Burden of proof

General antitrust

The Canadian Competition Authority recommends sweeping amendments to core provisions of the Canadian Competition Act
Steve Szentesi Law Corporation (Vancouver)
Canada’s Competition Bureau Recommends Sweeping Amendments to the Competition Act, Including Deceptive Marketing Amendments On February 8, 2022, Canada’s Competition Bureau released a submission entitled Examining the Canadian Competition Act in the Digital Era in response to Senator Howard (...)

The Chinese National People’s Congress seeks comments on its draft amendments to the anti-monopoly law
King & Wood Mallesons (Beijing)
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King & Wood Mallesons (Beijing)
Key Changes and Impacts On October 23, 2021, the Standing Committee of the Chinese National People’s Congress (“NPC”) released the Draft Amendments (’Draft Amendments’) to Anti-Monopoly Law of the People’s Republic of China (“AML”) for public comments [1]. This is the second draft of amendments (...)

The UK Government publishes consultations on far-reaching reforms to competition and consumer laws which would substantially expand the powers of the Competition Authority and reduce procedural protections
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)
The U.K. government is consulting on far-reaching reforms to U.K. competition and consumer laws, which would substantially expand the powers of the Competition and Markets Authority (CMA) and reduce procedural protections. Key proposals include: Merger control jurisdiction enlarged: The CMA (...)

The US Senate introduces Senator Hawley’s proposal for an important antitrust reform aimed at Big Tech, Big Banks, Big Telecoms, and Big Pharma
White & Case (New York)
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White & Case (Washington)
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Meta (Washington)
Sen. Hawley’s "Trust-Busting for the Twenty-First Century Act," introduced on April 12, 2021, takes aim at "Big Tech, Big Banks, Big Telecom, and Big Pharma" by proposing to curb mergers and acquisitions by large corporations and ease the way for prosecutors and private plaintiffs to prevail in (...)

The Russian Supreme Court adopts a decree providing clarifications on antitrust matters that arise in court proceedings
Herbert Smith Freehills (Moscow)
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Herbert Smith Freehills (Moscow)
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Herbert Smith Freehills (Brussels)
In March, the Russian Supreme Court adopted a Decree providing clarifications on antitrust matters (the "Plenum Decree") . The Plenum Decree replaced most of the previous antitrust clarifications issued by the Supreme Commercial Court back in 2008. The new measure is comprehensive and covers a (...)

The German Parliament announces the publication of the Act against Restraints of Competition containing several significant adjustments to the draft that was initially put to a vote
White & Case (Düsseldorf)
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White & Case (Düsseldorf)
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White & Case (Hamburg)
Yesterday, the 10th amendment to the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – "GWB") entered into force, and with it the most substantial overhaul of German competition law in a long time. The new law contains a number of significant adjustments of (...)

The German Federal Ministry for Economic Affairs and Energy issues an update on the reform of national competition law
Court of First Instance of Namur (Namur)
On 24 January 2020, the German Federal Ministry for Economic Affairs and Energy published an update of its draft 10th amendment to the Act against Restraints of Competition (the “ARC”), officially called the “ARC Digitization Act”. Compared to the initial draft (see VBB on Competition Law, Volume (...)

The OECD holds a roundtable on hub-and-spoke arrangements in competition
OECD - Competition Division (Paris)
Hub-and-spoke arrangements are horizontal restrictions on the supplier or retailer level (the “spokes”), which are implemented through vertically related players that serve as a common “hub” (e.g., a common manufacturer, retailer or service provider). The “hub” facilitates the co-ordination of (...)

The US State of California becomes the first State to enact legislation rendering certain pharmaceutical patent litigation settlement agreements presumptively anticompetitive
White & Case (Washington)
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Allen & Overy (Palo Alto)
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White & Case (New York)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On October 7, 2019, California became the first state to enact legislation— Assembly Bill 824 (“AB 824”)—rendering certain pharmaceutical patent litigation (...)

The Chinese State Administration for Market Regulation issues three new sets of rules and regulations relating to monopoly agreements, abuse of dominant market positions and abuse of administrative power
Orrick, Herrington & Sutcliffe (Beijing)
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Noerr (Dusseldorf)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. September 1, 2019 may be seen as a new starting point for the enforcement of China’s antitrust and competition laws. On this date, three new sets of rules and (...)

Anticompetitive practices

The UK Competition Appeal Tribunal overturns the Competition Authority’s wide "Most Favoured Nation" decision (ComparetheMarket)
Clifford Chance (London)
Background In November 2020, the CMA issued a Decision against CTM and imposed a c. £18m penalty. The Decision took issue with contractual obligations known as wide most favoured nation clauses (wide MFNs), which were imposed by CTM in its agreements with certain home insurers. These clauses (...)

The US Court of Appeal for the seventh circuit rejects a "Patent Thicket" allegation against a pharmaceutical company, on the claim of prevention of market entry (AbbVie)
Constantine Cannon (New York)
Seventh Circuit’s Rejection of Insurers’ Monopolization Case is Not the Final Word on “Patent Thicket” Litigation* The theory that patent holders can be held liable under the antitrust laws for blocking competition with a thicket of patents may be down—but it is not out. Although the “patent (...)

The EU Court of Justice rules on the temporal applicability of EU law on limitation periods and burden of proof in actions seeking antitrust damages (Volvo / DAF Trucks)
Portolano Cavallo (Milan)
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Portolano Cavallo (Milan)
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Portolano Cavallo (Rome)
On June 22, 2022, the European Court of Justice (hereinafter, the “ECJ”) issued a judgement in Case C-267/20 clarifying the temporal application of certain provisions of Directive 2014/104/EU (the “Directive”), namely Article 10 on limitation periods to claim damages and Article 17 on presumption (...)

The Ankara 9th Administrative Court annuls the Turkish Competition Authority’s decision to impose an administrative monetary fine on a chemical supplier stating that the standard of proof has not been met (Hicri Ercili)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
The Ankara 9 th Administrative Court (“Administrative Court”) annulled the decision of the Turkish Competition Board (“Board”) where an administrative fine of TL 11,214,051.26 was imposed on Hicri Ercili Deniz Nakliyat Kimyevi Maddeler San. ve Tic. Ltd. Şti.) (“Hicri Ercili”), a supplier of the (...)

The EU Court of Justice sets out the criteria for defining a dominant position in connection with exclusionary practices on the basis of anticompetitive effects of the conduct of an incumbent operator in the context of the liberalisation of the electricity market (Servizio Elettrico Nazionale)
European Court of Justice (Luxembourg)
The Court of Justice sets out the criteria for defining a dominant position in connection with exclusionary practices on the basis of anticompetitive effects of the conduct of an incumbent operator in the context of the liberalisation of the electricity market* This case has arisen in the (...)

The Ankara Regional Administrative Court 8th Administrative Chamber rules for the stay of execution of the Turkish Competition Authority’s cartel decision because the Authority failed to reach the requisite burden of proof (AKKIM)
ACTECON (Istanbul)
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ACTECON (Istanbul)
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ACTECON (Istanbul)
A Critical Approach to Standard of Proof Adopted by the TCA* The Ankara Regional Administrative Court 8th Administrative Chamber (“Regional Court“) recently ruled for the stay of execution of the Turkish Competition Authority’s (“TCA“) cartel decision which has imposed on two undertakings active in (...)

The Hong Kong Competition Tribunal delivers its first judgment in a private enforcement action, rejecting claims of an alleged cartel in the supply of diesel (Shell Hong Kong / Meyer Aluminium)
Linklaters (Hong Kong)
This article has been nominated for the 2022 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Competition Tribunal has delivered its judgment in the first private competition action in Hong Kong SAR. By rejecting the claims of an alleged cartel in the (...)

The Indian Competition Authority dismisses allegations of bid rigging in the market for stevedoring contractors in Paradip Port (Steel Authority of India / Paradip Port / Mahimanand Mishra)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
The Competition Commission of India (CCI) dismissed allegations by the Steel Authority of India Limited (SAIL) and Paradip Port Trust (PPT) that some stevedoring contractors in Paradip Port had engaged in cartelisation in bidding for stevedoring contracts. According to the CCI, the first (...)

The Turkish Supreme Court annuls the Competition Authority’s decision to impose a fine on a manufacturer of personal and home care products for resale price maintenance and clarifies that RPM cases require an element of "coercion" or "incentive" (Henkel)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case summary includes an analysis of the 13th Chamber of the Council of State’s reversal (E. 2021/969, K. 2021/2654, 06.07.2021) of Ankara Regional Administrative Court’s judgment (E. 2020/394, K. 2020/2451, 23.12.2020). Ankara Regional Administrative Court upheld the Turkish Competition (...)

The Indian Competition Authority rejects allegations that several domestic airlines had colluded to raise prices (Shikha Roy / Jet Airways)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
The Competition Commission of India (CCI) rejected allegations that a number of domestic airlines had colluded to raise prices during the period of Jat agitation in February 2016. Following the conclusions of the investigating Director General (DG), the CCI found there was no evidence of a (...)

The Belgian Competition Authority considers that the commitments offered by two food retailers under the purchase alliance probe were proportionate and suitable to address potential restrictions of competition (Carrefour / Provera)
Ashurst (Brussels)
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Ashurst (Brussels)
In its decision of 28 April 2021, the Belgian Competition Authority ("BCA") considered that the commitments offered by Carrefour and Provera under the purchase alliance probe were proportionate and suitable to address potential restrictions of competition. Following Carrefour’s divestment offer, (...)

The US Court of Appeals for the Fifth Circuit upholds the FTC’s decision in the first fully litigated reverse payment decision against generic pharmaceutical companies (Endo / Impax)
Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (Washington)
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American Antitrust Institute (Washington)
On April 13, the U.S. Court of Appeals for the Fifth Circuit affirmed the Federal Trade Commission’s decision that Impax Laboratories entered an anticompetitive “reverse payment” settlement with Endo Pharmaceuticals. This case was the FTC’s first fully litigated reverse payment case since the (...)

The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling finding a generic drugmaker liable for anticompetitive infringements through a “reverse payment” settlement with a brand manufacturer (Endo / Impax)
Hausfeld (Philadelphia)
On April 13, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Federal Trade Commission’s ruling that generic drug maker Impact Laboratories, LLC (now owned by Amneal Pharmaceuticals) engaged in an anticompetitive “reverse payment” settlement with brand manufacturer Endo (...)

The German Federal Court of Justice rejects a follow-on damage claim but extends the factual presumption that cartel effects damage truck buyers further down the supply chain (Trucks cartel II)
Jones Day (Brussels)
On 13 April 2021, the German Federal Court of Justice (“BGH”) rejected a follow-on damages claim filed against truck manufacturer Daimler in relation to the European Commission’s ("Commission") Trucks decision. Nevertheless, it is generally seen as a ruling favorable for plaintiffs seeking cartel (...)

The US Court of Appeals for the Fifth Circuit rules that showing that the reverse payment settlement eliminated the possibility of an earlier generic entry is enough to infer anticompetitive effects (Endo / Impax)
Jones Day (New York)
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Jones Day (Washington)
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Jones Day (Washington)
In Short The Background: In the Supreme Court’s landmark 2013 decision in FTC v. Actavis, the Court determined that large payments by branded drugmakers to potential generic entrants to settle patent disputes could be anticompetitive. It instructed district courts to apply the "rule of reason" (...)

The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling regarding an unlawful pay-for-delay agreement in the pharmaceutical sector (Endo / Impax)
Baker Botts (Washington)
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Baker Botts (Washington)
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Baker Botts (Washington)
On April 13, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Federal Trade Commission’s (“FTC” or “Commission”) ruling that the “reverse-payment” settlement agreement between Endo Pharmaceuticals Inc. (“Endo”) and Impax Laboratories LLC (“Impax”) violated federal antitrust laws. The (...)

The UK Court of Appeal confirms the High Court’s decision taking into account the claimant’s insolvency in considering whether it could have discovered the facts of the cartel to enable it to plead a viable claim (Granville / Infineon)
Hausfeld (London)
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Hausfeld (London)
The Court of Appeal (CoA) judgment in Granville v Infineon concerns the scope of the claimant’s duty of reasonable diligence in circumstances where facts of the harmful conduct were concealed from the claimant. The CoA dismissed the defendants’ appeal and confirmed that the High Court was correct (...)

The Mexican Competition Authority notifies economic agents of a statement of probable responsibility for possible collusion in the market of land passenger transportation
Mexican Competition Authority (Mexico City)
COFECE notifies economic agents of a statement of probable responsibility for a possible collusion in the market for land passenger transportation* With this notification of a statement of probable responsibility, the trial-like procedure initiates, in which the economic agents can present (...)

The Indian Competition Authority dismisses allegations of cartelization within a professional association in the corrugated box manufacturing industry (Gujarat Paper Mills Association / Indian Corrugated Case Manufacturers’ Association)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS A no presumption of appreciable adverse effect on competition (“AAEC”) cannot arise without first establishing the existence of an agreement in terms of the provisions Act. BRIEF FACTS An information was filed before CCI by the Gujarat Paper Mills Associations (“GPMA / Informant”), (...)

The Finnish Market Court finds that three manufacturers of expanded polystyrene engaged in a single and continuous national price-fixing cartel (Jackon Finland / UK-Muovi / Styroplast)
Hannes Snellman (Helsinki)
On 3 March 2021, the Market Court agreed with the submission of the Finnish Competition and Consumer Authority ("FCCA"), that three manufacturers of expanded polystyrene (“EPS”), a building insulation material, had engaged in a national price fixing cartel lasting one and a half years. One of (...)

The Indian Competition Authority finds no proof of a cartel to fix ticket prices among five airline companies (Jet Airways / Indigo / Spice Jet / Go Air / Air India)
SpiceJet (Gurgaon)
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University of Leiden - Europa Institute (Leiden)
I. Introduction The Aviation sector has faced an unprecedented crisis situation due to the havoc wrecked by the COVID-19. In 2020, ICAO estimated an “overall reduction of 2,699 million passengers and approx. USD 371 billion loss of gross passenger operating revenues” in comparison to the level (...)

The Indian Competition Authority orders the closure of an investigation into alleged cartelization in the airlines industry because the observed price parallelism was not proven to have occurred through cartelization (Jet Airways / Indigo / Spice Jet / Go Air / Air India)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS Mere price parallelism does not amount to cartelization, if: (i) the market prices have fluctuated, at times with significant margins, (ii) new players are easily able to establish themselves; (iii) all players offer more or less similar kinds of services, and (iv) the prices depend (...)

The Indian Competition Authority finds upon further investigation no evidence of bid-rigging in tenders submitted to the Government Department of Printing for the services of printing, packing and dispatch of confidential documents (Chandraprabhu / Saraswati Offset Printers / United India Tradex)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS (i) The mere fact that participants to a tender have common directors/shareholders is not sufficient evidence to return a finding that the parties are engaging in bid-rigging. (ii) Commercial transactions between related parties, such as sale/purchase of goods and loan exchanges, (...)

The French Competition Authority accepts a building games company’s commitments to correct price discrimination against online retailers (Lego)
University Paris Saclay (Paris)
While the rules on price discrimination lack clarity, the French competition Authority has missed the opportunity to do its part. In order to compensate for the price increase of its products, the Lego France company created a discount scheme for the benefit of its resellers. The discount (...)

The Canadian Competition Authority closes its investigation into an alleged conspiracy by large media companies (Postmedia / Torstar)
Conway Baxter Wilson (Ottawa)
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Journal of Parliamentary and Political Law (Ottawa)
Introduction Canada’s Competition Bureau (‘the Bureau’), which assists the Commissioner of Competition (‘the Commissioner’) in the administration and enforcement of the Competition Act (‘the Act’), announced on 7 January 2021 that the Commissioner closed the investigation into Postmedia Network (...)

The Paris Court of Appeal finds a significant imbalance in the long-term contractual relationship between the French incumbent parcel delivery operator and one of its clients (La Poste / Central Optics)
University Paris Saclay (Paris)
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University Paris Saclay (Paris)
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University Paris Saclay (Paris)
Introduction In its ruling of the 7th January 2021, the Paris Court of Appeal applied the concept of "significant imbalance" in its anterior version now contained in Article L442-1 of the french commercial code. The notion of significant imbalance originates in consumer law and was extended to (...)

The Italian Supreme Administrative Court upholds the lower court’s annulment of the Competition Authority’s decision to fine broadcasters for an alleged anti-competitive agreement in the pay-TV service sector (League / Infront / Sky / Mediaset)
Ashurst (Brussels)
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Ashurst (Milan)
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Ashurst (Brussels)
On 12 December 2020, Italy’s highest administrative court, the Council of State, upheld the annulment of the Italian Competition Authority’s ("ICA") decision to fine broadcasters Mediaset and Sky Italia, the Italian Football League, and marketing agency Infront a total of €66m for an alleged (...)

The Indian Competition Authority closes investigation against an alleged phenol importers cartel after not finding evidence with 12 out of 19 parties which account for 95% of the market (Deepak Phenolics / Chemtrade Overseas / Shubham Chemicals & Solvents)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
Key points To conduct an investigation in a time bound manner, out of the 19 phenol importers, the DG investigated 12 that accounted for 95% of the total sales volume of phenol. In the absence of any evidence indicating an agreement or meeting of minds amongst the phenol importers, a mere (...)

The Indian Competition Authority dismisses allegations of bid rigging against an aluminium and copper manufacturer (Hindalco / Vedanta)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
Key points While the standard of evidence required to be provided by an informant is not very high, however, the CCI’s resources cannot be used to further open-ended bald allegations in an omnibus manner which do not further the public cause. In the absence of any material showing even prima (...)

The Indian Competition Authority dismisses cartel allegations against 19 importers of phenol on account of absent conclusive evidence to establish collusion (Sachin Chemicals / Deepak Phenolics / Chokshi Chem / Chemtrade Overseas / Yug...)
Trilegal (Mumbai)
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Trilegal (Mumbai)
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The Competition Commission of India (CCI) dismissed allegations of cartelization against 19 importers of phenol, on account of absence of conclusive evidence to establish collusion. The CCI held that mere price parallelism does not amount to cartelisation and closed the case. Significantly, the (...)

The EU General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by several French undertakings in the distribution sector (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
General Court of the European Union (Luxembourg)
The General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by a number of French undertakings in the distribution sector* The Commission has failed to show that it had sufficiently strong evidence to suspect exchanges of information (...)

The EU General Court partially annuls the Commission’s decision authorizing unannounced dawn raids to be carried out at the headquarters of two French food retail chains (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Dechert (Paris)
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Magenta (Paris)
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Dechert (Paris)
In three recent judgments issued on 5 October 2020, the General Court of the European Union ("GCEU") partially annulled the European Commission’s ("Commission") decisions of February 2017 which had authorized onsite unannounced inspections ("dawn raid”) to be carried out at the headquarters of (...)

The EU General Court partially annuls decisions ordering dawn raids at the headquarters of two French food retail chains (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Covington & Burling (Brussels)
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Gide Loyrette Nouel (Paris)
In three related judgments of October 5, 2020 (T-249/17, T-254/17 and T-255/17) the General Court (the “GC”) partially annulled European Commission inspection decisions which were the basis for dawn raids on several French retailers. The judgments further develop the position adopted in Czech (...)

The EU General Court partially annuls the decisions of the Commission to order dawn raids on a number of French retailers (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
White & Case (Brussels)
Partial annulment of European Commission decisions to order dawn raid inspections* On 5 October 2020, the General Court of the European Union (GC) partially annulled decisions of the European Commission (EC) to order on-the-spot inspections (dawn raids) of a number of French retailers.. The (...)

The EU General Court partially annuls the Commission’s inspection decisions ordering several French undertakings active in the distribution sector to submit to dawn-raid inspections (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Bird & Bird (Rome)
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Luiss Guido Carli University (Rome)
In October 2020, the General Court of the European Union (GC) issued an important decision in the joined Casino cases which promises to ensure that competition investigations will be more robust and afford greater protection to companies‘ rights. Both the European Commission (EC) and companies (...)

The EU General Court partially annuls the Commission’s decision ordering inspections at French food retail chains headquarters (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
Addleshaw Goddard
On 5 October 2020, the EU General Court ("GC") partially annulled European Commission ("Commission") decisions ordering inspections at ITM and Casino’s premises in 2017 following suspicions of illegal anticompetitive exchanges of competitively sensitive information. WHAT YOU NEED TO KNOW - KEY (...)

The German District Court of Dortmund implements the Kühnen approach to private enforcement in practice and estimates the cartel overcharge to be at least 15% for a rail sector cartel (Rail Cartel)
Spieker & Jaeger (Dortmund)
The esteemed (former) chief judge of the First Senate of the Düsseldorf Higher Regional Court (‘Oberlandesgericht’), Jürgen Kühnen, in 2019 provided ample arguments for an estimation of damages in Private Law. The District Court (‘Landgericht’) of Dortmund implemented Kühnen’s approach in practice. (...)

The German Federal Court of Justice rules on a damages claim following a Commission decision sanctioning a cartel of truck manufacturers (Trucks cartel)
Ashurst (Munich)
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Ashurst (Frankfurt)
In a decision of 23 September 2020, published early January 2021, the German Federal Court of Justice ("BGH") rejected a follow-on damages claim filed against Daimler in relation to the European Commission’s ("Commission") Trucks decision. This is the first time that the highest German civil (...)

The Indian Competition Authority dismisses allegations of anticompetitive conduct and abuse of dominance against an information technology company in public procurement by the Ministry of Railways due to lack of evidence (Sowil / Hexagon Geosystems India)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS In the absence of any material on record which can suggest collusion, no case of anti-competitive agreement can be made out. In addition, for a case of abuse of dominance, one must take into consideration the market structure and the number of major players including, global players (...)

The Indian Competition Authority reaffirms that prescribing eligibility criteria in tenders is not anticompetitive (Sandeep Mishra / National Highways Authority of India)
Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
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Shardul Amarchand Mangaldas (New Delhi)
In dismissing a complaint at prima facie stage against the National Highways Authority of India (NHAI), [1] the CCI reaffirmed that the prescription of eligibility criteria by a procurer/buyer of a product or service will not, unless demonstrably unfair or discriminatory, be regarded as (...)

The UK Supreme Court finds that payment card schemes used in supermarkets infringe competition law (Sainsbury’s / Visa / MasterCard)
Morgan Lewis (London)
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Morgan Lewis (London)
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Morgan Lewis (London)
On June 17, 2020, the UK Supreme Court handed down its judgment in the appeals on the lawfulness of multilateral interchange fees, or swipe fees, (MIFs) in Sainsbury’s Supermarkets Ltd (Respondent) v. Visa Europe Services LLC and Others (Appellants) and Sainsbury’s Supermarkets Ltd and Others (...)

The UK Supreme Court gives an important judgment in the litigation regarding two payment platform providers’ interchange fees (Sainsbury’s / Visa / Mastercard)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
Introduction The U.K. Supreme Court has handed victory to a group of British retailers (the “respondents”) in a long-running dispute with Mastercard and Visa Europe (the “appellants”) finding that the default “multilateral interchange fees” (MIFs) set by Mastercard and Visa and charged by (...)

The UK Supreme Court dismisses an appeal concerning the two largest payment processing networks on the basis that their multilateral interchange fees restricted competition (Sainsbury’s / Visa / MasterCard)
Van Bael & Bellis (Brussels)
On 17 June 2020, the UK Supreme Court dismissed Mastercard and Visa’s appeal against a 2018 ruling by the Court of Appeal of England and Wales and ruled that their multilateral interchange fees (“MIFs”) unlawfully restricted competition. The Supreme Court’s ruling potentially exposes Mastercard and (...)

The UK Supreme Court hands down its judgment on an appeal relating to competition damage claims brought by retailers against two payment platform providers (Sainsbury’s / Visa / Mastercard)
Frontier Economics (London)
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Frontier Economics (London)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The UK Supreme Court recently handed down its judgment on appeals relating to competition damages claims brought by Sainsbury’s and other retailers against (...)

The UK Supreme Court dismisses the two largest payment processing networks’ arguments on the basis that their multilateral interchange fees restricted competition but upholds grounds of appeal concerning the application of the “passing on” defense (Sainsbury’s / Visa / MasterCard)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
On 17 June 2020, the Supreme Court handed down a much anticipated judgment concerning the default multilateral interchange fees (MIFs) set by Mastercard and Visa (together, the Appellants). The case considered appeals relating to three separate damages actions brought by retailers against the (...)

The UK Supreme Court finds a competition law infringement caused by payment card schemes used in supermarkets (Sainsbury’s / Visa & MasterCard)
Hausfeld (London)
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Hausfeld (London)
The UK Supreme Court recently handed down its eagerly anticipated Judgment in respect of unlawful interchange fee claims against MasterCard and VISA, following almost a decade of litigation. The Judgment provides welcome clarity to merchant retailers as to the unlawfulness of MasterCard’s and (...)

The UK Supreme Court confirms that two payment platform providers’ fees restricted competition (Visa / MasterCard)
Slaughter and May (London)
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Slaughter and May (Brussels)
This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 17 June 2020, the Supreme Court unanimously upheld an earlier Court of Appeal ruling that Mastercard and Visa’s multilateral interchange fees (MIFs) restricted (...)

The Irish Competition Authority concludes an examination of the beef industry following complaints without going into a full investigation due to the lack of evidence proving complainants’ claims
Irish Competition Authority (Dublin)
CCPC Concludes Examination of Beef Industry Complaints* The Competition and Consumer Protection Commission (CCPC) has today written to over 200 individuals, including the Independent Farmers of Ireland, the Beef Plan Movement, and the Irish Farmers Association, regarding the outcome of an (...)

The EU Court of Justice partially quashes the General Court’s decision and reduces the fines on eleven producers of high voltage power cables for their participation in a global market-sharing cartel (NKT)
Ashurst (Brussels)
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Ashurst (Brussels)
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Ashurst (Brussels)
On 14 May 2020, the European Court of Justice (the "ECJ") partially quashed the General Court’s (the "GC") judgment upholding the European Commission’s ("Commission") power cables cartel decision with respect to NKT and its wholly owned subsidiary NKT Verwaltungs (together "NKT" or the (...)

The EU Court of Justice partially annuls the General Court power cables cartel decision and reduces the fine imposed by €200,000 (NKT)
Van Bael & Bellis (Brussels)
On 14 May 2020, the Court of Justice of the European Union (the “Court of Justice”) partly set aside a judgment of the General Court dismissing the action brought by NKT Verwaltungs GmbH (formerly nkt cables GmbH) and NKT A/S (formerly NKT Holding A/S) (together, “NKT”) in the Power Cables cartel (...)

The French Competition Authority dismisses a TV distribution platform’s allegations of collusion between 2 TV channel owners due to lack of evidence (Molotov / TF1 / M6) Free
French Competition Authority (Paris)
The Autorité de la concurrence dismisses Molotov’s complaint concerning the practices of TF1 and M6 for lack of evidence* Molotov is a television channel distribution platform which aggregates and streams French audiovisual programmes over the top (OTT), i.e. via the Internet. The application (...)

The US Court of Appeals for the Third Circuit overturns a district court decision certifying a class of direct purchaser plaintiffs without undertaking a rigorous analysis to resolve factual disputes, assess competing evidence, or weigh conflicting expert testimony (Lamictal)
McDermott Will & Emery (New York)
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Crowell & Moring (Washington)
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McDermott Will & Emery (Chicago)
The US Court of Appeals for the Third Circuit recently concluded in In re Lamictal Direct Purchaser Antitrust Litigation that a district court’s reliance on average prices to determine class-wide impact was insufficient. Instead, courts must conduct a rigorous analysis of the facts, evidence and (...)

The EU Court of Justice emphasizes the need for a case and context-specific evaluation of ’by object’ restrictions and provides guidance on what sort of evidence is relevant, in a multilateral interchange fee credit card transaction (Budapest Bank)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
I. Introduction On 2 April 2020, the Court of Justice of the European Union ("CJEU") delivered its judgment in Budapest Bank, another key ruling on the assessment of 'by object' restrictions of competition within the meaning of Article 101(1) TFEU. With this judgment, the (...)

The German Federal Court of Justice provides guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases (Schienenkartell II)
Freshfields Bruckhaus Deringer (Berlin)
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European Court of Justice (Luxembourg)
In its judgment of 28 January 2020, the Cartel Senate of the German Federal Court of Justice provided new guidance on the requirements for establishing liability and the assessment of evidence in cartel damages cases. In the initial proceedings, the plaintiff, a local transport company, sought (...)

The Paris Court of Appeal confirms the French Competition’s Authority decision to fine several producers and wholesalers active in the sale of liquid fertilizers for domestic cultivation for imposing vertical restraints (Canna France)
University of Paris I Panthéon-Sorbonne
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Addleshaw Goddard
On 16 January 2020, the Paris Court of Appeal confirmed the 2018 decision of the French Competition Authority ("FCA") to fine several producers and wholesalers active in the sale of liquid fertilizers for domestic cultivation for having imposed vertical restraints. WHAT YOU NEED TO KNOW - KEY (...)

The EU Court of Justice dismisses an appeal seeking to set aside an earlier judgement by the General Court sanctioning a cartel of manufacturers of power cables (Verwaltungs)
ADNOC Group (Abu Dhabi)
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Ashurst (Brussels)
On 14 November 2019, the European Court of Justice ("ECJ") dismissed the appeal in case C-599/18 P brought by Silec Cable ("Silec"), which sought to set aside an earlier judgment by the General Court upholding the European Commission’s ("Commission") power cables decision. WHAT YOU NEED TO KNOW (...)

The UK Court of Appeal slashes a cartel follow-on damages award and emphasises claimants’ burden to prove losses in a claim brought by power cable manufacturers for market-sharing and customer allocating (BritNed / ABB)
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
BritNed Development Limited ("BritNed") brought a claim against ABB arising from the European Commission’s 2014 power cables cartel decision. In October 2018, the High Court found that there had been no overcharge but awarded damages for "baked-in inefficiencies" and "cartel savings" plus simple (...)

The Danish Competition Authority acquits two companies of illegally coordinating prices in the delivery of workwear (Bjerregaard Sikkerhed / Bacher Logistics)
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
On the 24th of September 2019, two Danish companies Bjerregaard Sikkerhed A/S and Bacher Logistics A/S were acquitted by the Danish Competition Authority (DCCA) of illegally coordinating prices and other terms. The case stems from an interministerial procurement of five framework agreements (...)

The Chinese Supreme Court rules that Chinese antitrust authorities do not have to prove the anti-competitive effects of companies’ resale price maintenance conduct (Hainan Yutai Technology Feed)
Hogan Lovells (Shanghai)
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Hogan Lovells (Beijing)
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Hogan Lovells (Beijing)
NEITHER FISH NOR FOWL – CHINA’S SUPREME COURT PROPOSES NEW FRAMEWORK FOR RESALE PRICE MAINTENANCE* In the last week of June 2019, a copy of a ground-breaking court ruling emerged on social media in China – the order by the Supreme People’s Court (SPC) in the case between Yutai Technology Feed (...)

The US FTC concludes that a pharma company entered into an illegal pay-for-delay agreement (Endo / Impax)
Hausfeld (Philadelphia)
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Hausfeld (Washington)
On March 28, 2019, the Federal Trade Commission (the “Commission”) issued a landmark opinion in the agency’s case against Impax Laboratories Inc. regarding its patent settlement with Endo Pharmaceuticals Inc., marking the first time that the Commission has weighed in on the proper application of (...)

The Italian Government confirms that the Italian Competition Authority wrongly established a bid-rigging practice in the medical sector (Alliance / Siemens / Philips / Toshiba / AGCM)
Giannino SI (Monserrato)
By its recent judgment in Magnetic Resonance Imaging Scanners (MRI Scanners) the Italian Council of State uphold on appeal the judgement previously handed down by the Regional Administrative Court of Latium (TAR Latium). The TAR Latium set aside a decision made by the Italian Competition (...)

The German Federal Court of Justice decides that in a quota-fixing and customer-assigning cartel, the prerequisites for prima facie evidence to establish whether the cartel has inflicted damage and whether it has affected individual orders are not fulfilled (Rail cartel)
Noerr (Berlin)
German Federal Court of Justice: no double prima facie evidence in cartel damages litigation* In a landmark ruling dated 11 December 2018 (KZR 26/17 – “rail cartel”), the German Federal Court of Justice decided that, in a quota-fixing and customer-assigning cartel, the prerequisites for prima (...)

The U.S. Court of Appeals for the Second Circuit affirms a grant of summary judgment in favor of defendants in an old case alleging an unlawful conspiracy in the single-copy magazine industry (Anderson News)
Dechert (Philadelphia)
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Dechert (Philadelphia)
The U.S. Court of Appeals for the Second Circuit affirmed a grant of summary judgment on July 19, 2018, in favor of defendants in a nearly decade-old case alleging an unlawful conspiracy in the single-copy magazine industry. The decision clarifies the application of the Supreme Court’s (...)

The Indian Competition Authority fines the state chemists’ association and 3 pharma companies for the anticompetitive practice of "No Objection Certificates" prior to the appointment of stockists (Alis Medical Agency / Federation of Gujarat State Chemists & Druggists Associations)
Vaish Associates Advocates (New Delhi)
CCI imposes penalties on the Chemists’ Associations in State of Gujarat and three pharma companies for indulging in practice of “No Objection Certificate” before appointment of stockists* The Competition Commission of India (“CCI”) by way of an order dated 12 July 2018 has imposed penalty on the (...)

The Tenth Administrative Court of Ankara annuls the decision of the Turkish Competition Authority in a case regarding concerted practices between cement producers because the standard of proof was not met (GOLTAS Cement)
ACTECON (Istanbul)
The Turkish Competition Authority (“TCA”) had found that six cement producers operating in the Aegean Region of Turkey entered into a concerted practice to allocate certain geographical regions amongst themselves and to collectively raise the prices of cement products during the time period (...)

Unilateral Practices

The EU General Court annuls the Commission’s decision that a semiconductor chip manufacturer had abused its dominant position and the Commission’s imposition of a €1.06 billion fine (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 January 26, 2022, the EU General Court (the Court) annulled the European Commission’s (the Commission) decision that Intel had abused its dominant position regarding its x86 central processing unit (CPU) computer chips and the imposition of a €1.06 billion fine. The judgment demonstrates that (...)

The EU General Court annuls in part the Commission’s decision imposing a fine of €1.06 billion on the world’s largest semiconductor chip manufacturer (Intel)
General Court of the European Union (Luxembourg)
The General Court annuls in part the Commission decision imposing a fine of € 1.06 billion on Intel* The Commission’s analysis is incomplete and does not make it possible to establish to the requisite legal standard that the rebates at issue were capable of having, or likely to have, (...)

The EU Court of Justice annuls a Commission’s landmark decision fining a semiconductor company €1.06 billion for abuse of dominant position (Intel)
Jones Day (Brussels)
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Jones Day (Frankfurt)
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Jones Day (Brussels)
The EU General Court ("GC") annulled the European Commission’s €1.06 billion antitrust fine imposed on Intel in 2009 for allegedly abusing its dominant position in x86 Central Processing Units ("CPUs") by offering loyalty rebates to customers, excluding competitors such as AMD. The GC held that (...)

The EU General Court partially annuls the Commission’s decision to impose a €1.06 billion fine on a semiconductor chip manufacturer for its abuse of dominant position (Intel)
Ashurst (London)
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Ashurst (London)
On 26 January 2022, the General Court ("GC") partially annulled the European Commission’s decision to impose a EUR 1.06 billion fine on Intel for abusing its dominant position ("Decision"). The fine was annulled in full. Applying the principles outlined in the European Court of Justice’s ("ECJ") (...)

The EU Court of Justice AG Rantos suggests to the Court criteria to qualify abusive exploitation for a dominant position involving exclusionary practices (Servizio Elettrico Nazionale)
ACTECON (Istanbul)
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ACTECON (Istanbul)
Introduction: In recent weeks, highly praised opinion ("Opinion”) of the Advocate General Rantos, which was originally published in French, is released in English. In this article, we summarized the opinion of the Advocate General in four short sections and, supplemented each section with the (...)

The US District Court for the District of Columbia grants motions to dismiss two parallel antitrust complaints filed by the FTC and a group of State AGs against a social media company for monopolization, with the FTC being allowed to file an amended complaint in 30 days (Facebook)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On June 28, 2021, Judge James E. Boasberg of the U.S. District Court for the District of Columbia granted Facebook’s motions to dismiss two parallel antitrust complaints filed by the Federal Trade Commission (FTC) and a group of state enforcers. The complaints accused Facebook of illegally (...)

The French Competition Authority rejects a TV broadcaster’s complaint against the national football league’s awarding of broadcasting rights due to insufficient evidence (Canal Plus / Ligue de Football Professionnel)
French Competition Authority (Paris)
Reawarding of the football Ligue 1’s TV rights: The Autorité de la concurrence rejects Canal + Group’s complaint against the LFP, for lack of sufficient evidence* Background On 29 January 2021, Canal Plus Group ("GCP") referred practices allegedly implemented by the Ligue de Football (...)

The Dutch Trade and Industry Appeals Tribunal upholds the annulment of the nearly €41 million abuse of dominance fine imposed by the Competition Authority against a railway company (Nederlandse Spoorwegen)
KPN (Amsterdam)
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Bird & Bird (The Hague)
On 1 June 2021 the Dutch Trade and Industry Appeals Tribunal (“CBb”), which is the highest administrative court in the Netherlands, upheld the annulment of the nearly € 41 million abuse of dominance fine imposed by the Authority for Consumers and Markets (“ACM”, the Dutch competition authority) on (...)

The Indian Competition Authority dismisses antitrust complaint against a paint manufacturer because simply filing a criminal complaint against its competitor is not considered abuse of dominance (Asian Paints)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Vahura (Bangalore)
KEY POINTS Filing a criminal complaint against another enterprise in the same sector cannot be said to have been done with a view to oust competition from the relevant market in the absence of any additional evidence to indicate contraventions of Section 3 and/or 4 of the Act. BRIEF FACTS (...)

The French Competition Authority rejects a referral filed by a national karaoke studio for lack of evidence (Singing Studio / Karafun)
French Competition Authority (Paris)
The Autorité de la concurrence rejects the referral filed by Singing Studio in the karaoke sector for lack of evidence* Singing Studio’s complaint Singing Studio, which operates two establishments specialising in karaoke in Lille and Paris, has referred practices implemented by the Karafun (...)

The Australian Government decides that the shipping channel service at a bottleneck port infrastructure will remain unregulated (Port of Newcastle)
Herbert Smith Freehills (Sydney)
In a decision that will be welcomed by many of Australia’s port operators, for the second time in less than two years, the Federal Treasurer has decided that the shipping channel service at the Port of Newcastle should not be regulated. The Treasurer’s decision on 16 February 2021 is in response (...)

The Indian Competition Authority dismisses allegations of cartelization and abuse of dominance by a provider of home loan services (ICICI Bank)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS Existence of large number of players in the home loan market shows that ICICI Bank (“ICICI”) cannot operate independently in the market and, hence cannot be considered to be in a position of dominance in the relevant market. In the absence of any evidence indicating an agreement or (...)

The Indian Competition Authority dismisses allegations of abuse of dominance by a reinsurance company as its client insurance companies retain the freedom to decide their premium rates as well as their reinsurer under national law (Automotive Tyres Manufacturers Association / General Insurance Corporation of India)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS The markets for insurance and reinsurance exist as separate markets and insurance companies have the commercial freedom to price their policies as they deem fit according to the market conditions and decisions taken in the reinsurance market do not place any restriction on insurance (...)

The Luxembourg Administrative Tribunal rules for the first time on the Competition Authority’s competence in matters of ex post control of concentrations in the energy sector (Fédération des Artisans / Encevo / Enovos Luxembourg / Paul Wagner / Fils)
Bonn & Schmitt (Luxembourg)
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Professional training school for the bars - Ecole de Formation du Barreau (Paris)
I. Introduction On January 25, 2021 the Administrative Tribunal of the Grand Duchy of Luxembourg (hereinafter the “Administrative Tribunal”) rendered a judgment ruling for the first time on the competence of the Competition Council of the Grand Duchy of Luxembourg (hereinafter the “Competition (...)

The German Parliament passes the 10th amendment to the Restraints of Competition Act which provides modifications and changes regarding abuse control
Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
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Hogan Lovells (Dusseldorf)
On 14 January 2021, the German parliament passed the long-awaited 10th amendment to the Act against Restraints of Competition (ARC). This came after the governing parties, CDU/CSU and SPD, had submitted a final amendment "at the eleventh hour" which provided for some additional modifications (...)

The Turkish Administrative Court issues noteworthy judgements setting standard of proof for abuse of dominance (Sahibinden.com) (Enerjisa)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
In 2019 and 2020, Turkish administrative courts handed down noteworthy judgments concerning two particular decisions of the Turkish Competition Board (“Board”). In both of these cases, namely the (i) Sahibinden Bilgi Teknolojileri Pazarlama ve Tic. A.Ş. (“Sahibinden”) judgment rendered by the Ankara (...)

The Belgian Competition Authority imposes interim measures requested by a football club following an appeal judgment (Virton / RBFA)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 19 November 2020, the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence - the BCA) imposed interim measures on the Royal Belgian Football Association (the RBFA) at the (...)

The Brussels Court of Appeal annuls the Competition Authority’s decision rejecting a football club’s request for interim measures (Virton / RBFA) Free
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment delivered on 19 November 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) annulled the decision adopted on 29 June 2020 by the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition (...)

The Belgian Competition Authority rules that a national football association’s conditions to obtain a professional license are prima facie incompatible with competition law and orders interim measures (Virton / RBFA)
University of Liège
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Tribunal de l’Entreprise (Tongeren)
On 19 November 2020, the Belgian Competition Authority (“BCA”) ordered interim measures against the Royal Belgian Football Association (“RBFA”) following a request filed by the professional football club Royal Excelsior Virton (“RE Virton”). The BCA considered that the RBFA’s refusal to grant a (...)

The EU General Court confirms the Commission’s decision finding that a national rail company abused its dominant position on the market (Lietuvos geležinkelai)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
The Factors Affecting the Use of Essential Facilities Doctrine in Light of the Lithuanian Railway v Commission Decision: A Comparison with the Turkish Practice and Potential Implications 1) Introduction On November 18, 2020, the General Court of the European Union (“General Court”) upheld the (...)

The Indian Competition Authority launches an investigation into allegations of abuse of dominance by a Big Tech company in the Android app store market (Google)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
KEY POINTS Even in cases where an information is filed anonymously before the Competition Commission of India (“CCI”), it is within the powers of the Director General (“DG”) to cross-examine the informant; Googles’ market position in the android app market provides it with a significant market (...)

The US DoJ files an antitrust complaint against a search engine for abuse of dominance (Google)
Orrick, Herrington & Sutcliffe (Washington DC)
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Orrick, Herrington & Sutcliffe (Washington DC)
On October 20, the U.S. Department of Justice filed its long-awaited antitrust complaint against Google, joined by 11 state Attorneys General (Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, and Texas). The lawsuit was filed in the U.S. (...)

The German Federal Court of Justice rules on the burden of proof for showing exhaustion of trademark right (Amazon / Coty)
Van Bael & Bellis (Brussels)
On 15 October 2020, the German Federal Court of Justice (“FCJ”) issued a judgment on the burden of proof for showing the exhaustion of trademark rights in a case pitting Coty against Amazon. After having made a test purchase from Amazon of two bottles of a perfume bearing the “JOOP!” trademark on (...)

The Turkish Administrative Court upholds the fines imposed by the Competition Authority on two electricity sales companies for abuse of dominance (Rescs / Ayedas)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
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ELIG Gürkaynak Attorneys-at-Law (Istanbul)
(1) Introduction In 2018, in its Enerjisa decision, the Turkish Competition Board (“ Board ”) had imposed administrative fines amounting to a total of TRY 143 million on three retail electricity sales companies (namely AYESAŞ, BAŞKENT and TOROSLAR) (together, the “ RESCs ”) and one electricity (...)

The US Court of Appeals for the Ninth Circuit strikes down a sweeping injunction against a semiconductor company and reins in an expansive interpretation of the Sherman Act (Qualcomm)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
On August 11, 2020, the U.S. Court of Appeals for the Ninth Circuit decisively reversed the Federal Trade Commission’s (FTC or Commission) controversial district court win challenging Qualcomm’s licensing practices. In rejecting every aspect of the lower court’s decision, the Ninth Circuit panel (...)

The US Court of Appeals for the Ninth Circuit overturns a ruling finding that a semiconductor company’s licensing practice abused its dominant position (Qualcomm)
Hogan Lovells (Washington)
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Hogan Lovells (Washington)
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United States Senate (Washington)
On 11 August 2020, a panel of the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”), in a unanimous opinion by Judge Callahan, reversed the U.S. Federal Trade Commission’s (“FTC’s”) win in the district court against Qualcomm Inc. (“Qualcomm”) and upheld Qualcomm’s licensing practices, (...)

The Italian Supreme Administrative Court refers to the EU Court of Justice questions concerning the interpretation and application of Art. 102 TFEU following an abuse of dominance in the electricity market (Enel)
Luiss Guido Carli University (Rome)
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Bird & Bird (Rome)
On 20 July, the Italian Supreme Administrative Court (Consiglio di Stato, CDS) referred to the Court of Justice (CJ) several questions concerning the interpretation and application of Article 102 TFEU. In the context of the dispute following the Italian Competition Authority’s decision to (...)

The German Federal Court of Justice confirms abuse of dominance over data collection by an online platform without the user’s explicit consent (Facebook)
Bird & Bird (Dusseldorf)
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Bird & Bird (Dusseldorf)
The Federal Court of Justice (FCJ) rejected Facebook’s application for suspensive effect in connection to its appeal to the Higher Regional Court of Düsseldorf against the decision of the Federal Cartel Office (FCO) prohibiting Facebook from collecting and processing Facebook users’ data generated (...)

The German Federal Court of Justice provisionally confirms an allegation against a social media company for abusing its dominant position (Facebook)
German Competition Authority (Bonn)
Federal Court of Justice provisionally confirms allegation of Facebook abusing dominant position* Facebook uses terms of service that also allow for the processing and use of user data that are collected online outside the Facebook platform. The Bundeskartellamt prohibited Facebook from (...)

The German Federal Court of Justice preliminarily confirms that an online platform abused its dominant position on the national market of social networks (Facebook)
Van Bael & Bellis (Brussels)
On 23 June 2020, the German Federal Court of Justice (“FCJ”), in summary proceedings, preliminarily confirmed the finding of the Federal Cartel Office (“FCO”) that Facebook had abused its dominant position. It overturned the decision of the Higher Regional Court of Düsseldorf that had suspended the (...)

The German Federal Court of Justice overturns the Dusseldorf Court of Appeals’ interim decision and finds an online social media platform to have abused its power in collecting data from different sources (Facebook)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Cologne)
On June 23, 2020, the Federal Court of Justice (“FCJ”) overturned the Düsseldorf Court of Appeals’ (“DCA”) interim decision and rejected Facebook Inc.’s (“Facebook”) request to suspend the enforceability of the Federal Cartel Office’s (“FCO”) prohibition decision. The FCJ disagreed with the FCO’s (...)

The Dutch Trade and Industry Appeals Tribunal quashes the Competition Authority’s finding of a joint dominance in the retail broadband market (KPN / VodafoneZiggo / T-Mobile / Tele2)
Oxera (London)
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Oxera (London)
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Oxera (Amsterdam)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (CBb) published its long-awaited verdict on the appeal against the Netherlands Authority for Consumers and Markets (ACM) 2018 finding of joint dominance in the Dutch retail broadband market. Why did the CBb rule in favour of the (...)

The Dutch Trade and Industry Appeals Tribunal reverses a decision of the Competition Authority requiring telecom providers to open up their fixed networks in the Netherlands to other providers (KPN / VodafoneZiggo / T-Mobile / Tele2)
KPN (Amsterdam)
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Bird & Bird (The Hague)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“CBb”) reversed the 2018 decision of the Authority for Consumers and Markets (“ACM”) requiring telecom providers KPN and VodafoneZiggo to open up their fixed networks in the Netherlands to other providers. In September 2018, the ACM (...)

The Dutch Trade and Industry Appeals Tribunal annuls the Competition Authority decision requiring telecommunications providers to open networks (KPN / VodafoneZiggo / T-Mobile / Tele2)
Van Bael & Bellis (Brussels)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“Appeals Tribunal”) reversed a decision of the Authority for Consumers & Markets (“ACM”) which required telecommunications provider KPN and cable provider VodafoneZiggo to open their fixed networks to other providers. On 27 (...)

The Indian National Company Law Appellate Tribunal upholds the Competition Authority’s decision that a company mandating a party to sign an agreement containing unfair and restrictive clauses is tantamount to abuse of its dominance (Verifone)
Supreme Court of India (New Delhi)
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Supreme Court of India (New Delhi)
Introduction The National Company Law Appellate Tribunal (NCLAT) by way of its common order dated 13 March 2020 dismissed two appeals preferred by M/s Verifone India Sales Pvt Ltd. (Appellant/ OP 1/ Verifone) against two separate orders passed by the Competition Commission of India (CCI). (...)

The UK Court of Appeal of England and Wales dismisses the Competition Authority’s appeal against a ruling quashing the fines imposed on two pharmaceutical companies for charging excessive and unfair prices for an anti-epilepsy drug (Pfizer / Flynn)
Van Bael & Bellis (Brussels)
On 10 March 2020, the UK’s Court of Appeal dismissed the Competition and Market Authority’s (“CMA”) appeal against a 2018 ruling by the Competition Appeals Tribunal (“CAT”) that quashed the CMA’s 2016 fine imposed on Pfizer and Flynn for charging excessive and unfair prices for phenytoin sodium (an (...)

The UK Court of Appeal of England & Wales provides guidance on the legal test for excessive and unfair pricing after finding that an undertaking is charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Covington & Burling (Brussels)
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Latham & Watkins (Brussels)
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Norton Rose Fulbright (Brussels)
Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of Appeal recently provided guidance regarding the legal test to determine whether (...)

The UK Court of Appeal of England and Wales provides guidance regarding the legal test to determine whether pricing is excessive and unfair in the pharmaceutical market (Pfizer / Flynn)
Norton Rose Fulbright (Brussels)
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Latham & Watkins (Brussels)
The UK Court of Appeal Clarifies the Legal Test for Excessive Pricing* Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of Appeal (...)

The UK Court of Appeal of England and Wales seeks to reinstate record fines imposed on pharmaceutical companies for abuse of dominant position through excessive and unfair pricing of an anti-epilepsy drug (Pfizer / Flynn)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
On 10 March 2020 the UK Court of Appeal handed down its hotly anticipated judgment in Flynn Pharma Limited & Anr vs Competition and Markets Authority. The UK Competition and Markets Authority (CMA) was seeking to reinstate record fines totalling £89.4m imposed on pharmaceutical companies (...)

The UK Court of Appeal of England and Wales imposes agency discretion in the methodology to establish the unfairness of prices, thereby increasing the burden of proof on companies to avoid a finding of excessive pricing (Pfizer / Flynn)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
The UK Court of Appeal Overturns the CAT & Imposes Agency Discretion on Excessive Price Benchmark* On March 10, 2020, the England and Wales Court of Appeal (CoA) handed down a significant ruling that reintroduces agency discretion in the methodology used to establish the unfairness of (...)

The UK Court of Appeal of England and Wales considers the test for excessive pricing after an undertaking had charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Bristows (London)
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Bristows (London)
Introduction In December 2016, the UK’s Competition and Markets Authority (CMA) found that Pfizer and Flynn had charged unfairly high prices for phenytoin sodium capsules, an important anti-epilepsy drug, in breach of competition law. The CMA imposed fines totalling £90 million. Pfizer and Flynn (...)

The UK Court of Appeal of England and Wales upholds the Competition Appeal Tribunal’s quashing of the Competition Authority’s decision against pharmaceutical undertakings who had allegedly abused their dominant position by pricing their epilepsy drug unfairly (Pfizer / Flynn)
White & Case (Brussels)
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White & Case (Brussels)
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Hausfeld (London)
On 10 March 2020 the Court of Appeal upheld the Competition Appeal Tribunal’s (CAT) quashing of the Competition and Markets Authority’s (CMA) decision that Pfizer and Flynn Pharma (Flynn) had abused their dominant positions in the market by pricing their epilepsy drug unfairly. Among other (...)

The Indian National Company Law Appellate Tribunal overrules the Competition Authority’s order in an abuse of dominance case in the e-commerce sector (All India Online Vendors Association / Flipkart India)
Vaish Associates Advocates (New Delhi)
NCLAT directs investigation into alleged abuse of dominant position by Flipkart -Quashes earlier CCI order closing the case* By a recent judgment dated 04.03.2020, the Hon’ble National Company Appellate Tribunal (“NCLAT”) has set aside the order dated 06.11.2018 passed by the Competition (...)

The Turkish Competition Authority imposes fines totaling €13 million on a Big Tech company for excluding its competitors in shopping comparison services (Google)
Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
On May 27, 2020, the Turkish Competition Authority (“TCA”) published its Google Shopping Decision (13.02.2020, 20-10/119-69) whereby it imposed an administrative fine amounting to approx. EUR 13 million on Google for hindering the activities of its competitors in the “shopping comparison services (...)

The Turkish Competition Authority publishes its first investigation concerning abuse of dominance by a standard-essential patent holder (Philips)
Balcıoğlu Selçuk Akman Keki (BASEAK) (Istanbul)
Turkish Competition Authority’s (“TCA”) Philips Decision (26.12.2019, 19-46/790-344 – published on 27.05.2020) is quite significant as it is the first time that the TCA examined the conducts of a Standard Essential Patent (“SEP”) holder within the scope of Article 6 of the Act No. 4054 on the (...)

The Turkish Administrative Court annuls the fines imposed by the Competition Authority due to failure to establish the required standards for competition law infringement in excessive pricing cases (Sahibinden.com)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
This case note analyses Ankara 6th Administrative Court’s (the “Administrative Court”) annulment judgment (18.12.2019; 2019/946 E., 2019/2625 K.) through which the Administrative Court reviewed the Turkish Competition Board’s (the “Board”) decision dated 01.10.2018 and numbered 18-36/584-285, (...)

The Turkish Administrative Court annuls a Competition Authority’s decision assessing excessive pricing in the online market and provides guidance on the standard of proof to be followed by the Authority (Sahibinden.com)
ACTECON (Istanbul)
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ACTECON (Istanbul)
The standard of proof plays a significant role during the process of the investigations performed within the framework of the competition law. However, no explicit provision regarding the standard of proof which shall be taken as basis in the preliminary and full-fledged investigations carried (...)

The Paris Court of Appeal clarifies the relevant test for characterizing an excessive price in the market of waste disposal for hospitals and clinics in Corsica (Sanicorse)
Dechert (Paris)
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Dechert (Paris)
On 14 November 2019, the Paris Court of Appeal (the “Court”) quashed a decision of the French Competition Authority (“FCA”) of 20 September 2018 in which the latter had imposed € 199 000 fine on Sanicorse for having abused its dominant position on the market for infectious clinical waste (“ICW”) (...)

The UK Competition Appeal Tribunal upholds the Ofcom’s fine against a company for price discrimination (Royal Mail / Whistl)
Van Bael & Bellis (Brussels)
The UK’s Competition Appeal Tribunal upholds the Ofcom’s record £50 million fine against Royal Mail for price discrimination against Whistl, a competitor in the market for the processing of bulk mail.On 12 November 2019, the UK’s Competition Appeal Tribunal (CAT) upheld the UK communication (...)

The UK Competition Appeal Tribunal considers what constitutes abusive conduct and the use of expert economic advice and clarifies what the "as-efficient competitor test" entails (Royal Mail / Whistl)
Latham & Watkins (London)
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Latham & Watkins (Brussels)
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Latham & Watkins (London)
UK COMPETITION APPEAL TRIBUNAL JUDGMENT: PUSHING THE ENVELOPE ON ABUSE OF DOMINANCE* The CAT’s Royal Mail v Ofcom judgment considers what constitutes abusive conduct, the “as-efficient competitor” test, and the use of expert economic advice. On 12 November 2019, the UK Competition Appeal (...)

The UK Competition Appeal Tribunal upholds the Ofcom’s decision for abuse of dominance and discriminatory pricing strategy in the mail delivery service market (Royal Mail / Whistl)
Bird & Bird (London)
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Bird & Bird (London)
On 12 November 2019, the Competition Appeal Tribunal ("Tribunal") upheld Ofcom’s decision against Royal Mail Plc (Royal Mail), finding Royal Mail’s pricing strategy in relation to bulk mail delivery services to be discriminatory and an abuse of dominance. Royal Mail first announced the (...)

The UK Competition Appeal Tribunal upholds a fine totaling £50 million to the national post office for abusing its dominant position by announcing price changes (Royal Mail / Whistl)
Ashurst (London)
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Ashurst (London)
On 12 November 2019, the UK Competition Appeal Tribunal ("CAT") upheld Ofcom’s decision to fine Royal Mail £50 million for abusing a dominant position by announcing price changes. Royal Mail has announced that it is seeking permission to appeal to the Court of Appeal. WHAT YOU NEED TO KNOW - KEY (...)

The EU Commission imposes interim measures on a chipmaking company suspected of having put in place contractual restrictions to exclude its competitors from the market (Broadcom)
Orrick, Herrington & Sutcliffe (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
On June 26, 2019, the EU Commission opened a formal investigation into U.S. chipmaker Broadcom’s alleged abuse of dominance. In a rather unexpected move, the EU Commission informed the company, on the same day, of its intention to impose interim measures, a long-forgotten tool. Broadcom, which (...)

The Danish Competition Appeals Tribunal confirms that a company abuses its dominance by using conditional rebates and exclusivity provisions in the payment card sector (Teller)
Danish Competition and Consumer Authority (Copenhagen)
The Danish Competition Appeals Tribunal confirms that Teller (now Nets) abused its dominant position by using rebates conditional on exclusivity and exclusivity provisions* The Danish Competition Appeals Tribunal (DCAT) confirmed the 18th of September 2019 the ruling by the Danish Competition (...)

The French Competition Authority rejects the complaint of a petroleum company alleging a refusal to supply services by a competitor (CCIRPP / SRPP)
French Competition Authority (Paris)
Under the terms of this Decision, the Competition Authority rejects the referral of the case against the Coopérative Carburant d’Intérêt Régional Public Privé (CCIRPP) on the grounds of lack of sufficient evidence and, consequently, the request for interim protective measures ancillary to its (...)

The Paris Court of Appeal upholds the decision of the Competition Authority to fine a pharma company for abuse of dominance (Jansson-Cilag / Johnson & Johnson)
Dechert (Paris)
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Dechert (Paris)
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Willkie Farr & Gallagher (Paris)
More particularly, the Court affirmed the FCA’s conclusion that Janssen infringed competition law by, on the one hand, disparaging competing fentanyl specialties towards health professionals, emphasizing the risks associated with a switch from Durogesic© to a generic version and, on the other (...)

The US Court of Appeals for the Third Circuit affirms bench trial’s decision in a rare price discrimination suit (Spartan Concrete Products / Argos USVI)
Hausfeld (New York)
Robinson-Patman Act decisions are rare. This often is because legitimate complaints against a supplier providing favorable pricing to a complaining customer’s competitors either are settled out of court or prior to a decision on the merits. So it is of interest when a price discrimination suit (...)

The US Court of Appeals for the Third Circuit affirms directed verdict following a rare price discrimination trial (Spartan Concrete Products / Argos USVI)
Jones Day (Washington)
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Jones Day (Cleveland)
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Jones Day (Washington)
Failure to show antitrust injury proved fatal to price discrimination claims as the Third Circuit affirmed a directed verdict in favor of cement company, Argos USVI, in a case brought by its customer, ready-mix concrete company Spartan Concrete Products ("Spartan"). This decision highlights (...)

The Turkish Competition Authority fines a company for resale price maintenance after the Council of State annulled its first decision finding no infringement regarding prepaid card prices (Turkcell II)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
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Kia (Frankfurt)
The Turkish Competition Board published its reasoned decision on an additional investigation on whether Turkcell İletişim Hizmetleri A.Ş. has violated the Law No. 4054 on the Protection of Competition through resale price maintenance and exclusivity practices (19-03/23-10; 10.01.2019). The (...)

The Spanish Supreme Court confirms the annulment of a €120 million fine imposed by the Competition Authority against three mobile operators for abuse of dominance in wholesale markets for termination of SMS and MMS (Telefónica / Vodafone / Orange)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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European Court of Justice (Luxembourg)
In three judgments delivered in December 2018 and January 2019, the Spanish Supreme Court confirmed the annulment of fines amounting to a total of €120 million imposed on the three main telecoms operators in Spain (i.e., Telefónica, Vodafone and Orange) for abuse of dominance in the wholesale (...)

The Indian Competition Authority closes a case of alleged discriminatory access to the market which is currently in front of the Securities Exchange Board due to insufficient evidence for a prima facie decision (Advocate Jitesh Maheshwari / National Stock Exchange of India)
Vaish Associates Advocates (New Delhi)
CCI cedes jurisdiction to SEBI to decide upon complaint of abuse of dominance against National Stock Exchange* The Commission, in a surprise turn from its previous position in so many cases before, by way of order dated 07.01.2019, decided not to inquire into allegations of abuse of dominance (...)

The Russian Presidium of the Supreme Court considers a competition case for the first time, granting the appeal of Europe’s largest port operator concerning sanctions for abuse of dominance (Novorossiysk Commercial Sea Port)
ALRUD (Moscow)
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ALRUD (Moscow)
THE FIRST COMPETITION CASE IN THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION – RESOLUTION OF THE DISPUTE BETWEEN THE FAS AND THE LARGEST STEVEDORE* Background and main problems Novorossiysk Commercial Sea Port PJSC (“NCSP”) is one of the Europe’s largest port operator in terms of (...)

The Turkish Court of Ankara annuls a decision of the Competition Authority which contains controversial issues such as market power provided by digital platforms and excessive pricing (Sahibinden.com)
Erdem & Erdem (Istanbul)
Introduction Decision numbered 2019/946 E., 2019/2625 K. of the 6 th Administrative Court of Ankara (“Annulment Decision”) is critical since it has annulled the Competition Authority's (“Authority”) Sahibinden.com Decision numbered 18-36/584-285 and dated 01.10.2018 (“Sahibinden Decision”) 1 , (...)

The Indian National Company Law Appellate Tribunal reverses the Competition Authority’s decision which penalized a company for imposing anti-competitive vertical restraints in the manufacturing vehicle sector (Hyundai)
Vaish Associates Advocates (New Delhi)
NCLAT quashes CCI order punishing Hyundai for Resale Price Maintenance and Tying-in* The National Company Appellate Tribunal (“NCLAT/ Tribunal ”) by way of an order dated August 19, 2018 , has set aside the CCI Order dated June 14, 2017 against Hyundai Motors India Ltd. (“Hyundai”) which (...)

The Indian Competition Authority dismisses abuse of dominance allegations because the defendant was not dominant in the "relevant period" (Amit Mittal / DLF New Gurgaon Home Developers & Vijay Kapoor / DLF New Gurgaon Home Developers)
Vaish Associates Advocates (New Delhi)
CCI dismisses allegation of abuse of dominant position against the DLF group* By way of an order dated August 31, 2018, the CCI has dismissed allegations of abuse of dominant position by DLF group. The case was closed since DLF was not found to be in a dominant position Gurgaon during the (...)

The Canadian Supreme Court dismisses an appeal and upholds the Court of Appeal’s order requiring a professional association to stop restricting its members’ use of real estate data (Toronto Real Estate Board)
Canadian Competition Bureau (Gatineau)
Court order upheld requiring TREB to stop restricting its members’ use of real estate data* The Competition Bureau today welcomes the Supreme Court of Canada’s (SCC) dismissal of the Toronto Real Estate Board’s (TREB) application seeking leave to appeal a December 2017 decision from the Federal (...)

The UK Competition Appeal Tribunal announces its provisional judgment in an appeal against the Competition Authority’s infringement decision in an excessive price case (Pfizer / Flynn)
White & Case (Brussels)
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White & Case (Brussels)
I. Introduction In the last couple of years, there has been a trend for antitrust watchdogs around the world to investigate excessive pricing, especially in the pharmaceutical sector. Last year, the European Commission opened its first investigation into excessive pricing in the pharmaceutical (...)

The UK Competition Appeal Tribunal partly annuls the Competition Authority’s decision that pharmaceutical companies abused their dominant position by setting excessive and unfair prices for an epilepsy drug (Pfizer / Flynn)
Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 7 June 2018, the Competition Appeal Tribunal (CAT) set aside in part the 2016 decision of the Competition and Markets Authority (CMA) that Pfizer and Flynn (...)

The UK Competition Appeal Tribunal finds an incorrect application of the legal test for dominance and quashes the Competition Authority’s record fines imposed on two pharmaceutical companies for charging excessive prices for an anti-epilepsy drug (Pfizer / Flynn)
MemeryCrystal
EXCESSIVE PRICE? COMPARED TO WHAT?* On 7 June 2017, the Competition Appeal Tribunal (“CAT”) set aside parts of the Competition & Market Authority’s (“CMA”) decision in relation to the CMA’s finding that Pfizer and Flynn charged excessive and unfair prices for phenytoin sodium capsules and (...)

The Australian Federal Court dismisses an appeal by the Competition Authority against a judgment establishing market power in the pharmaceutical sector (Pfizer)
Herbert Smith Freehills (Melbourne)
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Herbert Smith Freehills (Melbourne)
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Herbert Smith Freehills (Sydney)
The Full Court of the Federal Court of Australia has dismissed an appeal by the ACCC against an earlier judgment in relation to pharmaceutical company Pfizer. While the Full Court upheld the single judge decision that Pfizer had not misused its market power or engaged in prohibited (...)

The Spanish Supreme Court rejects the allegations of abuse of dominance by a postal incumbent for lack of evidence (Correos)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
In 2014, UNIPOST, S.A. (Unipost) filed a complaint before the NMCC against Sociedad Estatal de Correos y Telegrafos, S.A., (Correos) denouncing that Correos was able to offer discounts to large customers, well above the discounts offered by Unipost and other competitors for similar services, (...)

Mergers

The EU Court of Justice AG Kokott supports setting aside the General Court’s ruling, overturning the prohibition order of a merger between telecoms companies (Telefónica UK / Hutchison 3G UK)
Van Bael & Bellis (Brussels)
On 20 October 2022, Advocate General Kokott issued an opinion that the General Court (“GC”) had erred in its ruling in the C.K. Telecoms case by misstating the correct legal test to prohibit an oligopolistic merger and for engaging in an overly broad legal review of the Commission’s decision. AG (...)

The EU Court of Justice AG Kokott advises the Court to uphold the Commission’s appeal on the grounds that the General Court erroneously applied a stricter burden of proof for the SIEC test and erred in law by misinterpreting the concept of a SIEC (Telefónica UK / Hutchison 3G UK)
Cleary Gottlieb Steen & Hamilton (Brussels)
Advocate General Sides with Commission in its Appeal of General Court’s Overturning of Three/O2 Prohibition* Non-binding opinion finds that General Court erred in applying heightened standard of proof to cases involving unilateral effects in oligopolistic markets. The Case and the Opinion On (...)

The EU Court of Justice AG Kokott clarifies the standards of proof for the existence of non-coordinated effects satisfying the concept of ‘significant impediment to effective competition’ on an oligopolistic market where the merged entity does not have a dominant position (Telefónica UK / Hutchison 3G UK)
European Court of Justice (Luxembourg)
Merger control: Advocate General Kokott clarifies the standards of proof of the existence of non-coordinated effects satisfying the concept of ‘significant impediment to effective competition’ on an oligopolistic market where the merged entity does not have a dominant position* The scope of the (...)

The EU General Court dismisses a damages action for EUR 1.74 billion brought by a courier delivery services company against the Commission for the losses and costs resulting from the annulment of a merger prohibition decision (UPS / TNT)
Ashurst (Brussels)
On 23 February 2022, the General Court dismissed UPS’s damages action for EUR 1.74 billion against the European Commission for the losses and costs resulting from the annulment of the UPS/TNT merger prohibition decision. Key takeaways Annulment of a merger prohibition decision will not (...)

The UK Competition Appeal Tribunal hands down a judgment dismissing a software supplier’s application for review of the Competition Authority decision’s to prohibit a merger (Sabre / Farelogix)
Ashurst (London)
On 21 May 2021, the Competition Appeal Tribunal ("CAT") handed down a judgment dismissing Sabre’s application for review of the Competition and Markets Authority ("CMA") decision to prohibit the Sabre/Farelogix merger. Sabre had challenged the CMA’s jurisdiction to review the merger, which it had (...)

The UK Competition Authority updates its Merger Assessment Guidelines
Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
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Freshfields Bruckhaus Deringer (London)
The UK’s Competition and Markets Authority (CMA) has updated its guidelines on the way it assesses mergers to take account of the significant economic changes that have taken place since it published its previous guidance in 2010. The CMA is taking an increasingly interventionist approach to (...)

The UK Competition Authority publishes its revised Merger Assessment Guidelines along with a quick guide complementing the revision of its Guidance on jurisdiction and procedure
Bird & Bird (London)
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Bird & Bird (London)
In March 2021, the Competition & Markets Authority (CMA) published its revised Merger Assessment Guidelines (MAGs) along with a Quick Guide, complementing the revision of its Guidance on jurisdiction and procedure, which was published in December 2020. The updated MAGs underpin the CMA’s (...)

The Dutch District Court of Rotterdam annuls the acquisition of a distributor of educational materials by a publisher and orders the Competition Authority to assess the anticompetitive effects of potential product bundling by a would-be merged entity (Iddink / Sanoma Learning)
Van Doorne (Amsterdam)
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Van Doorne (Amsterdam)
The District Court of Rotterdam has annulled a decision in which the Dutch Authority for Consumers and Markets (ACM) approved the acquisition of Iddink by Sanoma Learning. This is the second time in 12 months that an approval decision by the relevant Dutch authorities has been annulled by the (...)

The US Senate introduces a major antitrust bill which outlaws any merger between a Big Tech and any other company valued over $100B
Portland State University
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International Center for Law & Economics (Portland)
The Klobuchar Bill’s Not-So-Bright Lines for Antitrust Scrutiny* In a recent op-ed, Robert Bork Jr. laments the Biden administration’s drive to jettison the Consumer Welfare Standard that has formed nearly half a century of antitrust jurisprudence. The move can be seen in the near-revolution at (...)

The UK Competition Appeal Tribunal upholds the appeal brought by a company for a merger in the sports retail sector in light of the COVID-19 pandemic (JD Sports / Footasylum) Free
Ashurst (London)
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Ashurst (London)
On 13 November 2020, the UK Competition Appeal Tribunal ("CAT") published its judgment in relation to the merger of JD Sports and Footasylum. The merger was prohibited by the UK Competition and Markets Authority ("CMA") in May, but JD Sports appealed. The CAT partially upheld the appeal and the (...)

The UK Competition Appeal Tribunal dismisses the Competition Authority’s decision and authorizes the acquisition of a company in the sports retailing sector in light of the COVID-19 pandemic (JD Sports / Footasylum) Free
Van Bael & Bellis (Brussels)
On 13 November 2020, the UK Competition Appeal Tribunal (“CAT”) upheld an appeal brought by JD Sports against the Competition and Markets Authority’s (“CMA”) decision to prohibit its already completed acquisition of rival retailer Footasylum. On 6 May 2020, the CMA had blocked the merger between the (...)

The UK Competition Appeal Tribunal supports the Competition Authority’s approach to estimating the merger effects on consumers but finds that it did not gather enough information about the impact of the COVID-19 pandemic on the merger (JD Sports / Footasylum) Free
United Kingdom’s Competition Authority (CMA) (London)
CMA considers next steps in JD Sports/Footasylum merger* The CMA is considering its next steps following today’s Competition Appeal Tribunal judgment in the JD Sports/Footasylum case. JD Sports had appealed the Competition and Market Authority’s (CMA) final decision to block its takeover of (...)

The EU General Court annuls the Commission’s decision prohibiting a proposed acquisition between two telecom operators with potentially significant implications for the EU merger control policy (Telefónica UK / Hutchison 3G UK)
Court of First Instance of Namur (Namur)
1. SUMMARY On 28 May 2020, the EU’s General Court handed down a ruling annulling the European Commission’s decision prohibiting the proposed acquisition of Telefónica UK (“O2”) by Hutchison 3G UK (“Three”). The ruling has potentially significant implications for mergers in the telecoms sector, as (...)

The EU General Court annuls the Commission’s decision to block the proposed merger in the UK sector of the mobile telephony market (Telefónica UK / Hutchison 3G UK)
General Court of the European Union (Luxembourg)
The General Court annuls the Commission’s decision to block the proposed acquisition of Telefónica UK by Hutchison 3G UK in the sector of the mobile telephony market* On 11 May 2016, [1] the Commission adopted a decision in which it blocked, under the Merger Regulation, [2] the proposed (...)

The EU General Court annuls the Commission’s decision prohibiting an oligopolistic merger between two mobile network operators in the telecommunication sector on the basis that it did not result in the creation or strengthening of a dominant position (Telefónica UK / Hutchison 3G UK)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
On 28 May 2020 the General Court handed down its ruling in CK Telecoms UK Investment Ltd v European Commission (Case T-399/16) in which it annulled the EU Commission’s decision which prohibited the proposed acquisition by CK Hutchison Holdings Ltd (Hutchison) of Telefónica Europe plc (O2). The (...)

The EU General Court annuls the Commission’s prohibition of the merger between two telecommunications companies and clarifies the application of the SIEC test to non-coordinated effects in oligopolistic markets (Hutchison 3G / Telefonica)
Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
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Zepos & Yannopoulos (Athens)
On 28 May 2020, the EU General Court issued a ruling annulling the European Commission’s decision prohibiting the proposed acquisition of Telefónica UK by Hutchison 3G UK. The Commission had examined this transaction as a “four-to-three” merger and had blocked it in 2016, in line with its generally (...)

The EU General Court annuls the Commission’s prohibition of a merger between two of the UK’s four mobile network operators after finding errors in the analysis of alleged anticompetitive effects whilst conducting its acquisition review (Telefónica UK / Hutchison 3G UK)
Baker Botts (Brussels)
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Baker Botts (Brussels)
Firm Thought Leadership In what is destined to rank as one of the most significant judicial knockbacks of the European Commission (“Commission”) in the area of merger control for many years, the EU’s General Court (“Court”) has annulled the decision by the Commission in 2016 to prohibit the merger (...)

The EU General Court overturns the EU Commission’s prohibition of a mobile telecommunications merger (Telefónica UK / Hutchison 3G UK)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (London)
In a landmark Judgment delivered on May 28, the General Court overturned the European Commission’s 2016 prohibition of the Three/O2 UK mobile telecommunications merger. The Judgment raises the bar for the Commission in respect of (1) the legal standard the Commission must meet; (2) the closeness (...)

The EU General Court annuls the Commission’s decision prohibiting the acquisition of two telecommunication companies (Telefónica UK / Hutchison 3G UK)
Government Legal Department (London)
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Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
1. Summary On 28 May 2020, the EU General Court handed down a ruling annulling the European Commission’s (“Commission”) decision prohibiting the proposed acquisition of Telefónica UK (“O2”) by Hutchison 3G UK (“Three”). The ruling has potentially significant implications for mergers in the telecoms (...)

The US DoJ moves to vacate its loss in a booking services market acquisition decision on the basis that the competition effects may heighten the agencies’ burden of proof and merger enforcement (Sabre / Farelogix)
Baker Botts (Washington)
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Baker Botts (Washington)
On May 12, 2020, the Department of Justice moved the U.S. Court of Appeals for the Third Circuit to vacate the U.S. District Court for the District of Delaware’s U.S. v. Sabre Corp. opinion. In an opinion released on April 7, the court rejected DOJ’s challenge to the proposed merger of Sabre and (...)

The Australian Competition Authority blocks a proposed merger between a fixed-line provider and a mobile network operator (TPG / VHA)
Ashurst (Sydney)
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Ashurst (Sydney)
Following an 8 month investigation, on 8 May 2019, the Australian Competition and Consumer Commission ("ACCC") announced its decision to oppose the proposed merger between fixed-line provider TPG Telecom ("TPG") and mobile network operator Vodafone Hutchinson Pty Limited ("VHA"). VHA and TPG (...)

The US District Court for the Southern District of New York clears merger between top third and fourth wireless communications providers (State AGs / T-Mobile / Sprint)
Weil, Gotshal & Manges (New York)
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Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
T-Mobile’s Marathon to Acquire Sprint: Five Takeaways from the T-Mobile/Sprint Antitrust Litigation After almost two years of scrutiny by state and federal regulators and an ensuing court battle, T-Mobile US, Inc. (“T-Mobile”) is moving forward with its acquisition of Sprint Corporation (...)

The UK Competition Appeal Tribunal annuls the Competition Authority’s decision for failing to provide sufficient evidence in order to prove that the acquisitions would result in vertical input foreclosure effects in the communication technology market (Tobii / Smartbox)
Bird & Bird (London)
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Bird & Bird (London)
In September 2019, the Competition Markets Authority ("CMA") found that Tobii’s acquisition of Smartbox resulted in or may result in a substantial lessening of competition in the UK assistive communication technology market and ordered Tobii to divest Smartbox. Tobii consequently appealed the (...)

State Aid

The EU Court of Justice rejects an appeal filed by an airline company and provides further guidance on standing to challenge State aid decisions related to competing undertakings (Lufthansa)
Hogan Lovells (Brussels)
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Van Bael & Bellis (Brussels)
On 15 July 2021, the Court of Justice of the European Union (“ECJ” or “Court”) rejected the appeal filed by the German airline company Deutsche Lufthansa AG against the judgment of the General Court of 12 April 2019, Deutsche Lufthansa v Commission (Case T-492/15). The substance of the dispute (...)

The EU General Court annuls the Commission’s decision that ordered the recovery of €283 million from a Big Tech company back to a country for State aid (Amazon)
Maastricht University
Amazon and the Difficulty of Finding a Comparable Tax Payer* To apply the Arm’s Length Principle to transactions between two related companies, the Commission must identify the less complex company of the two and compare it to a similar independent company. Methodological errors in the (...)

The EU Court of Justice rejects the appeal brought by the Commission against the General Court’s decision concerning the measures adopted by Italian banks to support one of its members (Banca popolare di Bari)
Maastricht University
Can the Decision of a Private Entity be Imputed to the State?* Introduction One of the trickiest aspects of determining whether a financial transaction involves State aid is its attribution or imputation to a decision of the state, especially when the entity providing the funding is private. (...)

The EU Court of Justice rejects the Commission’s appeal concerning alleged aid granted to a bank and clarifies the requirements for the imputability test in the case of private entities (Banca Popolare di Bari)
Hogan Lovells (Brussels)
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Van Bael & Bellis (Brussels)
On 2 March 2021, the Grand Chamber of the Court of Justice (“ECJ”) confirmed the judgment of the General Court (“GC”) in Tercas (19 March 2019, Italy and Others v Commission, Joined Cases T-98/16, T-196/16 and T-198/16). The judgments on appeal and at first instance provide important guidance on (...)

The EU Court of Justice confirms that support measures adopted by an Italian bank consortium did not constitute State aid (Banca Popolare di Bari)
Ashurst (Brussels)
On 2 March 2021, the European Court of Justice ("ECJ") dismissed in its entirety the European Commission’s appeal against the General Court’s judgment regarding financial support adopted by an Italian consortium of banks for the benefit of one of its members. The General Court found correctly (...)

The EU Court of Justice confirms that the Italian deposit guarantee scheme intervention in support of a bank did not constitute State aid (Banca Popolare di Bari)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Rome)
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Link Campus University (Rome)
On March 2, 2021, in dismissing the appeal brought by the European Commission against the judgment of the EU General Court in the Tercas case, the EU Court of Justice issued a landmark ruling on the standard of proof for the imputability to the State of support measures granted by private (...)

The EU Court of Justice Advocate General Tanchev thinks the Court should dismiss the appeal of the Commission against the judgment of the General Court on support measures adopted by an Italian consortium of banks for the benefit of one of its members (Banca Popolare di Bari / Fondo interbancario di tutela dei depositi / Banca d’Italia)
European Court of Justice (Luxembourg)
According to Advocate General Tanchev, the Court should dismiss the appeal of the Commission against the judgment of the General Court on support measures adopted by an Italian consortium of banks for the benefit of one of its members* The General Court was right in considering that those (...)

The EU General Court strikes down the Commission’s decision ordering Ireland to recover €13 billion from a Big Tech company for illegal State aid (Apple)
European Commission - DG COMP (Brussels)
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (Brussels)
On July 15, 2020, the European Union’s second- highest court, the General Court (the “Court”), annulled the 2016 decision of the European Commission (the “Commission”) ordering Ireland to recover €13 billion (€14.3 billion with interest) in back-taxes from Apple which the Commission considered to be (...)

The EU General Court annuls the Commission’s decision regarding the Irish tax rulings in favor of a Big Tech company (Apple)
General Court of the European Union (Luxembourg)
The General Court of the European Union annuls the decision taken by the Commission regarding the Irish tax rulings in favour of Apple* The General Court annuls the contested decision because the Commission did not succeed in showing to the requisite legal standard that there was an advantage (...)

The EU General Court considers that the Commission did not successfully show the requisite legal standard that the tax rulings entailed a selective advantage and annuls its decision (Apple)
Cruz Vilaça Advogados (Lisbon)
On 15 July the General Court (‘GC’) delivered its judgment concerning the appeals lodged by Ireland, on the one hand, and Apple Sales International (‘ASI’) and Apple Operations Europe (‘AOE’) (together, ‘Apple’), on the other, against a Commission decision finding the Irish tax rulings granted to Apple (...)

The EU General Court annuls the Commission’s decision concerning the tax rulings in favor of a Big Tech company (Apple)
Van Bael & Bellis (Brussels)
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Hogan Lovells (Brussels)
On 15 July 2020, the General Court (the “GC”) annulled the European Commission’s (the “Commission”) decision of 30 August 2016 concerning tax rulings adopted by the Irish authorities in relation to two companies forming part of the Apple Group (the “Contested Decision”). The Contested Decision found (...)

The EU Court of Justice and the General Court rule in two separate judgments on State aid showing how the Courts’ approach a judicial review of complex economic assessments when the burden of proof is on the Commission (Frucona Kosice) (Fútbol Club Barcelona)
Garrigues (Brussels)
EU Judicial Review: Major Antitrust Implications of Recent State Aid Cases* We competition lawyers often wrongly approach our discipline in isolation from the wider context in which it is applied. This is also true when it comes to judicial review. We tend to forget that antitrust is only a (...)

Procedures

The EU Court of Justice upholds judgment annulling the Commission’s decision and confirms that the General Court had not imposed an excessive burden of proof in a recovery of State aid case (Valencia Club de Fútbol)
European Court of Justice (Luxembourg)
Decision on State aid granted by Spain to Valencia CF annulled by the General Court: the Court of Justice dismisses the Commission’s appeal * According to the Court of Justice, the General Court did not impose an excessive burden of proof on the Commission and merely found that the Commission (...)

The Ankara 13th Administrative Court rules for the annulment of the Turkish Competition Authority’s cartel decision due to failure of standard of proof (Kronospan)
ACTECON (Istanbul)
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ACTECON (Istanbul)
,
ACTECON (Istanbul)
The Ankara 13th Administrative Court (’Court’) recently annulled with its decision (“Court Decision”) the Turkish Competition Authority’s (’TCA’) cartel determination (“TCA Decision”) against Kronospan Orman Ürünleri San. ve Tic. A.Ş. (“Kronospan”) in a decision through which it had imposed on 11 (...)

The Ankara 2nd Administrative Court stays the execution of the Competition Authority’s decision to fine an online marketplace for obstructing a dawn raid (Sahibinden)
ACTECON (Istanbul)
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ACTECON (Istanbul)
Introduction As is well known, the Turkish Competition Authority (“TCA”) is authorized to examine all data and documents on electronic platforms and information systems during the on-site inspections pursuant to the amendment dated 16.06.2020 on Article 15 of Law No. 4054 on the Protection of (...)

The EU General Court confirms the case law on the presumption of innocence in cartel cases where only some parties are given leniency for cooperation (Scania)
Van Bael & Bellis (Brussels)
On 2 February 2022, the General Court of the European Union delivered a judgment in which it upheld the European Commission’s (“Commission”) decision to impose a fine of €880.5 million on Scania for participating in a cartel for 14 years with five other truck manufacturers (Case T-799/17, Scania v. (...)

The English Court of Appeal clarifies the threshold for raising ‘off-setting’ defences in competition and other breach of duty claims (NTN / Stellantis)
Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
,
London School of Economics (London)
English Court of Appeal Clarifies Threshold for Raising ‘Off-Setting’ Defences in Competition and Other Breach of Duty Claims Introduction and Summary The recent decision of the English Court of Appeal in NTN Corporation v. Stellantis concerned an appeal against a successful application to (...)

The Italian Supreme Court accepts an appeal by a luxury fashion designer demanding the cancellation of the registration of two brands for lack of novelty to avoid dilution or corrosion of the trademark as a result of counterfeiting (Gucci / Zhou Shaolin)
Accademia del Lusso
With the following article I would like to analyze the very recent sentence of the Court of Cassation - n. 27217/2021 filed on 7 October 2021 , which, in terms of the protection of renowned brands, accepted with postponement the appeal by Gucci which requested the cancellation for "lack of (...)

The Milan Court of Appeal rules on the probatory value of the Competition Authority’s findings in follow-on actions for damages (Vodafone)
Van Bael & Bellis (Brussels)
On 18 June 2021, the Court of Appeal of Milan issued a judgment in a damages action initiated against telecommunications provider Vodafone. This case stemmed from an investigation carried out by the Italian competition authority (“ICA”) into an abusive margin squeeze by Vodafone on the market for (...)

The EU Court of Justice AG Tanchev proposes to grant unfettered discretion to the Commission to disregard third parties’ submissions in State aid cases (Tempus)
ClientEarth (Brussels)
How to grant unfettered discretion to the Commission to disregard third parties’ submissions in State aid cases – AG Tanchev Opinion of 3 June 2021 in Tempus* We knew that third parties’ rights in State aid assessment procedures are virtually non-existent – as has been deplored for many years (see (...)

The UK Competition Appeal Tribunal confirms the Competition Authority’s broad approach to the share of supply test resulting in the decision to block the merger between two software suppliers in a first case where the cartelist’s fine is reduced due to implementing a compliance program (Sabre / Farelogix)
Herbert Smith Freehills (London)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (London)
In its judgment of 21 May 2021 the Competition Appeal Tribunal (“CAT”) upheld the CMA’s approach in applying the share of supply test to assert jurisdiction over Sabre’s acquisition of Farelogix, (with the CMA ultimately prohibiting the transaction following an in-depth investigation). The CAT (...)

The EU General Court issues two decisions on State Aid appeals brought by a major Big Tech company and an energy company (Amazon) (Engie)
Arendt & Medernach (Luxembourg)
,
Beeton Consulting (London)
On May 12, 2021, the General Court of the European Union (EU) published its decisions on the appeals against the findings of the European Commission (EC) that State aid had been granted to Amazon and Engie by Luxembourg in the form of tax rulings resulting in non-arm’s length transfer pricing (...)

The EU General Court delivers two new landmark rulings in the field of State aid and taxation against a Big Tech company and an energy company (Amazon) (Engie)
Hogan Lovells (Brussels)
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Van Bael & Bellis (Brussels)
On 12 May 2021, the General Court of the European Union (“GC”) delivered two important judgments concerning tax rulings granted by Luxembourg to Amazon (Joined cases T-816/17, Luxembourg v Commission and T-318/18, Amazon EU and Amazon.com v Commission) and Engie (Joined cases T-516/18, Luxembourg (...)

The US Court of Appeals for the Ninth Circuit clarifies class certification standards in an antitrust appeal (Olean Wholesale Grocery / Bumble Bee Foods)
Jones Day (San Francisco)
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Jones Day (San Francisco)
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Jones Day (Irvine)
The Ninth Circuit approved use of statistical analysis that relies on averaging but reversed class certification because the district court failed to resolve whether more than a de minimis number of putative class members were injured. On April 6, 2021, in Olean Wholesale Grocery Coop. v. (...)

The EU Court of Justice confirms the General Court’s analysis and applies the State imputability condition in the specific case of a measure implemented by a private entity (Banca Popolare di Bari)
Sheppard Mullin (Brussels)
,
BonelliErede (Brussels)
The Court of Justice (‘the Court’), sitting as a Grand Chamber, dismissed an appeal lodged by the European Commission (‘the Commission’) against the General Court’s judgment annulling the Commission’s negative decision concerning the intervention of the Fondo interbancario di tutela dei depositi (...)

The Amsterdam Court of Appeal rules that Dutch courts have jurisdiction over damages claim resulting from an abuse of dominance on the Greek beer market (Macedonian Thrace Brewery / Athenian Breweries / Heineken)
European Court of Justice (Luxembourg)
On 16 February 2021, the Amsterdam Court of Appeal overturned the Amsterdam District Court’s ruling declining jurisdiction over the damages claim brought by MacedonianThrace Brewery (“MTB”) against Heineken’s subsidiary Athenian Breweries (“AB”). In 2014, the Hellenic Competition Commission (“HCC”) (...)

The Amsterdam Court of Appeal accepts jurisdiction regarding a damages claim in a case of abuse of dominance in the Greek beer market (Macedonian Thrace Brewery / Athenian Breweries / Heineken)
KPN (Amsterdam)
On 16 February 2021, the Amsterdam Court of Appeal (Court of Appeal) reversed a judgment of the Amsterdam District Court (District Court) in which the District Court declined jurisdiction in the damage claims brought by the Macedonian Thrace Brewery S.A. (MTB) against Athenian Brewery S.A. (AB) (...)

The French Supreme Court confirms that to obtain a fine reduction in cartel cases companies must actively reject cartel participation (Goodmills Deutschland / Grands moulins de Paris)
Herbert Smith Freehills (Paris)
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Baudelin Avocat (Paris)
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Herbert Smith Freehills (Brussels)
Facts and FCA decision On 13 March 2012, the French Competition Authority ("FCA") sanctioned a flour cartel between French and German millers. One of the anti-competitive practices consisted in a non-aggression pact limiting flour imports between France and Germany, leading to market sharing (...)

The German Federal Court of Justice rules in a private damages claim concerning the German track cartel that lump-sum cartel damages clauses of 5% and up to 15% are permissible
Ashurst (Frankfurt)
,
Ashurst (Munich)
In a decision of 10 February 2021, published at the end of April 2021, the German Federal Court of Justice ("FCJ") ruled in a private damages claim action concerning the German track cartel that lump-sum cartel damages clauses of 5% (as in the case at hand) and, more generally, of up to 15% (...)

The Spanish High Court annuls the Competition Authority’s €60,000 fine against a road transport association for lack of motivation and error in the qualification of the conduct (ASEMTRASAN)
Cuatrecasas (Barcelona)
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Cuatrecasas (Barcelona)
,
Cuatrecasas (Madrid)
The Spanish National High Court (Audiencia Nacional, “Spanish High Court”) has annulled the fine that the Spanish National Commission of Markets and Competition (Comisión Nacional de los Mercados y de la Competencia, “CNMC”) imposed to the Asociación de Empresarios de Transportes Discrecionales de (...)

The EU Court of Justice broadens the scope of the presumption of decisive influence for parent companies over wrongdoing subsidiaries for a case dealing with a cartel in the submarine power cables industry (Goldman Sachs)
Giannino SI (Monserrato)
Under EU competition law, a parent company is liable for the anti-competitive conducts put in place by its subsidiaries on which it has a decisive influence. To establish this factor the European Commission (EC) can rely on a rebuttable legal presumption whereby a parent company that wholly (...)

The EU Court of Justice confirms the rebuttable presumption of decisive influence for parent companies controlling 100% of voting rights in subsidiary (Goldman Sachs)
Van Bael & Bellis (London)
On 27 January 2021, the Court of Justice dismissed in its entirety an appeal by the Goldman Sachs Group (“Goldman Sachs”) against a General Court judgment upholding a European Commission’s decision finding Goldman Sachs jointly and severally liable for the conduct of its subsidiary, Prysmian SpA (...)

The EU Court of Justice clarifies the application of optional exclusion grounds and the right to self-cleaning (RTS Infra / Aannemingsbedrijf Norré-Behaegel)
Van Bael & Bellis (Brussels)
On 14 January 2021, the Court of Justice of the European Union (CJEU) held that tenderers who find themselves in one of the optional grounds for exclusion referred to in Article 57(4) of Directive 2014/24/EU of 26 February 2014 on public procurement (the Directive) are only obliged to (...)

The UK Court of Appeal clarifies the ability of parties that settle EU Commission antitrust investigations to challenge the Commission’s findings in follow-on damages actions (Trucks Cartel)
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
The Court of Appeal has handed down an important judgment clarifying the ability of parties that settle European Commission (Commission) antitrust investigations to challenge the Commission’s findings in follow-on damages actions. The judgment concerns an appeal relating to a preliminary issue (...)

The UK Court of Appeal dismisses an appeal relating to the evidential weight to be given to recitals in EU Commission infringement decisions issued under the settlement procedure (Trucks Cartel)
Ashurst (London)
,
Ashurst (London)
On 11 November 2020, the Court of Appeal emphatically dismissed an appeal brought by five truck manufacturers against a judgment of the Competition Appeal Tribunal ("CAT") handed down in March 2020 relating to the evidential weight to be given to recitals to a European Commission infringement (...)

The German Federal Court of Justice rules on the passing-on defense in damages claims proceedings following a sanctioned cartel in the rail market (Rail cartel)
Van Bael & Bellis (Brussels)
In a recently published judgment of 23 September 2020, the German Federal Court of Justice (“FCJ”) ruled once again on the private damages claims of a public transport company following on from the Federal Cartel Office’s rail track cartel decision (see VBB on Competition Law, Volume 2012, No. 7 (...)

The Spanish Competition Authority suspends most procedures in line with the Government’s Royal Decree declaring a state of alert but keeps open the e-services portal for procedures whose parties can prove that delay is against public interest Free
Spanish Competition Authority (CNMC) (Madrid)
CoVid-19- Announcement from the CNMC on the timelines for administrative procedures* "Additional provision 3 of Royal Decree 463/2020 of 14 March, declaring the state of alert to manage the health crisis situation caused by COVID-19, provides for the suspension of periods and timelines for (...)

The German Federal Court of Justice defines in line with EU case law the substantive and procedural requirements for establishing causality in cartel-related damages actions (Rail Cartel)
University of Vienna (Vienna)
By its ruling in Rail Cartel II (Schienenkartell II), delivered on 28 January 2020, the German Federal Court of Justice (Bundesgerichtshof) has clarified the respective prerequisites to establish, on the one hand, causality which gives rise to liability (haftungsbegründende Kausalität), and on (...)

The Canadian Supreme Court clarifies several procedural questions relating to class actions, with potential significance to class actions in the UK and EU (Pioneer / Godfrey)
Allen & Overy (Washington)
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Allen & Overy (Brussels)
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Cohen & Gresser (Washington D.C.)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On September 20, 2019, the Supreme Court of Canada (“SCC”) issued a landmark antitrust class action decision in Pioneer Corp. v Godfrey which clarified several (...)

The US Court of Appeals for the DC Circuit affirms the denial of class certification for failing to satisfy the requirement for predominance (In re Rail Freight Fuel Surcharge Antitrust Litigation)
Paul Weiss (New York)
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Paul Weiss (Washington)
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George Mason University - Antonin Scala Law School (Arlington)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On August 16, 2019, the United States Court of Appeals for the District of Columbia Circuit affirmed the denial of class certification in In re Rail Freight Fuel (...)

The Ankara 6th Administrative Court annuls the Turkish Competition Authority’s decision and finds that the Authority did not meet the required standard of proof (Sahibinden)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
,
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
(1) Introduction The decision of the Turkish Competition Board (the “Board”) concerning the full-fledged investigation of the Turkish Competition Authority (the “Authority”) against Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret A.Ş. (“Sahibinden.com”) has been unanimously overturned by Ankara (...)

The EU Commission adopts guidelines on passing-on for national courts
Hausfeld (London)
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Hausfeld (Düsseldorf)
,
Hausfeld (Berlin)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 1 July 2019, the European Commission (the “Commission”) adopted guidelines designed to provide national courts with guidance in estimating the share of (...)

The Spanish Supreme Court decides on the interpretation of random discovery of evidence in dawn raids cases (Unión de Recuperación)
Callol, Coca & Asociados (Madrid)
The Supreme Court has upheld the appeal lodged by UdER (Unión de Recuperación) against the Judgment of the High Court of 15 December 2017 (appeal number 15/2015), declaring the NMCC’s Decision of 6 November 2014, Recogida de Papel, file S/0430/12 (Decision) null and void. In the said Decision, (...)

The Spanish Supreme Court rejects applicability of ‘fortuitous discovery’ doctrine when an inspection order is excessively vague (Unión de Empresas de Recuperación)
Cuatrecasas
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Mondelez (Madrid)
On February 26, 2019, the Spanish Supreme Court ruled on the Unión de Empresas de Recuperación (“UDER”) appeal against the National High Court’s judgment, which had confirmed a 2014 decision of the Comisión Nacional de los Mercados y la Competencia (Spanish Competition Commission, “CNMC”) fining 13 (...)

The Supreme Court of India clarifies that the determination of relevant market is not a mandatory pre-condition for initiating investigations of alleged anticompetitive agreements (Co-ordination Committee of Artists and Technicians of West Bengal Film and Television Industry)
Vaish Associates Advocates (New Delhi)
Supreme Court clears air on definition of relevant market in Section 3 (anti-competitive agreement) cases* The Supreme Court by its order dated May 7, 2018 has clarified that the determination of a ‘relevant market’ is not a mandatory pre-condition for undertaking an assessment of an alleged (...)

Regulatory

The Italian Government approves the draft annual law for competition
White & Case (Milan)
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White & Case (Milan)
,
White & Case (Milan)
After several delays, on November 4, 2021, the Italian Council of Ministers examined and finally approved the draft Annual Law for Competition ("Draft") pursuant to Article 47 of Law No. 99/2009. The Draft reflects most of the proposals sent to the Italian government by the Italian Competition (...)

The US President Joe Biden signs an executive order which includes 72 initiatives aimed at enhancing competition and a directive encouraging the US FTC to ban or limit employee non-compete agreements
White & Case (Washington)
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White & Case (Washington)
,
White & Case (New York)
On Friday, July 9, 2021, President Biden signed Executive Order 14036, Promoting Competition in the American Economy, which includes—among 72 initiatives aimed at enhancing competition in the US—a directive encouraging the Federal Trade Commission to ban or limit employee non-compete agreements. (...)

The US President Joe Biden signs an executive order containing 72 initiatives seeking to coordinate the federal government’s response to what it sees as pressing competition issues and the threat in the rise of large corporations
Allen & Overy (Palo Alto)
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White & Case (Boston)
,
White & Case (Washington)
Calls for changes to antitrust law, and how antitrust laws should be applied to the conduct of large technology companies, have been heating up in recent years. Now, the push for wide-scale changes to antitrust law has reached a boiling point. Indeed, President Biden’s sweeping July 9, 2021 (...)

The Danish Government proposes a new competition act entailing several extensive and intrusive changes to the current one as part of implementing the ECN+ Directive
Bird & Bird (Copenhagen)
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Bird & Bird (Copenhagen)
As a part of the implementation of the ECN+ Directive, a new competition act has been proposed by the Danish Government. The proposed competition act entails several extensive and intrusive changes to the current competition act. Accordingly, companies should be aware that these amendments will (...)

The German Ministry for Economic Affairs and Energy publishes the draft bill on the 10th amendment to the German Act against restraints of competition
Morgan Lewis (Frankfurt)
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Buntscheck (Munich)
The German Ministry for Economic Affairs and Energy has published the draft bill on the 10th amendment to the German Act against Restraints of Competition, which includes a proposal for the revision of abuse control in Germany. Such revision would be of high relevance for undertakings in the (...)

The EU Commission publishes a report on competition policy for the digital era
Crowell & Moring (London)
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Simmons & Simmons (London)
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Burges Salmon (London)
On 04 April 2019, the European Commission (EC) published a report commissioned by the EU’s Competition Commissioner, Margrethe Vestager. The report looks at how competition policy should continue to evolve in the digital age and is written jointly by an economist, a lawyer and an engineer. The (...)

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