Direct effect

Anticompetitive practices

The COMESA Court of Justice rules that a merger filing notification to COMESA’s Competition Commission will remove the need for filings to national authorities in the Member State (Polytol)
Norton Rose Fulbright (Brussels)
British Competition Authority - CMA (London)
In much the same way that, within the European Union, a merger filing (notification) to the European Commission removes the need for filings to national competition authorities in the EU Member States, so too the COMESA. Court of Justice has ruled that a merger filing (notification) to COMESA’s (...)

The US Court of Appeals for the 7th Circuit potentially expands the extraterritorial reach of the U.S. antitrust laws (Minn-Chem / Agrium)
Davis Polk & Wardwell (New York)
Davis Polk & Wardwell (New York)
Gibson Dunn (New York)
Introduction The U.S. Court of Appeals for the Seventh Circuit (the “Court”) recently potentially expanded the extraterritorial reach of the U.S. antitrust laws. Its unanimous en banc decision in Minn-Chem, Inc. v. Agrium Inc. (7th Cir. 2012) may make it easier for the Department of Justice (...)

The US Court of Appeals for the 7th Circuit takes broad view of the foreign trade antitrust improvements Act (Minn-Chem / Agrium)
Paul Hastings (Washington)
Paul Hastings (Orange County)
Paul Hastings (Orange County)
Overview In a much-awaited decision, the Seventh Circuit has taken a broad view of the ability of U.S. courts to hear antitrust cases concerning alleged foreign cartel activity that plaintiffs contend has effects in the U.S. The Court’s ruling reviving a cartel case in the potash industry is (...)

The UK Competition Appeal Tribunal publishes an appeal by mobile operator challenging UK telecoms and media regulator’s refusal to allow 3G services deployment (O2, OFCOM)
Squire Patton Boggs (London)
London School of Economics
Jones Day (London)
On 26 May 2010, the UK’s Competition Appeal Tribunal published an appeal by mobile operator O2 against the Office of Communications (OFCOM), the UK telecoms and media regulator, challenging OFCOM‘s refusal to allow deployment of 3G services in 900 Mhz frequencies. In a case likely to have EU-wide (...)

The Bulgarian Supreme Administrative Court quashes an NCA decision applying Art. 3.1.g and 10 in conjunction with Art. 81 EC on grounds of separation of powers and national procedural autonomy (Chamber of the design engineers)
Kinstellar (Sofia)
The Bulgarian Supreme Administrative Court (the “SAC”) annulled the first decision of the Bulgarian Commission for the Protection of Competition (the “CPC”) declaring domestic statutory provisions incompatible with Articles 3(1)(g) and 10 in conjunction with Article 81 of the EC Treaty and that (...)

The Bulgarian Supreme Administrative Court upholds a NCA decision evoking Art. 81.1 and 3 EC for the first time (Association of the Bulgarian insurance companies and Others - “Civil liability insurance for car drivers”)
Kinstellar (Sofia)
Parts of this article feature in another publication of the author on the same matter for e-Competition. See : Dessislava Fessenko, The Bulgarian competition authority applies for the first time Art. 81.1 EC and sanctions 14 insurance companies for fixing minimum levels (Association of the (...)

The Spanish Supreme Court firmly protects price competition in the liberal professions and gives a controversial view on the interaction between EC and national competition Law (Ricardo)
European Court of Justice (Luxembourg)
Garrigues (Brussels)
Introduction On 4 November 2008, the Spanish Tribunal Supremo (Supreme Court) handed down a landmark ruling in case 5837/2005, Ricardo v. Consejo General de la Abogacía. This case looks set to be a cornerstone of Spanish competition law for years to come. The judgment was delivered by the (...)

The Luxembourg Administrative Tribunal upholds fines and periodic penalty payments imposed by the Competition Council (”House of Justice" case)
Moyse Bleser (Luxembourg)
Post Luxembourg
Background By a decision of 30 April 2007 (the "Decision") the Competition Council (the "Council") imposed fines and periodic penalty payments on three companies which had refused to submit appropriate information to the Competition Inspectorate (the "Inspectorate") in the course of a cartel (...)

The Luxembourg Competition Council imposes fines for the first time during an investigation in a cartel case ("House of justice" case)
Moyse Bleser (Luxembourg)
Herbert Smith Freehills (Berlin)
I. Introduction In the course of a cartel investigation carried out by the Competition Inspectorate (Inspection de la concurrence) (the “Inspectorate”), the addressee of the decision refused to submit accurate information to the Inspectorate, which, in reaction, adopted a formal request by way (...)

The Paris Court of appeal widens the possibilities for car manufacturers to fight against illegal parallel imports (Peugeot-SPEA-CNPA)
Lni avocats (Paris)
In April and August 1995, a European Automobile Association, the Syndicat des professionnels européens de l’automobile (SPEA), had referred a matter to the French Competition Council regarding practices implemented in the automobile distribution sector by two major French car manufacturers (...)


The Czech Regional Court of Brno confirms Competition Authority’s first decision directly applying EC competition law (Cesky Telecom)
Czech Ministry of Justice (Prague)
Czech Ministry of Justice (Prague)
By a judgement of 26 September 2006, the Regional Court in Brno confirmed the decisions adopted by the Office for the Protection of Competition and (on administrative appeal) by its President in which the dominant fixed telephony operator, Èeský Telecom (“ÈTc”), was found to have infringed article (...)

The French Competition Authority orders interim measures to address competition concerns in the public radio broadcasting sector (TDF)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence observes the end of TDF’s monopoly on broadcasting programmes for Radio France and imposes interim measures.* In a decision dated 1st December 2003, the Conseil de la concurrence (...)

The European Commission adopts decisions not to act on complaints concerning alleged infringements of the ECSC Treaty that occurred in the past (British Coal Corporation, National Association of Licensed Opencast Operators)
DG COMP (Brussels)
"The ECSC Treaty allows the Commission only to deal with infringements having a prospective effect"* The Commission adopted, on 27 April 1998 and on 28 July 1998, decisions not to act on complaints concerning alleged infringements of the ECSC Treaty that occurred in the past. THE COMPLAINTS (...)

The Czech Constitutional Court declares that, in the period preceding the accession of the Czech Republic to the EU, the rights guaranteed by the Constitution were not infringed by the Czech competition authorities basing their interpretation of Czech competition law on the corresponding EC rules (Skoda Auto)
Czech Ministry of Justice (Prague)
Czech Ministry of Justice (Prague)
The decision of the Ministry for Competition (the predecessor of the Czech NCA) in the Škoda Auto case, confirmed on constitutional complaint by the Constitutional Court in its judgement rendered on 29 May 1997, is one of the oldest and at the same time most controversial cases of application of (...)

State Aids

German State aid private enforcement: The problem of access to the Courts
German Ministry for Science, Economics, and Transport (Kiel)
1. General considerations State aid is prohibited - art. 87 EC, now art. 107 TFEU. This is a very apodictic statement. In real life, things are slightly more complicated. State aid, money or adequate advantages granted to private entities by public bodies, is common practice in many forms. (...)

The Swedish Administrative Court of Appeal finds investment by the City Council of Stockholm in expansion of broadband to be illegal State aid that should have been notified to the Commission according to Art 88.3 EC (Thomas Svensson)
Mercer Sverige (Stockholm)
General Court of the European Union (Luxembourg)
Öberg & Associés
Factual Background In 2005, the City Council of Stockholm approved an “action plan” meaning that the four important housing corporations controlled by the City would make considerable investments in broadband infrastructure. Thomas Svensson, being a local resident, appealed the decision claiming (...)

The Spanish Administrative Legal Organ of Alava allows the deferment and break up of a State aid recovery payment (Local Administration of Alava)
Hogan Lovells (Madrid)
Allianz (Brussels)
Brief description of the facts and legal issues: Appeal before the Administrative Legal Organ of Alava (the "ALOA") by a company against a decision of the Local Administration of Alava ("LAA") refusing the deferment and break up of the recovery of a State aid and requiring the immediate (...)

The Austrian Supreme Court rules that an advantage that may qualify as an existing State aid under Art. 87 EC may be considered permissible as long as the EC Commission has not declared this advantage as being incompatible (Newspaper cross-financing, Wiener Zeitung II)
Salzburg University
On 10 June, 2008, the Austrian Supreme Court ruled that the view according to which an advantage that may qualify as an existing state aid measure under Article 87 EC may be considered permissible as long as the Commission has not declared this advantage as being incompatible with the Common (...)

The Greek State Council declares inadmissible a submission that the misestimation of the cost of the provision of certain services by the authority who conducted a public tender amounted to State aid to the winning bidder, on the grounds that Article 87 EC does not have direct effect, but is applied on the initiative of the European Commission (Bus Operator)
University of Tilburg - Center for Law and Economics (TILEC)
Parties Applicant: Bus operator Defendant: Greece (Prefectural Administration of Serres) Facts On 21.07.2005, the prefectural committee for education and youth of the prefectural administration of Serres (Serres being a prefecture in the north of Greece and in particular in the geographical (...)

The French Administrative appeal court of Douai rejects the claim of individuals based solely on Art. 87 EC judging that the provision has no direct effect (Direction de contrôle fiscal Nord)
Sheppard Mullin (Brussels)
European Court of Justice (Luxembourg)
Factual Background The claimants contested the taxation of an indemnity paid to public servants having changed their regime of mutual insurance. This sum was taxed under Article 160-0 A of the General Tax Code. The claimants argued that the tax led to an infringement of article 3 g) EC and (...)

The Dutch Court of Appeal allows a municipality to continue its investment in a local telecommunications network, despite the European Commission having commenced an Art 88.2 EC procedure (UPC Nederland)
Hogan Lovells (Amsterdam)
Factual Background In April 2004, the Municipality of Amsterdam informed the European Commission of its intention to roll-out a telecommunications network in Amsterdam. For that purpose, a new legal entity was incorporated by the Municipality of Amsterdam. The project was subsequently notified (...)

The Dutch Council of State rules that the transfer of the building site to a housing corporation for no consideration may constitute a form of State aid that should have been notified to the European Commission (Het Vergeten Dorp)
Hogan Lovells (Amsterdam)
Factual Background On 16 December 2004, the Municipality of The Hague approved a zoning plan in which the development of a large housing complex for, inter alia, 300 student housing units was approved. The construction of this housing complex required very substantial investments from the (...)

The Dutch Supreme Court finds that an applicant can not rely on the direct effect of Art. 88.3 EC as the contested taxes did not form an integral part of a State aid measure (X B.V.)
Hogan Lovells (Amsterdam)
Factual Background X B.V. exploits a waste water treatment plant. In 1997, X B.V. was asked to pay retrospective taxes pursuant to the Act introducing taxes for the protection of the environment (Wet belastingen op milieugrondslag - ’Wbm’) over the period 1 January 1995 until 3 July 1995. X (...)

The Administrative Court awards compensation for losses caused by nullity of contract resulting from authorities’ failure to consider State aid rules (Fontanille)
Sheppard Mullin (Brussels)
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 (...)

The French Administrative Supreme Court rejected the direct effect of Art. 88.3 EC in the case of future contracts (EDF/SNE)
University Aix-Marseille
French Administrative Supreme Court (Conseil d’État), 11 June 2003, Electricité de France (“EDF”) - Société Nationale d’Electricité et de Thermique (“SNET”), Cases n° 240512 and 240520, Lebon Tables, pp. 702-703, 780, 794 Facts and proceedings Electricité de France (EDF) and the Société nationale (...)

The French State’s Council held that only measures affecting trade between member States and contrary to Art. 87 EC have to be notified (Glénat)
CRDEI - Centre de Recherche et de Documentation Européennes et Internationales (Bordeaux)
Well known for its comics publications, the Glénat publishers extended their reputation in State aid case law literature (Case commented in French, Dr. Adm., note M. Bazex et S. Blazy, February 2002, n° 21, p. 15 et RJF, February 2002, n° 249). The issue raised here is procedural. It concerns (...)

The French State Council rejected the direct effect of Art. 87 EC and excluded “automatic” notification to the EC Commission of situations likely to be regarded as State aid (“La vache à lait qui refuse de se laisser traire”)
CRDEI - Centre de Recherche et de Documentation Européennes et Internationales (Bordeaux)
This judgment is less known for its contribution in State aid law than because of the title of the applicant. None of its solutions is innovative. But for a long time, the absence of direct effect of ex-Article 92 EC (now Article 87 EC) and the office of the national judge on the basis of (...)

French Administrative Courts repeatedly rules that Art. 87.1 EC does not have direct effect and tacitly considered that they do not have to raise by their own motion a potential breach of Art. 88.3 EC (14 cases)
University Aix-Marseille
1. Introduction The present note is a comment on not less than fourteen Courts decisions in which the French administrative Courts repeatedly ruled that parties cannot, on the basis of former article 92 EC (now article 87 EC) alone, challenge the compatibility of an aid with the common market (...)


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 US District Court for the Southern District of New York interprets the Foreign Trade Antitrust Improvements Act to preclude antitrust claims by a Chinese manufacturer against its Chinese competitor (Lotes / Foxconn)
University of Indiana - Maurer School of Law (Indianapolis)
Clements & Shackle (New York)
Lotes Co., a manufacturer of USB devices, sued its competitor Foxconn in the United States District Court for the Southern District of New York alleging violations of Section One and Section Two of the Sherman Act. Lotes competes directly with Foxconn in the market for making and selling USB (...)

The US Southern District of New York addresses the question of standing for named class representatives (DDAVP Indirect Purchaser Antitrust Litigation)
Cohen Milstein (Washington)
Cohen Milstein (New York)
When class actions in recent years have been brought asserting claims on behalf of indirect purchasers under state laws that have repealed Illinois Brick, defendants have frequently argued that named class representatives lack "standing" to assert claims in a class action under the laws of (...)

The Supreme Court of the Netherlands declares that the national provision equivalent to Art. 81 EC is not a provision of public policy and, as a consequence, may not be applied ex officio by Dutch courts (De gemeente Heerlen / Whizz Croissanterie)
European Commission - DG HR (Brussels)
European Court of Justice (Luxembourg)
The municipality of Heerlen is the owner of four buildings located in a shopping street of that city. In order to erect those buildings, the municipality concluded an agreement with Whizz in November 1999, according to which Whizz had to evacuate the kiosk within which it was running his (...)

Swedish Courts disregard direct effect of the EC Utilities Directive and reject request for referral to the ECJ on its interpretation (Swebus/Storstockholms Lokaltrafik)
SNP Schlawien (Munich)
Introduction Apart from the ground breaking ruling by the European Court of Justice (ECJ) in the Altmark state aid case in 2004 , the European Commission and the European Courts have not delivered any significant competition, state aid or public procurement decisions in relation to the (...)

The Luxembourg Competition Council imposed a fine and a daily penalty payment for non-compliance with requests of information in the course of investigations ("House of justice" case)
Moyse Bleser (Luxembourg)
In the course of a cartel investigation carried out by the Competition Inspectorate (Inspection de la concurrence)(the "Inspectorate"), the addressee of the decision refused to submit accurate information to the Inspectorate, which, in reaction, adopted a formal request by way of decision (...)

The Czech Parliament implements EC. Reg. N° 1/2003 into the legal system opening the way to modernisation and harmonization of competition law (Act n° 340/2004)
University Paris I Panthéon-Sorbonne
The new principles of the Community law contained in Council Regulation (EC) n° 1/2003, of 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJEU L 1, 4 January 2003, p. 1-25), were introduced in the Czech law by Act n° 340/2004 (...)

The UK High Court refuses to strike out an action challenging the compatibility of measures taken by a state controlled body with EC Treaty provisions and EC Regulation (An Bord Bainne/The Milk Marketing Board)
London School of Economics
In the present judgment, rendered in 1984, the English High Court (Queen’s Bench Divisional Court) effectively relied on the direct effect of the then Art 86 EEC (now Art 82 EC) in order to allow a privately owned co-operative organisation to challenge the compatibility of decisions taken by the (...)

Public sector

The EU Court of Justice rules that the authorities of a Member State may rely on the provisions of a non-transposed directive against a body holding a public service concession (Portgás)
University of Bristol - Law School
CJEU: vertical effect of Directives goes both ways (C-425/12)* The Judgment of the CJEU of 12 December 2013 in case C-425/12 Portgás may appear to be of interest only for public procurement aficionados (and, even then, only for hardcore ones), as it deals with the potential applicability of the (...)

The German Federal Court of Justice rules on rescue services being subject to the national public procurement regime (Saxon municipalities rescue services)
Free University of Berlin
I. Background Several Saxon municipalities built up an alliance for efficient organization of public responsibilities. The alliance had the objective to provide rescue services in the public interest, comprehending mainly an emergency rescue system and a patient transport system, but also the (...)

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