Amicus curiae

Foreword Amicus Curiae: An overview of EU and national case law

Amicus Curiae participation in domestic court cases is well developed in Common law countries and especially in U.S. jurisprudence. It is important to note that civil law jurisdictions do not have a tradition in using such an instrument and its introduction is mostly recent. Amicus intervention is usually not limited to any one particular kind of group and has frequently involved a range of participants, including individuals and foreign governments. Recently, this practice has been introduced in front of arbitral tribunals which have strongly advocated the participation of non-disputing parties as Amicus Curiae in such proceedings in order to ensure more transparency and public participation specifically in matters of investment arbitration.

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European Court of Justice (Luxembourg)
Luxembourg 12 contributions 30589 visits

Dominance

 Amicus Curiae in the context of EU Regulation 1/2003: An overview of EU and national case law
European Court of Justice (Luxembourg)
Luxembourg 12 contributions 30589 visits
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European Court of Justice (Luxembourg)
Luxembourg 1 contribution 1417 visits
I. Definition and "Raison d’être" Amicus Curiae, an expression whose first known use is dated in the early 17th century, stands for “friend of the court”, that is to say, in general, someone who is not a party to the litigation, but who believes that the court’s decision may affect his (...)

The US FTC files an amicus brief arguing that a company has used unlawful strategies to delay the entry of a generic-brand drug into the market for the treatment of Parkinson’s disease (Sage Chemical / TruPharma / Supernus Pharmaceutical)
US Federal Trade Commission (FTC) (Washington)
United States 182 contributions 43070 visits
FTC Files Amicus Brief in Sage Chemical vs. Supernus Pharmaceutical Supporting Competition in the Market for Drug Used to Treat Advanced Parkinson’s Disease* The Federal Trade Commission filed a brief as Amicus Curiae in the U.S. District Court for the District of Delaware in a case related (...)

The US FTC files an amicus brief challenging the abuse of the FDA’s "orange book" listing procedures which allow companies to automatically block the entry of generic drugs for 30 months (Jazz Pharmaceuticals / Avadel CNS Pharmaceuticals)
US Federal Trade Commission (FTC) (Washington)
United States 182 contributions 43070 visits
FTC Amicus Brief Challenges Abuse of FDA “Orange Book” Listing Procedures to Block Drug Competition* The Federal Trade Commission filed an amicus brief with the U.S. District Court for the District of Delaware in the case of Jazz Pharmaceuticals v. Avadel CNS Pharmaceuticals. The Brief (...)

The US Court of Appeals for the DC Circuit hears an appeal brought by 48 State Attorney Generals against a ruling by a District Court in a Big Tech refusal to deal case (Meta)
White & Case (Washington)
United States 15 contributions 4873 visits
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White & Case (Washington)
United States 1 contribution 220 visits
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White & Case (Washington)
United States 34 contributions 19704 visits
Application of the Proper ‘Outer Boundary’ of Antitrust Liability for Alleged Refusals to Deal in New York v Facebook* Introduction The States brought an antitrust complaint against Facebook alleging that various conduct violated Section 2 of the Sherman Act. The ICLE brief addresses the (...)

The Milan Court of Appeal overturns a judgment on screen scraping and intermediation of online travel agencies and rejects the allegations of abuse of dominance by an airline (Lastminute / Viaggiare / Ryanair)
European Court of Justice (Luxembourg)
Luxembourg 1 contribution 1293 visits
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Nunziante Magrone (Rome)
Italy 2 contributions 1863 visits
Introduction With two judgements delivered on June 2015 regarding cases brought by Lastminute.com S.r.l. and Viaggiare S.r.l. respectively against Ryanair , the Court of Appeal of Milan held that Ryanair’s refusal to grant travel agencies the right of intermediating its tickets does not (...)

The Slovak Supreme Court upholds the Competition Authority’s decision on prohibition of abuse in ‘green dot’ licensing (ENVI‑PAK)
European Commission - DG COMP (Brussels)
Belgium 714 contributions 220280 visits
Slovakia: The Supreme Court upholds Authority’s Decision in Banking Cartel Case* On 23 May 2013, the Supreme Court of the Slovak Republic (Supreme Court) confirmed the decision of the Antimonopoly Office of the Slovak Republic (the Office) imposing a fine of € 18 394 on ENVI‑PAK, a. s. (...)

The Slovak Supreme Court upholds the Competition Authority’s decision after the intervention of the EU Commission (Cargo Slovakia)
Havel and Partners (Brno)
Czech Republic 10 contributions 3729 visits
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Government of Slovakia (Bratislava)
Slovakia 3 contributions 557 visits
Relevant facts In the following judgement, the Supreme Court of the Slovak Republic confirmed the decision of the Slovak Antimonopoly Office (hereinafter referred to as "Office") where the Office stated that the railway company Železničná spoločnosť a.s., later its successor, Železničná (...)

The US Court of Appeals for the Fourth Circuit holds that the lower court erred in defining the relevant geographic market in an antitrust monopoly claim over the para-aramid fiber industry under section 2 of the Sherman Act (DuPont de Nemours / Kolon)
Wolters Kluwer (Riverwoods)
États-Unis 78 contributions 39175 visites
Monopoly Claims Against DuPont Revived by Fourth Circuit* Claims that E.I. du Pont de Nemours and Company attempted to wield, and did wield, monopoly power over the U.S. para-aramid fiber market in violation of Sec. 2 of the Sherman Act should not have been dismissed, the U.S. Court of (...)

The Slovakian Supreme Court upholds the Competition Authority’s decision fining an undertaking’s successor for abuse of its dominant position (ZS Cargo)
European Commission - DG COMP (Brussels)
Belgium 714 contributions 220280 visits
Slovakia: Supreme Court upholds Competition Authority’s Decision in Cargo Railway Case At an oral hearing held on 26 October 2010, the Supreme Court of the Slovak Republic upheld the decision of the Antimonopoly Office of the Slovak Republic (“AMO”) of 22 December 2006 in the matter (...)

The Slovakian Supreme Court rules that holding a successor liable under the economic continuity test does not constitute circumstances which warrant a reduction of the fine imposed (ZS Cargo)
Braun (Bratislava)
Slovakia 7 contributions 9298 visits
On 26 October 2010, the Slovak Supreme Court as the final instance rejected the appeal made by the Slovak state-owned rail cargo incumbent, Zeleznicna spolocnost Cargo Slovakia, a.s.(“ZS Cargo”), against the first and second instance decision of the Slovak Competition Authority which imposed (...)

The Swedish Supreme Court asks for the EU Commission’s opinion on the definition of the relevant market concerning alleged excessive prices for port services (Port of Ystad)
Cederquist (Stockholm)
Suède 8 contributions 37546 visites
On 18 October 2006 the European Commission (the “Commission”) received a request from the Swedish Supreme Court (the “Court”) regarding the definition of the relevant market in a case concerning the application of Article 82 EC. The case before the Court concerns inter alia whether or not the (...)

State Aids

 The EU Court of Justice rules that the national courts dealing with a case of recovery of illegal state aid may not disregard the statement of position made by the Commission in the relevant decision (Mediaset)
Maastricht University (Maastricht)
Belgium 357 contributions 66776 visits
Article published on Lexxion State Aid Blog The Role of National Courts in Recovery of Incompatible State Aid* Introduction In December I examined the judgment in the case of Lufthansa v Frankfurt-Hahn, which laid down certain obligations for national courts whenever they are petitioned (...)

Procedures

 The EFTA Court establishes that when no judicial remedies is provided under national law, an advisory opinion in compliance with their duty of loyalty can be requested (Irish Bank Resolution / Kaupthing Bank)
University of Fribourg
Switzerland 1 contribution 574 visits
Case E-18/11: Small steps towards a preliminary reference procedure for the EEA EFTA countries?* The EFTA Court handed down an interesting decision in September 2012 which merits a short comment. The Surveillance and Court Agreement of the EEA EFTA countries does not foresee a procedure akin (...)

The US District Court for the Eastern District of New York admits the confidentiality of documents emanating from the EU Commission’s investigation (Visa / MasterCard)
European Commission - DG COMP (Brussels)
Belgium 714 contributions 220280 visits
European Commission: Recent Developments on Discovery following Amicus Curiae* On 27 August 2010, the US District Court of the Eastern District of New York, Judge John Gleeson, on appeal issued an order whereby access by the plaintiffs to a Statement of Objections and to a transcript of an (...)

The EU Commission publishes its 2009 annual report on competition policy
Court of First Instance of Namur (Namur)
Belgique 224 contributions 47457 visites
On 3 June 2010, the European Commission published its 2009 annual report on competition policy. This yearly report gives an overview of the main developments in EU competition policy and major enforcement actions. The 2009 report also dedicates a chapter to considering how the tools of (...)

The Amsterdam Court of Appeal holds that fines imposed by the EU Commission for breach of competition rules are not deductible from taxable profits (X B.V. Belanghebbende / Inspecteur Belastingdienst)
European Commission - DG COMP (Brussels)
Belgium 46 contributions 199460 visits
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General Court of the European Union (Luxembourg)
Luxembourg 23 contributions 87377 visits
The present judgement from the Gerechtshof Amsterdam (the Court of appeal of Amsterdam) follows the preliminary ruling issued by the European Court of Justice on 11 June 2009 in case C-429/07, Inspecteur van Belastingdienst v. X BV. The case at hand relates to a dispute between company X and (...)

The EU Court of Justice, issuing a preliminary ruling in answer to a reference made by a Dutch Court, holds that the Commission may submit on its own initiative, on the basis of Art. 15.3 of Reg. 1/2003, written observations to national courts in proceedings relating to the deductibility from taxable profits of the amounts of a fine imposed for infringement of Art. 81 and 82 EC (X BV)
European Commission - DG COMP (Brussels)
Belgium 46 contributions 199460 visits
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General Court of the European Union (Luxembourg)
Luxembourg 23 contributions 87377 visits
On 11 June 2009, the ECJ issued a preliminary ruling in answer to a reference made by the Court of Appeal of Amsterdam, which asked whether the Commission was competent, under Article 15(3) of Regulation n° 1/2003 , to submit, on its own initiative, written observations to a national court in (...)

The ECJ Advocate General Mengozzi hands down his opinion on Commission’s amicus curiae powers
Court of First Instance of Namur (Namur)
Belgique 224 contributions 47457 visites
On 5 March 2009, Advocate General Mengozzi handed down his opinion in a question put forward by the Amsterdam Regional Court in the Netherlands about the scope of the Commission’s power to present written observations before national courts. The question was posed in the context of litigation (...)

A Dutch Court holds that fines imposed by the NCA for infringements of the national competition act are not deductible for corporate tax purposes, while fines imposed by the European Commission are partly deductible (X/NMa)
European Commission - DG COMP (Brussels)
Belgium 46 contributions 199460 visits
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General Court of the European Union (Luxembourg)
Luxembourg 23 contributions 87377 visits
One more time, the Rechtbank of Haarlem has been faced with the issue of the deductibility for corporate tax purposes of fines imposed for breach of competition law. The case at issue concerns an undertaking active in gardening services (hereafter: “X”) which was fined by the Dutch (...)

A Dutch Court applies for an ECJ preliminary ruling on the application of Art. 15.3 Reg. n° 1/2003 by the EC Commission within the framework of a tax case raising only indirectly EC competition provisions (X B.V. Belanghebbende/Inspecteur Belastingdienst)
European Commission - DG COMP (Brussels)
Belgium 46 contributions 199460 visits
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General Court of the European Union (Luxembourg)
Luxembourg 23 contributions 87377 visits
In November 2002, the European Commission imposed a fine upon a Dutch company, (hereafter “X”), for breach of Article 81 EC. The payment of this fine was partly made by another company affiliated to X. Under Dutch tax law, a fine imposed upon a company by a Community institution may not be (...)

The Paris Court of Appeal receives the first application ever from the EU Commission acting as amicus curiae on the basis of Reg. N°1/2003 in the automobile sector (Garage Gremeau / Daimler Chrysler)
Lenoir Avocats (Paris)
17 contributions 93870 visits
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Eversheds Sutherland (Paris)
France 14 contributions 82124 visits
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Kenvue
13 contributions 80242 visits
Facts and proceedings Garage Gremeau had been entrusted by Daimler Chrysler France with the distribution of Mercedes Benz motor vehicles in the Dijon area (Burgundy) since 1982. On the basis of the new Commission Regulation (EC) n° 1400/2002, of 31 July 2002, on the application of Article (...)

The Paris Court of Appeal receives observations from the EU Commission which constitutes the very first submission to a national court since the adoption of Reg. n° 1/2003 (Garage Gremeau / Daimler Chrysler)
Freshfields Bruckhaus Deringer (Paris)
France 77 contributions 298336 visits
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Orange (Paris)
France 1 contribution 10769 visits
Background According to Article 15(3) of 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 (OJEC L 1, 4 January 2003, pp. 1-25), the European Commission (the “Commission”) may submit (...)

Regulations

 The England and Wales Tribunal accepts the submission sent by the Competition Commission for recovery of participation costs as regards a quasi-judicial review within an appeal under section 193(7) (British Telecommunications / Office of Communications)
Blackstone Chambers (London)
United Kingdom 11 contributions 3115 visits
Down the rabbit-hole: costs, the Comms Act and the Competition Commission* ‘“But I don’t want to go among mad people”, Alice remarked. “Oh, you can’t help that,” said the Cat: “we’re all mad here”.’ Where an appeal to the Tribunal under section 192 of the Communications Act 2003 gives (...)

Anticompetitive practices

 The US FTC files an amicus brief arguing that a defendant against abusive exclusive dealing and bundling charges in a private enforcement case has misstated the legal standards of the behaviours (Medtronic / Applied Medical)
US Federal Trade Commission (FTC) (Washington)
United States 182 contributions 43070 visits
FTC Files Amicus Brief to Clarify Antitrust Standards Involving Exclusive-Dealing and Bundling Arrangements* The Federal Trade Commission filed a friend-of-the-court (amicus) brief in the U.S. District Court for the Central District of California, clarifying legal standards that apply in (...)

The US FTC files an amicus brief in support of employees challenging a fast food company’s intra-franchise no-poach rules (McDonald’s / Deslandes and others)
US Federal Trade Commission (FTC) (Washington)
United States 182 contributions 43070 visits
FTC Joins Justice Department in Amicus Brief Supporting Workers’ Challenge to McDonald’s “No Hire” Franchise Restrictions* Brief argues that a provision in McDonald’s franchise agreement is per se illegal under U.S. antitrust law The Federal Trade Commission joined the Department of (...)

The US Supreme Court grants a motion to hear a constitutional challenge to the per se rule in a criminal antitrust case (Lischewski)
Robert Connolly Law (Philadelphia)
United States 23 contributions 5170 visits
Will the Supreme Court Grant Certiorari and Review the Per Se Rule?* I have no expertise in predicting whether the Supreme Court will grant certiorari on any given petition. But I am hopeful that the high court will do so on the issue of whether the application of the per se rule in a (...)

The US Court of Appeals for the Second Circuit dismisses antitrust claims against two Chinese pharmaceutical companies for reasons of international comity (Animal Science Products / Hebei Welcome Pharmaceutical)
Cleary Gottlieb Steen & Hamilton (New York)
United States 1 contribution 241 visits
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Cleary Gottlieb Steen & Hamilton (New York)
United States 1 contribution 241 visits
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Cleary Gottlieb Steen & Hamilton (New York)
United States 1 contribution 241 visits
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The U.S. Court of Appeals for the Second Circuit recently issued a 2-1 decision in In re Vitamin C Antitrust Litig., dismissing antitrust claims against two Chinese pharmaceutical companies for reasons of international comity in a case that has lasted over 15 years. On August 10, 2021, the (...)

The EU Court of Justice provides guidance to French Court on the relationship between EU Common Agricultural Policy and Competition Law (APVE)
Van Bael & Bellis (Brussels)
Belgique 389 contributions 94960 visites
On 14 November 2017, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a request for preliminary ruling from the French Supreme Court regarding the relationship between the objectives of the EU’s Common Agricultural Policy and those of EU competition law (C-671/15, (...)

The US Supreme Court hears oral arguments before interpreting the state action exemption to the antitrust laws (North Carolina Board of Dental Examiners)
Bona Law (Detroit)
United States 24 contributions 5688 visits
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On October 14, 2014, the Supreme Court will hear oral arguments in North Carolina Board of Dental Examiners v. FTC, the latest in its long line of cases (...)

The US FTC files an amicus brief before the Court of Appeals explaining that commitment not to compete raises the same antitrust concerns as the reverse-payment patent settlements (King Drug / SmithKlineBeecham)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 7677 visits
U.S. FTC files an amicus brief in the Court of Appeal urging to reverse the District Court finding in the Lamictal Direct Purchase Antitrust Litigation* On 28 April, 2014 the Federal Trade Commission (“FTC”) filed an amicus brief in the Court of Appeals for the Third Circuit in the (...)

The US FTC appeals the US District Court for the District of New Jersey decision that a “no authorized generic” agreement cannot be an antitrust violation (King Drug / SmithKlineBeecham)
McDermott Will & Emery (Paris)
France 136 contributions 68509 visits
On May 2, 2014, the Federal Trade Commission (FTC) filed an amicus brief with the U.S. Court of Appeals for the Third Circuit requesting that the court reverse the district court’s decision in Lamictal Direct Purchaser Antitrust Litigation, finding that a “no authorized generic” agreement (...)

The US FTC submits brief amicus curiae in a pay-for-delay case in which it supports the absence of a cash payment is not determinative in the pharmaceutical sector (In Re Effexor XR)
McDermott Will & Emery (Dusseldorf)
Germany 12 contributions 2011 visits
The Federal Trade Commission’s (FTC) battle against “reverse-payment” settlements continues. In an amicus brief recently submitted in the case of In re Effexor XR Antitrust Litigation, the FTC advanced a broad interpretation of the Supreme Court’s decision in FTC v. Actavis that looks beyond (...)

The Paris Court of Appeal upholds the Competition Authority’s decision in the jet fuel sector in La Réunion (Shell / Chevron / Total / Esso / Air France)
Nest Avocats (Paris)
France 14 contributions 39194 visits
1. The facts In January 2003, Air France lodged a complaint before the French Competition Authority (FCA) regarding an alleged cartel between the four oil companies established in the La Reunion Island Airport during the 2002 Air France’s tender. First inquiries were made in La Reunion and (...)

The U.S. FTC files amicus curiae brief supporting generics’ claim in patent dispute (Actelion Pharms / Apotex)
DLA Piper Weiss-Tessbach (Vienna)
Austria 26 contributions 7677 visits
U.S. FTC files amicus curiae brief supporting generics’ claim in patent dispute* On 11 March 2013 the U.S. Federal Trade Commission (“FTC”) filed an amicus curiae brief in the case Actelion Pharms Ltd. V. Apotex Inc. which is being heard in the U.S. District Court for New Jersey supporting (...)

The Paris Commercial Court seeks the opinion of the French Competition Authority on the broadcasting rights for championship football matches (Ligue de Football Professionnel)
French Competition Authority (Paris)
France 747 contributions 409109 visits
The Paris Commercial Court seeks the opinion of the Autorité de la concurrence on the compatibility with competition rules of the call for tenders the Ligue de Football Professionnel (LFP - French professional football league) issued in 2010 to grant broadcasting rights for League 2 football (...)

The Irish Competition Authority wins beef industry case following the withdrawal of the opposing party (Beef Industry Development Society)
European Commission - DG COMP (Brussels)
Belgium 714 contributions 220280 visits
Ireland: The Competition Authority wins Beef Industry Case* On 26 January 2011, the Competition Authority has won court proceedings in which it challenged the compatibility with EU and Irish competition provisions of an agreement between competitors to reduce capacity in the Irish beef (...)

The Amsterdam Court of First Instance rules on a refusal to appoint motor vehicle dealers to a motor vehicle selective distribution network (KIA)
Van Bael & Bellis (Brussels)
Belgique 174 contributions 58425 visites
On 3 December 2009, the President of the Amsterdam Court of First Instance (the “President”) accepted an interim proceedings claim brought by four former Kia Nederland BV (“KIA Nederland”) repairers. The repairers claimed that KIA Motors Nederland BV (“KIA Motors”), which replaced KIA (...)

The Paris Court of Appeal refers to the Court of Justice for a preliminary ruling on whether or not a general and absolute ban on internet sales by approved distributors constitutes a ’hardcore restriction’ on competition (Pierre Fabre)
Galderma (Paris)
France 6 contributions 14944 visits
In a judgment dated 29 October 2009, the French Court of Appeal made a reference for a preliminary ruling under article 234 of the Treaty establishing the European Community (the “EC Treaty”), whereby the ECJ was asked to answer “the question whether a general and absolute ban on Internet (...)

The Dutch Court of Appeal of the Hague, after having sought the opinion of the EU Commission, holds that a decision adopted by a mussel farmers association did not breach Art. 81.1 EC (Vereniging Productenorganisatie van de Nederlandse Mosselcultuur / Praet en Zonen)
European Commission - DG COMP (Brussels)
Belgium 46 contributions 199460 visits
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General Court of the European Union (Luxembourg)
Luxembourg 23 contributions 87377 visits
In 1998, PO, a cooperative association of mussel farmers, adopted a regulation (hereafter the “1998 regulation”) providing for the allocation to its members of the mussel seeds quantity that they could fish, of which the total amount is determined by government on a yearly basis. On 25 (...)

The Bordeaux Commercial Court rules on quantitative selection distribution for motor vehicles (Land Rover)
Van Bael & Bellis (Brussels)
Belgique 174 contributions 58425 visites
On 8 February 2008, the Commercial Court of Bordeaux ruled on quantitative selective distribution for motor vehicles. Land Rover refused to appoint as its authorised distributor an undertaking established in a French town on the grounds that Land Rover‘s distributors’ map provided for a (...)

The Spanish Provincial Court of Madrid refuses to qualify a contract as a resale agreement and holds that the qualification given by “administrative bodies” to similar agreements is not binding upon national courts (Melón / Repsol)
London School of Economics
Royaume-Uni 57 contributions 302188 visites
Repsol Comercial de productos petrolíferos S.A. (hereinafter, “Repsol”), supplied oil products to Melón S.A. (hereinafter, “Melón”), pursuant to an agency agreement signed between the parties. Considering that it was not a “genuine” agency agreement and that Commission Regulation (EC) n° (...)