rights and seems prepared to accept the erosion of such rights (Schweppes)
Van Bael & Bellis (Brussels)
On 12 September 2017, Advocate General Mengozzi (“AG”) delivered an opinion in the Schweppes case in the context of a request for a preliminary ruling to the Court of Justice of the European Union (“ECJ”) from a Spanish Court. In particular, the AG proposed to develop the case-law on the exhaustion (...)

The EU Court of Justice clarifies the concept of unfair price under article 102 TFEU (AKKA / LAA)
Covington & Burling (London)
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Covington & Burling (Brussels)
Welcome clarifications by the EU Court on the concept of excessive pricing* On the 14 September, the Court of Justice of the European Union provided detailed guidance on the concept of excessive pricing under Article 102 TFEU, in response to questions posed by the Latvian Supreme Court. In (...)

The EU Court of Justice delivers a ruling on excessive pricing in a case involving a copyright management association (AKKA / LAA)
Boğaziçi University (Istanbul)
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ACTECON (Istanbul)
Introduction The question of excessive pricing as an abusive practice has been notoriously complex and competition authorities refrain from interfering in such cases normally. One of the main reasons for non-intervention of the competition authorities in such cases is the difficulty in (...)

The EU Court of Justice accepts an alternative to the United Brands test to establish excessive pricing (AKKA / LAA)
Giannino SI (Monserrato)
On replying to the preliminary questions referred by the Supreme Court of Latvia (SCL), in AKKA v LAA the CJEU has accepted a methodology other than the two-limb United Brands test to establish an excessive pricing practice. The CJEU also clarifies the criteria to set the amount of the fine (...)

The Indian Competition Authority dismisses abuse of dominance allegations against state corporation in the market for procurement of bus chassis (Uttar Pradesh State Road Transport Corporation)
Vaish Associates Advocates (New Delhi)
CCI dismisses allegations of anti-competitive conduct against Uttar Pradesh State Road Transport Corporation* The CCI vide its order dated September 7, 2017 dismissed allegations of contravention of Section 3 and 4 by Uttar Pradesh State Road Transport Corporation (UPSRTC) (OP) by VE (...)

The EU Court of Justice quashes the 2014 judgment of the General Court that upheld a fine of €1.06 billion for an abuse of dominant position by implementing loyalty rebates based on exclusivity agreements (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On September 6, 2017 ,the Court of Justice of the European Union (CJEU) quashed the 2014 judgment of the General Court (GC) that upheld a fine of €1.06 billion ($1.5 billion) on Intel Corporation Inc. (Intel) for abusing a dominant market position by implementing loyalty rebates based on (...)

The EU Court of Justice refers back to the General Court a case for it to examine the factual and economic evidence and to establish whether the rebates at issue are capable of restricting competition (Intel)
Herbert Smith Freehills (London)
In its long awaited judgment on Intel’s appeal against the General Court’s ruling that its rebate scheme was inherently anticompetitive and that there was no need to consider the circumstances of the case, the Court of Justice of the European Union (CJEU) has today referred the case back to the (...)

The EU Court of Justice refers a case back to the General Court for re-examination (Intel)
Norton Rose Fulbright (Brussels)
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Norton Rose Fulbright (London)
Major victory for Intel as CJEU sends case back to General Court for re-examination* On 6 September, the EU’s highest court, the Court of Justice (CJEU), released its long-awaited decision in the Intel case, in which the Commission imposed a fine of €1.06 billion – at the time, the largest fine (...)

The EU Court of Justice modernizes abuse of dominance (Intel)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (London)
(“CJEU”) set aside General Court’s 2014 Intel judgment, upholding a European Commission (the “Commission”) decision fining Intel €1.06 billion for abuse of dominance through exclusivity rebates . The CJEU held that the General Court had erred in failing to examine all of Intel’s arguments calling (...)

The EU Court of Justice rules that exclusivity rebates cannot be presumed to be an abuse of dominance (Intel)
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (Berlin)
Exclusivity rebates are used in markets ranging from postal deliveries through ice cream to computer processors and are normally regarded as beneficial to consumers. However, when applied by dominant companies such rebates could potentially entrench an existing market position and have been (...)

The EU Court of Justice revisits forty years of case law on when a dominant company’s rebate scheme may be abusive (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Baker McKenzie (London)
In its ruling on the European Commission’s 500 page Intel decision, in a crisp 150 paragraphs, the EU Court of Justice (the Court) revisited forty years of jurisprudence on when a dominant company’s rebate scheme may be abusive. Though no final decision for Intel, the case marks a potentially (...)

The EU Court of Justice defines the conditions for the legality of discounts made by dominant companies (Intel)
Callol, Coca & Asociados (Madrid)
The European Court of Justice (ECJ) published its judgement in a highly expected case, largely due to the huge administrative fine of € 1,060 million set by the EC in 2009, but mostly because of its relevance in a very important area of commerce: the legal treatment of discounts by dominant (...)

The EU Court of Justice annuls the General Court ruling that upheld the fine imposed by the Commission for an abuse of dominance (Intel)
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Frankfurt)
What happened? The European Court of Justice ("ECJ") set aside a General Court ruling that had upheld a €1.06 billion fine imposed by the European Commission on Intel for abusing its dominant position in the market for x86 central processing units ("CPUs"). Background In its 2009 decision, (...)

The EU Court of Justice renders its judgment in a case regarding loyalty rebates granted by dominant companies (Intel)
Baker Botts (Brussels)
An alternative view on accuracy and administrability Introduction In its judgment in Intel of 6 September 2017, the Court of Justice of the European Union (“CJEU”) rejected the notion that particular loyalty rebates granted by a dominant company are subject to a per se illegality standard of (...)

The EU Court of Justice endorses an effects-based assessment of rebates (Intel)
White & Case (Brussels)
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White & Case (Brussels)
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White & Case (Brussels)
This article has been nominated for the 2018 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel that the European Commission ("Commission") cannot (...)

The EU Court of Justice reverses the General Court’s decision in an abuse of dominance case against a big tech company in the market for processors and rules that rebates should be judged under the rule of reason (Intel)
Compass Lexecon (Brussels)
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The Graduate Institute for International and Development Studies (Geneva)
Roundtable Discussion on the ECJ ruling in Intel* On 6 September 2017, the European Court of Justice (“ECJ”) issued a landmark judgment where it set aside the judgment of the General Court (“GC”) in the highly debated Intel matter. This judgment is of particular significance because it provides (...)

The EU Court of Justice issues landmark judgment on the legal treatment of fidelity rebates granted by dominant companies (Intel)
Van Bael & Bellis (Brussels)
On 6 September 2017, the Court of Justice of the European Union (“ECJ”) issued its long-awaited judgment in the Intel case (Case C-413/14 P), setting aside the General Court’s (“GC”) judgment. The GC must now re-assess the legality of the Commission’s decision in light of the ECJ’s ruling. Intel was (...)

The EU Court of Justice orders new assessment in a case of abuse of dominant position by a semi-conductor company granting loyalty rebates (Intel)
FTI Consulting (Brussels)
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Dechert (Paris)
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Dechert (Brussels)
EU Court Orders New Assessment of Intel’s Rebates The Court of Justice of the European Union (CJEU) has quashed a ruling by the EU’s General Court which had upheld the European Commission’s (EC) 2009 finding of abuse of dominance by Intel Corporation Inc. Intel was fined €1.06 billion, a record at (...)

Mergers

The US DoJ files a complaint seeking to partially unwind a merger between two producers of aviation fuel filtration products on the basis that it substantially lessens competition in the market (Clarcor / Parker-Hannifin)
Freshfields Bruckhaus Deringer (Washington)
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Freshfields Bruckhaus Deringer (Washington)
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Freshfields Bruckhaus Deringer (Washington)
On September 26, 2017 the Antitrust Division of the United States Department of Justice (DOJ) filed a complaint in the US District Court for the District of Delaware seeking to partially unwind a merger between two producers of aviation fuel filtration products. In its complaint, the DOJ (...)

The US FTC conditionally clears the transaction between two neurosurgical companies (Integra / Johnson & Johnson)
United Kingdom’s Competition Authority - CMA (London)
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McDermott Will & Emery (Washington)
What Happened: On February 14, 2017, Integra agreed to purchase Johnson & Johnson’s Codman neurosurgery business (excluding Codman’s neurovascular and drug deliver businesses) for $1.045 billion. Seven months later, on September 25, 2017, the Federal Trade Commission (FTC) agreed to clear the (...)

The Polish Competition Authority imposes a fine of more than EUR 78,000 on a consumer eggs producer for gun-jumping (Fermy Drobiu Woźniak)
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
In its decision of 19 September 2017, the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, hereinafter referred to as the “PCA”) fined Fermy Drobiu “Woźniak” sp. z o.o. (hereinafter referred to as the “FDW”) the amount of PLN 339,000.00 (approx. EUR 78,000.00) for failure (...)

The EU Court of Justice clarifies the application of the EU merger control rules to joint ventures (Austria Asphalt)
McDermott Will & Emery (Düsseldorf)
European Court of Justice clarifies application of European Union merger control rules to joint ventures* On 7 September 2017, the European Court of Justice issued a decision (Decision) on the interpretation of the European Union Merger Regulation (EUMR). The Decision clarifies the conditions (...)

The EU Court of Justice renders a judgement regarding the rules governing the notification of mergers resulting in the creation of joint ventures (Austria Asphalt)
Cleary Gottlieb Steen & Hamilton (Cologne)
On 7 September 2017, the European Court of Justice issued its preliminary ruling in Case C-248/16 Austria Asphalt. The judgment clarifies that a change from sole to joint control over an existing undertaking is a notifiable concentration under the Merger Regulation only if the resulting joint (...)

The EU Court of Justice decides EU merger control rules can only apply to joint control transactions if the resulting entity is a ‘full-function’ joint venture (Austria Asphalt)
Shearman & Sterling (London)
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Shearman & Sterling (London)
On September 7, 2017, the European Court of Justice (ECJ) decided that, where joint control is acquired over a new or existing undertaking (or parts of an undertaking), that transaction can only fall within the scope of the EU Merger Regulation (EUMR) where the resulting entity will be (...)

The EU Commission refers back to the French Competition Authority a merger in the waste management sector (La Poste / Suez groups)
French Competition Authority (Paris)
WASTE MANAGEMENT SECTOR* The European Commission has referred the review of the creation of a joint venture between the La Poste and Suez groups, in the waste management sector The European Commission referred the review of the creation of a joint venture between the La Poste and Suez groups. (...)

The Lithuanian Competition Authority fines a shipping company for implementing an unnotified merger (Achemos grupe)
Lithuanian Competition Authority (Vilnius)
UAB Koncernas Achemos Grupė fined for unnotified merger* The Competition Council found that UAB koncernas Achemos grupė implemented an unnotified merger by acquiring sole control of UAB Jūros vartai and AB KLAIPĖDOS LAIVŲ REMONTAS. For the infringement of the Law on Competition, the Council fined (...)

State Aid

The EU General Court confirms that public funding of an e-platform for procurement purposes does not constitute a State aid (Aanbestedingskalender)
College of Europe (Bruges)
Activities linked to State prerogatives Economic activities which cannot be separated from the exercise of public powers cease to be economic in nature. Introduction The dividing line between economic and non-economic activities is in a permanent state of flux. Although it is now clear that (...)

The EU General Court confirms that the Netherlands is not breaching State aid rules by funding an in-house e-procurement platform (Aanbestedingskalender BV and others)
University of Bristol - Law School
Funding of in-house entities, CPBs and risks of state aid, some thoughts re Aanbestedingskalender (T-138/15)* In its Judgment of 28 September 2017, Aanbestedingskalender & Others v Commission, T-138/15, EU:T:2017:675, the General Court (GC) rejected a complaint against a previous (...)

The EU Court of Justice finds that the Commission is obliged to consider the private investor test in State aid cases, even if it has not been raised by the Member State (Frucona Košice)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice rules that Polish renewable energy support scheme does not involve state resources (ENEA)
Van Bael & Bellis (Brussels)
On 13 September 2017, the Court of Justice of the European Union ( “ECJ”) issued its judgment on a request for a preliminary ruling from the Polish Supreme Court regarding the qualification of a national renewable energy support scheme as state aid (Case C-329/15, ENEA S.A. v Prezes Urzędu (...)

The EU Court of Justice finds that a Polish purchase obligation measure in the electricity sector does not involve state resources (ENEA)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU General Court finds that the amount of State aid necessary to induce a company to invest in an assisted region is the cost difference between the assisted region and the best alternative location (BMW)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Procedures

The Vietnam National Assembly publishes 5th draft of the new Competition Law
Baker McKenzie (Hô Chi Minh-Ville)
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Baker McKenzie (Hô Chi Minh-Ville)
On 15 September 2017, the 5th draft of the new Competition Law (the 5th Draft) was published on the National Assembly Office Portal for public review and comments. The 5th Draft is being reviewed by the Standing Committee of the National Assembly and is expected to be passed in May 2018. The (...)

The Regional Court of Dortmund holds that standard arbitration agreements apply to cartel damages actions if and when the alleged conduct coincides with a breach of contract deviating from the ECJ’s foreseeability theory established for jurisdiction clauses in its CDC judgement (C. / N.)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
1. Introduction The question of whether cartel damages claims can be tried in arbitration under so-called ’standard’ arbitration agreements – meaning not explicitly referencing tortious or even specifically antitrust damages claims – has recently been the subject of much debate. Regarding (...)

Regulatory

A research report finds that setting open technology standards through voluntary participation in Standards Development Organisations results in innovative and competitive industries
Compass Lexecon (Brussels)
Economic Impact of Technology Standards: The past and the road ahead - Key Findings* Our research has shown that industries based on open technology standards, agreed through voluntary participation in industry bodies, have an impressive record of innovation. We looked in particular at the (...)

The EU Commission proposes a new regulation that would allow the Commission and Member States to adopt rules for screening foreign direct investment (FDI)
Van Bael & Bellis (Brussels)
On 14 September 2017, the European Commission proposed a new regulation to allow the Commission and the Member States to adopt rules for screening foreign direct investment (“FDI”) in the EU that raises concerns on grounds of security or public order (the “Proposal”). The Proposal aims to (...)

The EU Commission unveils a set of proposals for the screening of foreign direct investments into the EU
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
On 13 September 2017 the EU Commission unveiled a set of proposals for the screening of foreign direct investments into the EU. Whereas the Commission recognises the benefits of foreign direct investment and its importance for growth, jobs and innovation in the EU, it also wants to be in a (...)

The Finnish, Swedish, Danish, Norwegian and Icelandic Competition Authorities agree to enhance their co-operation in antitrust investigations by signing a cooperation agreement
Bird & Bird (Helsinki)
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Bird & Bird (Helsinki)
The Finnish, Swedish, Danish, Norwegian and Icelandic competition authorities have agreed to enhance their co-operation in antitrust investigations by signing a cooperation agreement on 8 September 2017. Currently, Finland, Sweden and Denmark have already acceded to the new agreement by (...)

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