Latest Special issue: Nullity/Voidness

Anticompetitive practices

The Italian Supreme Court confirms the claim for nullity of a personal guarantee as being a violation of the antitrust regulation (ABI)
Studio Legale Scoccini E Associati (Rome)
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Studio Legale Scoccini E Associati (Rome)
By its decision No. 29810 of 12/12/2017, the Italian Supreme Court overruled the judgement of the Court of Appeal of Venice that had rejected the claim for nullity of a personal guarantee in violation of the antitrust regulation. The dispute submitted to the Court of Appeal of Venice - as a (...)

The EU General Court confirms that the nullity sanction of Article 101(2) TFEU does not apply to concerted practices (Artisjus)
Bird & Bird (Brussels)
Why does Article 101(2) TFEU not list concerted practices?* Article 101(2) TFEU states that agreements and decisions by associations of undertakings that contravene Article 101(1) TFEU are null and void. However, it is silent on the fate of concerted practices. Strikingly, apart from a (...)

The UK Appeal Tribunal of the Rugby Football Union rules that provisions for Primacy of Tenure with three clubs exemption rule constitute an infringement of Articles 101(1) and 102 TFEU (London Welsh / RFU)
Blackstone Chambers (London)
Competition law achieves fair play* The London Welsh decision provides a rare but telling example of competition law marching its way onto the field of professional sport. London Welsh won rugby union’s Championship in the 2011-12 season. This would, in ordinary circumstances, have entitled (...)

The Belgian Supreme Court upholds the severability of anticompetitive provisions in a distribution agreement (Bauer / Dubraco)
DG COMP (Brussels)
On June 28, 2012, the Belgian Supreme Court (Hof van Cassatie/Cour de Cassation) rendered a short judgment in a contractual dispute involving a distribution agreement entered into in 1993 by Bauer, a German manufacturer of compressors, and its Belgian distributor Dubraco. In essence, the (...)

The Belgian Supreme Court confirms lower courts’ rulings that appreciable affectation of competition and of trade between member states as required by Article 101 TFEU can be treated implicitly without failing to meet the required burden of proof (Fiat / Fortis Bank / TCI Auto Service)
Stibbe (Brussels)
I. The facts On 15 September 1993, an exclusive motor vehicle distribution agreement was signed between Fiat Group Automobiles Belgium NV and TCI Auto Service NV, as a result of which TCI was granted the exclusive distributorship for a number of towns. Fortis Bank NV gave a first call guarantee (...)

A Portuguese Court confirms a professional association training regulation constitutes a breach of competition rules (Ordem dos Técnicos Oficiais de Contas)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
I. Introduction The Portuguese Association of Chartered Accountants (“Ordem dos Técnicos Oficiais de Contas”) (ACA) judicially appealed to the Lisbon Commerce Court the national Competition Authority decision which applied a fine €114.654,10 based on an alleged illegal decision of the association, (...)

The US District Court of the Northern District of California rejects a breach of contract defence based on the illegality of the contract under the Robinson-Patman Act (Pet Food Express / Royal Canin)
Wolters Kluwer (Riverwoods)
Robinson-Patman Act Defense Rejected in Breach-of-Contract Case* Asserting a breach-of-contract defense based on the illegality of the contact under the Robinson-Patman Act appears to be as difficult as successfully alleging a Robinson-Patman Act claim itself. Earlier this week, the federal (...)

The Hungarian Metropolitan Court of Appeal rules on the validity of the agreements concluded by members of a horizontal cartel with their customers (Fruit contracts)
Oppenheim (Budapest)
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Oppenheim (Budapest)
In a landmark decision published in December 2010, the Court of Appeal of Budapest had the opportunity to rule on the important question of the validity of agreements concluded by members of a horizontal cartel with their customers (so-called “fruit contracts” or “Folgeverträge”) under Hungarian (...)

A Swedish Court of Appeal holds that the agreement whereby authors have entrusted the administration of their literary works to a collecting society constitutes the basis of an unlawful cooperation and thus is null and void (Mediearkivet)
Vinge (Stockholm)
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Cosmetics Europe (Brussels)
Introduction In two cases concerning the administration by a collecting society of literary works, the Stockholm District Court and, on appeal, the Court of Appeal, examined the agreements whereby authors had entrusted the administration of their literary works to a collecting society. It was (...)

A Danish Court finds royalty provision contrary to Section 6 of the Danish Competition Act and Article 101 TFEU (Pandora Production / Lise Aagaard Copenhagen)
Danish Competition and Consumer Authority (Copenhagen)
On 29 April 2010 the Danish Maritime and Commercial Court found that a provision in a license agreement according to which the licensee is required to pay royalty on sales even when the licensor’s IPR is not used was contrary to Article 101 TFEU and the equivalent provision under Danish law and (...)

A Dutch Court of Appeal rules that termination of distribution contracts by a supplier under pressure from competing distributors is a concerted practice (Batavus / Vriend)
Van Doorne (Amsterdam)
I. Introduction This judgment of the Court of Appeal of Leeuwarden (“the Court”) is the latest in a series of judgments in a long running dispute relating to the termination in 2001 by Batavus B.V. (“Batavus”), a bicycle manufacturer, of its long term business relations with a retailer, Vriend’s (...)

A Dutch Court rules on the anticompetitive effects of an obligation to offer a supermarket for sale in case of termination of a franchise agreement in the large retail distribution sector (Prisma)
European Commission - DG HR (Brussels)
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European Court of Justice (Luxembourg)
The present case was concerned with the restrictive effects, under competition law, of contractual conditions surrounding the ending of a franchise agreement in the supermarket sector. The facts of the case were the following. In 1989, Prisma, the legal successor of Flevozoom Vastgoed B.V., (...)

The Court of Appeal of Pau declares void a commissioning agreement containing a mutual exclusivity obligation on the basis of Art. 81 EC (Prim’Co)
Juliette Goyer Avocat (Paris)
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French Competition Authority (Paris)
In a case dated 28 August 2007, the Court of Appeal of the city of Pau confirmed a judgment by the Tribunal de Grande Instance of Mont de Marsan in which the first judge annulled a Commissioning contract for violation of Article L. 420-1 of the French Commercial Code, the French equivalent of (...)

The Higher Regional Court of Düsseldorf finds an exclusive purchase obligation in breach of Art. 81 EC and replaces a void non-compete obligation in a franchise agreement (The Body Shop)
Blomstein (Berlin)
Background The cosmetics chain The Body Shop (TBS) employs two different types of distribution channels in Germany: On the one hand, it holds a number of proprietary retail outlets and, on the other hand, it distributes its products through a franchise system. Under the franchise system the (...)

The Slovenian Competition Authority declares null and void decisions of four major banks introducing a new ATM fee (Nova Ljubljanska banka / Banka Celje / Nova KBM / Abaka Vipa)
Fatur Law Firm (Ljubljana)
This case started in May 2006, when the Slovenian Competition Authority on the basis of information from the media and its statutory duty started the proceedings on finding whether decisions of four major Slovenian banks on introduction of new ATM fee for withdrawing cash to their retail (...)

A Dutch Court decides, in an interlocutory proceeding, that the nullity of a price-fixing clause brings along the nullity of the franchise agreement as a whole, including its non-compete clause (Make It Easy)
European Commission - DG HR (Brussels)
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European Court of Justice (Luxembourg)
Several franchise agreements were concluded between Make It Easy B.V. and Make It Easy Reality B.V. (hereafter the franchisers) on the one hand, and Make it Easy Gelderland V.O.F as well as other undertakings (hereafter the franchisees), on the other. According to these franchise agreements, (...)

The Maltese Commission for Fair Trading strikes down trade restrictive clauses in an exclusive poultry supply agreement (Buxon Poultry / Poultry Cooperative and Abela)
Sciberras & Lia (Valletta)
Buxon Poultry Limited requested the Court of Magistrates (Malta) to find defendants Koperattiva tat-Tjur Limited (Poultry Cooperative Limited) and Emmanuel Abela liable in solidum in favour of claimant to pay a penalty of LM5,000. Claimant alleged that said penalty was due as a result of (...)

The Slovenian Competition Authority declares null and void a decision of a bank association since it restricts competition on market for purchases payable by credit installments at the point of sale (Bank Association of Slovenia)
Fatur Law Firm (Ljubljana)
This case started in May 2005, when the Slovenian Competition Authority on the basis of its statutory duty started the proceedings on finding whether the decision of the Bank Association of Slovenia (“BAS”) on introduction of new joint banking product - BankKredit, represents restrictive (...)

The Madrid Commercial Court declares null and void an exclusive purchasing agreement on the basis of Art. 81.1 EC (El Mareny / Repsol)
London School of Economics
Factual background The present judgment is a new chapter of a lengthy saga concerning agreements signed between petrol distributors and Repsol Comercial de Productos Petrolíferos, S.A. (hereinafter, “Repsol CPP”), a subsidiary of the former monopoly in the Spanish petrol sector. This saga has (...)

The Slovenian Competition Authority declares null and void certain decisions of association of natural health spas decided together with the State having found them anticompetitive (ASNHS)
Fatur Law Firm (Ljubljana)
Zdravilisce Lasko (hereinafter, “Lasko”), a company, whose main business activity is tourism and health spa services, lodged on 23 September 2005 a complaint before the Slovenian Competition Authority against the Skupnost slovenskih naravnih zdravilisc(“the ASNHS”), a business association of 13 (...)

The Madrid Commercial Court finds a distribution agreement to be null and void and decides that the claimant is not entitled to recover the sums paid by virtue of a contract (Aloyas / Repsol)
London School of Economics
Repsol Comercial de Productos Petrolíferos, S.A. (hereinafter, “Repsol”) and Estación de Servicio Aloyas, S.L., S.A. (“Aloyas”) concluded on 14 March 1995 a 10-year contract concerning the distribution of oil products. The parties agreed that the contract was an agency one. The term “agent” was even (...)

A Dutch Court hearing an application for interim relief declares a selective distribution agreement contrary to Art. 81.1 EC and therefore void (Polar / Walstock)
European Commission - DG HR (Brussels)
Polar is a producer of a range of heart rate monitors and had, for many years,in accordance with an oral distribution agreement, been supplying Walstock, a retailer of sport products. Polar decided, however, to change its distribution policy by distinguishing several range of heart rate (...)

The Swedish Supreme Court declares that a concerted practice cannot be subject to nullity under section 7 of the [former] Swedish Competition Act (Boliden Mineral Aktiebolag / AB Fortum Värme samägt med Stockholms stad)
Vinge (Stockholm)
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Svea hovrätt (Swedish courts)
Background In December 1992, Boliden Mineral Aktiebolag (“Boliden”) concluded an agreement with Korsnäs Aktiebolag (“Korsnäs”), in which Boliden undertook to purchase its entire requirement of electricity for a mining facility. A standard form agreement was attached to the aforementioned agreement. (...)

A Spanish jurisdiction holds that the application of EU law would only be pertinent in case where the agreement is deemed “non-genuine” agency one (La Safor / Compañía Logística de Hidrocarburos)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Automoción y Servicion La Safor, S.L. (“La Safor”) concluded in March 1990 a number of contracts related to the distribution of oil products. The contractual relationship included an agency agreement as well as a (...)

The Luxembourg District Court holds that an agreement between a petrol company and a petrol station is an agency agreement outside the scope of the prohibition of cartels (Aral / Koepfler)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
Case Koepfler s.à r.l. (“Koepfler”) operated on an independent basis one of the petrol stations of Aral Luxembourg S.A. (“Aral”), a subsidiary of the German petrol group Aral. Aral and Koepfler had concluded an agency agreement in this respect in 1984. Pursuant to this agreement Koepfler had to (...)

A Luxembourg Commercial Court finds several clauses in a franchising agreement to be anticompetitive and null yet upholds the rest of the agreement (Univers du Cuir Belgique / Cuir Center Luxembourg)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
The undertaking Univers du Cuir Belgique (“UCB”) has taken over the franchising agreement that Belgian Comfort Company (“BCC”) had as a franchisor with Cuir Center Luxembourg (“CCL”), franchisee. UCB noticed that CCL did not respect the non-compete obligations imposed on it by the agreement and (...)

Unilateral Practices

The Drammen District Court dismisses a counter-claim against a subsidiary of the incumbent railway operator for abusing its dominant position (CargoNet / CargoLink)
BA-HR (Oslo)
In a judgment handed down on 24 June 2011, the Drammen District Court dismissed a counter-claim entered by railway operator CargoLink AS (Cargolink) against fellow operator CargoNet AS (CargoNet). Cargolink alleged that it had suffered economic losses as a result of CargoNet‘s abuse of (...)

The UK High Court of Justice rules that, although Art. 82 EC does not contain a declaration of nullity equivalent to Art. 81 EC, the effect are the same (English Welsh & Scottish Railway / E.ON)
King’s College (London)
This note considers antitrust private enforcement in the UK; it should be read together with other cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) and two follow-on damages’ claims which have been lodged before the specialist Competition Appeal Tribunal (...)

State Aid

The Administrative Court of Clermont-Ferrand awards compensation for losses caused by nullity of contract resulting from authorities’ failure to consider State aid rules (Fontanille)
Sheppard Mullin (Brussels)
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Maersk (Copenhagen)
Brief description of the facts and legal issues A law of 1996 enabled the French government to sign agreements with undertakings in the clothing, leather, shoe and textile sectors regarding a reduction in working time, in order to avoid redundancies. In return, the French government granted an (...)

Procedures

The High Court of Delhi rules that proceedings and orders passed by the Competition Commission of India cannot be invalidated by way of constitutional defects (Cadd)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
In April 2019, a Division Bench of the High Court of Delhi had declared two provisions of the Competition Act, 2002 unconstitutional and void. All other provisions of the Competition Act were held to be valid subject to a number of orders including that “the Central Government shall take (...)

The Swedish Supreme Court rejects a claim for annulment of an arbitration award without assessing the formal matter of the legislation on which the award was based (Systembolaget / Absolut)
Vinge (Stockholm)
The Swedish Supreme Court rejected, on 17 June 2015, a claim for annulment of an arbitration award. The claimant, Systembolaget Aktiebolag (“Systembolaget”) contended that the arbitration panel had misinterpreted the competition rule and that the legal issue of the case did not fall within the (...)

The Florence Tribunal rules out the abusive nature of a lease agreement provision (Il Giaggiolo)
Cleary Gottlieb Steen & Hamilton (Rome)
On 27 January 2014, the Florence Tribunal rejected the appeal that Il Giaggiolo S.r.l. (“Giaggiolo”) brought against a payment order that the Tribunal issued against Giaggiolo, thereby enforcing a clause of a lease agreement that the appellant claimed to be null and void for an alleged breach of (...)

The Spanish National Court annuls a resolution imposing a fine, on the grounds that the duration of the investigation was excessive (UAHE)
Baker McKenzie (Madrid)
The Spanish National Court (Audiencia Nacional, "AN") passed a judgment on 23 December 2013 annulling the Resolution of the Spanish National Competition Commission (Comisión Nacional de la Competencia, "CNC") of 14 June 2012 that held that the Unión de Almacenistas de Hierros de España ("UAHE", (...)

The English High Court rules that competition law cannot provide a defence to a borrower in an action by a bank to enforce its rights under a facility agreement (Deutsche Bank / Unitech Global)
Simmons & Simmons (London)
In a significant judgment that could have had “vast” consequences for financial transactions worldwide based on LIBOR, an English High Court Judge has refused to allow defences based on the competition rules to be introduced into the pleadings in an action brought by a LIBOR panel bank to enforce (...)

The Spanish Supreme Court validates the seizure of documents protected by legal privilege and those beyond the scope of the inspection order (STANPA)
Lonza (Basel)
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Cuatrecasas, Goncalves Pereira (Barcelone)
On April 27, 2012, the Spanish Supreme Court issued judgment number 6552/2009 on the appeals submitted by the Asociación Nacional de Perfumería y Cosmética (“STANPA”) and the Spanish Competition Authority (“CNC”) against the judgment of the Audiencia Nacional (Spanish Court of Appeal, “AN”) of (...)

The Tokyo District Court awards damages to the Japanese State in a bid-rigging case concerning the supply of jet fuel (Kosumo Sekiyu)
DG COMP (Brussels)
I. Introduction In a judgment of 27 June 2011, the Tokyo District Court ordered nine oil companies to pay a total of 8.4 billion yen (104 million dollars at the time) to the Japanese State in restitution. The oil companies had violated the Japanese Antimonopoly Act by engaging in bid-rigging (...)

A Dutch Court of Appeal refuses to order the execution of an award adopted by an American arbitration panel for breach of a licensing agreement, on the grounds that it violates Art. 81.1 EC and that it is contrary to the public policy (Marketing Displays International / VR)
European Commission - DG HR (Brussels)
The companies concerned, Marketing Displays International (“MDI”) and VR, established in the United States of America and in The Netherlands respectively, are both active in the manufacture and marketing of bill boards. On 7 September 1990, MDI and VR concluded a licensing agreement, by which MDI (...)

The Spanish Supreme Court holds that a single-branding agreement is null and void pursuant to Art. 81.2 EC thus applying EC competition law for the first time (Rafael / DISA and Prodalca España)
London School of Economics
In February 1990 D. Rafael and DISA concluded a contract concerning the operation of a petrol station on premises owned by the latter and let to the former. DISA was obliged by virtue of the single-branding agreement to provide D. Rafael with petrol and other products, such as lubricants. As (...)

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