Due Process Research Program

General antitrust

The OECD holds a roundtable on the authorities’ investigative powers in practice
OECD - Competition Division (Paris)
Competition authorities assume a crucial and challenging mission: protecting competition in the markets. This mission requires intensive evidence and data gathering. To meet this end, competition authorities are armed with various investigative powers ranging from voluntary interviews to (...)

The OECD holds a session on promoting competition and protecting human rights
OECD - Competition Division (Paris)
The first session of the 2016 OECD Global Forum on Competition focused on "Promoting competition, protecting human rights" during its first session. Competition law enforcement depends on an effective system of human rights, most obviously the right to property, the right to contract and rights (...)

The EU Parliament and Council issue a directive on public concessions which brings about a significant risk of duplication of the relevant rules
University of Bristol - Law School
The new Directive on Concessions is basically unnecessary, but creates red tape, duplication & legal uncertainty (Dir 2014/23)* I have been working on the preparation of a commentary to the first part of the new Directive 2014/23 on the award of concession contracts (OJ L 94, 28/03/2014, (...)

The EU Parliament makes available the provisional text of the public procurement directives and consolidates the principle of competition therewith
University of Bristol - Law School
Principle of competition finally consolidated into public procurement directives* The provisional text of the new public procurement Directives has been made available by the European Parliament. In the final version of 15 of January, the principle of competition is finally consolidated in (...)

The Swedish Competition Authority presents a report containing a wide range of policy measures for the improvement and strengthening of competition
Swedish Competition Authority (Stockholm)
Level playing field for the public and private sectors* Obstacles to well-functioning competition must be removed. This is the overarching message in a report recently submitted to the Government by the Swedish Competition Authority. One suggestion is to separately account for public sales (...)

The Swedish Competition Authority examines in its pilot study the adoption by three municipalities of the free choice system in the home care sector
Swedish Competition Authority (Stockholm)
A fair system of choice requires transparent municipal accounting* There are many reasons why municipalities with systems of choice must employ open and clear financial follow-ups for their own operations subject to competition. This is emphasized in a pilot study, where the Swedish (...)

Rights of defence and competition law: An overview of EU and national case law
University of Oxford
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UK Competition Appeal Tribunal (London)
Decisions of the Commission are reviewable for their legality under Article 263 of the Treaty on the Functioning of the European Union (“TFEU”). It is not necessary to set out the full range of decisions that are capable of challenge under Article 263 TFEU, but they include (purely by way of (...)

Rights of Defence and competition law: An overview of EU and national case law
Jones Day (Paris)
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Jones Day (Paris)
Ask a lawyer to name the most basic procedural right, he/she will likely reply: “the rights of defence”. To many lawyers, these rights appear – maybe even before access to justice – as the most immediate and natural guarantee in criminal or quasi-criminal proceedings. After all, before Adam and (...)

Anticompetitive practices

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 Court of Justice dismisses manufacturing company’s appeal against the fine imposed for the power cable cartel (Prysmian)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 24 September 2020, the Court of Justice (“ECJ”) rejected the Italian power-cable manufacturer Prysmi- an’s appeal against the € 104.6 million fine imposed on it by the Commission in 2014 for its involvement in the Power Cables cartel case. The ECJ upheld the earlier ruling by the General Court (...)

The EU Court of Justice rejects power cables appeal on dawn raid powers and successor liability and fines the company €104.6 million for taking part in an international cartel (Prysmian)
Ashurst (London)
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Ashurst (Brussels)
On 24 September 2020, the European Court of Justice ("ECJ") fully dismissed an appeal brought by Prysmian, therefore upholding the European Commission’s ("Commission") decision to fine Prysmian EUR 104.6 million for taking part in an international power-cable cartel. WHAT YOU NEED TO KNOW - KEY (...)

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 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 Italian Council of State upholds the annulment of the Competition Authority’s decision fining eight steel producers for an alleged price-fixing cartel (Reinforcing Steel Bars / Tondini per Cemento Armato)
Ashurst (Brussels)
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Ashurst (Milan)
On 21 January 2020, the Council of State (Italy’s Administrative Highest Court) handed down its judgment upholding the annulment of the Italian Competition Authority’s ("ICA") decision of 19 July 2017 which had fined eight Italian steel producers for an alleged price-fixing cartel, based on the (...)

The Italian Council of State confirms the annulment of a €140 million fine imposed by the Competition Authority on steel companies, as they did not form a cartel in the reinforcing steel bar and electro-welded mesh markets (Reinforcing Steel Bars / Tondini per Cemento Armato)
Chiomenti (Milano)
On 21 January 2020, the Italian Council of State confirmed the annulment of a 140 million EUR fine imposed in 2017 by the Italian Competition Authority (“ICA”) to some of the main Italian steel companies. Indeed, the ICA – by Decision of 19 July 2017 (the “Decision”) issued in the proceedings I742 (...)

The EU Court of Justice dismisses an appeal in a cartel of power cable, confirming no infringement of the claimant’s rights of defence (Brugg / LS Cable)
Ashurst (Brussels)
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Ashurst (London)
On 28 November 2019, the European Court of Justice ("ECJ") handed down judgments in three appeals against General Court judgments that had dismissed actions challenging the European Commission’s ("Commission") power cables cartel decision. Leniency applicant ABB’s appeal was partially upheld, (...)

The Finnish Supreme Administrative Court rules on the scope of legally privileged material and finds that a memorandum found during a dawn raid contained a clear reference to external legal advice in the subject matter under investigation (Matkahuolto)
Bird & Bird (Helsinki)
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Bird & Bird (Helsinki)
The Finnish Competition and Consumer Authority ("FCCA") had, during a dawn raid at a company’s premises, seized a memorandum drafted by this company which, among other things, referred to the legal advice provided to the company by an external attorney. The FCCA argued that as the internal (...)

The Shanghai Intellectual Property Court determines whether there are protectable interests and concludes that the degree of damage suffered by the plaintiff is not enough to meet the need for relief through the anti-unfair competition law (Beijing iQIYI Technology / Beijing Sogou Information)
Beijing Foreign Studies University (Beijing)
The Anti-Unfair Competition Law of the People’s Republic of China stipulates seven types of unfair competition, namely, label confusion (Article 6), commercial bribery (Article 7), misleading statements (Article 8), infringement on trade secrets (Article 9), improper prize-winning sales (Article (...)

The Administrative Court of Lazio annuls a €140 million fine imposed by the Italian Competition Authority for a cartel in the reinforcing steel bar and electro-welded mesh markets (Reinforcing Steel Bars / Tondini per Cemento Armato)
Chiomenti (Milano)
On 12 June 2018, the Administrative Court of Lazio (“TAR Lazio”) annulled a 140 million EUR fine imposed in 2017 by the Italian Competition Authority (“ICA”) to some of the main Italian steel companies. Indeed, the ICA – by Decision of 19 July 2017 (the “Decision”) issued in the proceedings I742 (...)

The EU General Court partially annuls the Commission decision fining a financial company for facilitating cartels in the market of interest rate derivatives in Japanese yen (Icap)
Van Bael & Bellis (Brussels)
On 10 November 2017, the General Court (“GC”) partially upheld the appeal lodged by Icap plc, Icap Management Services Ltd and Icap New Zealand Ltd (“Icap”) against a Commission decision ning Icap € 14.9 million for facilitating cartels in the market for interest rate derivatives in Japanese yen (...)

The Paris Court of Appeal grants legal privilege protection to in-house emails referring to the company’s defence strategy prepared by outside legal counsel (Whirlpool)
Epex Spot (Paris)
In its ruling issued on 8 November 2017, the Paris Court of Appeal (hereafter “the Court”) considers that in-house emails referring to a company’s defence strategy prepared by outside legal counsels but neither sent by or to an outside legal counsel were covered by lawyer-client privilege and (...)

The US Court of Appeals for the Second Circuit dismisses the indictments of two individuals accused of playing a role in the LIBOR case and clarifies the Fifth Amendment law in international cartels (Allen)
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Düsseldorf)
SECOND CIRCUIT CLARIFIES FIFTH AMENDMENT LAW, WITH IMPLICATIONS FOR US PROSECUTION OF INTERNATIONAL CARTELS* On July 19, 2017, the Second Circuit vacated the convictions and dismissed the indictments of two individuals accused of playing a role in the manipulation of the London Interbank (...)

The Polish Supreme Court provides guidance on setting fines for resale price maintenance and recognizes the privilege against self-incrimination in the national competition law (Polifarb Cieszyn – Wrocław)
Office of Competition and Consumer Protection (Warsaw)
Introductory remarks In its decision of 18 September 2006, the President of the Office of Competition and Consumer Protection (hereinafter referred to as the ’President of UOKiK’) imposed fines on Polifarb Cieszyn - Wrocław S.A. (hereinafter referred to as ’PCW’) Praktiker Polska, OBI, Castorama, (...)

The EU General Court dismisses the actions of undertakings in a cartel case and upholds the fines imposed by the Commission (Smart card chips cartel)
Van Bael & Bellis (Brussels)
Article 27(2) of Regulation No 1/2003 provides that the parties’ rights of defence are to be fully respected in proceedings by the European Commission pursuant to Articles 101 and 102 TFEU. Article 12 of Regulation 773/2004 states that the Commission must give the parties to whom it has (...)

The Indian Competition Appellate Tribunal reverses the fine against a professional association and its compliant pharmaceutical member company due to anticompetitive agreements (Maruti & Company / KCDA Karnataka Chemists & Druggists Association / Lupin)
Vaish Associates Advocates (New Delhi)
COMPAT set asides penalty imposed on Lupin and its office bearers* COMPAT vide order dated December 07, 2016 while setting aside the order dated July 28, 2016 of CCI has quashed the penalty of Rs 73 Crores imposed on Lupin Ltd. (“Lupin”) and its two officials for alleged anticompetitive (...)

The EU General Court relies on secretly-recorded telephone conversations obtained in the context of unannounced inspections (North Sea Shrimps)
Van Bael & Bellis (Brussels)
Under Article 2 of Regulation 1/2003, the Commission has the burden of proving an infringement of Article 101 TFEU. In the present case, as evidence of the cartel infringement, the Commission relied on secretly-recorded telephone conversations, and the transcripts or notes made thereof, which (...)

The Belgian Competition Authority raids several undertakings active in the sale of over-the-counter products pharmacies
Belgian Competition Authority (Brussels)
The Belgian Competition Authority confirms inspections at several undertakings active in the sale of non-prescription products in pharmacies* The Investigation and Prosecution Service of the Belgian Competition Authority (hereafter “BCA”) confirms that the BCA has conducted inspections this week (...)

The Indian Competition Appellate Tribunal sends a case back to the Competition Authority due to failure to give defendants notice for appeal before imposing fines and violating the principle of natural justice (Jet Airways / InterGlobe Aviation / Spice Jet)
Vaish Associates Advocates (New Delhi)
COMPAT sets-aside penalty imposed on domestic airlines and remands the matter back to the CCI* COMPAT by its order dated April 18, 2016 set-aside the penalty imposed on three domestic airlines by the CCI for alleged cartelization and remanded the matter back to the CCI for passing appropriate (...)

The Spanish Supreme Court upholds the fine imposed on a parent company held jointly and severally liable for the cartel behaviour of its subsidiary (Caprari)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
The Supreme Court has upheld the appeal filed by Caprari SpA (Caprari or Parent Company) against the decision of the SCA declaring the Parent Company guilty of conduct carried out by its Spanish subsidiary Bombas Caprari S.A. (Bombas Caprari or Subsidiary) (...)

The Indian Competition Appellate Tribunal cancels a fine for anticompetitive conduct against a pharmaceutical association due to infringement of the principles of natural justice during an investigation by the Competition Authority (Rohit Medical Store / HPCDA Himachal Pradesh Chemist & Druggist Alliance)
Vaish Associates Advocates (New Delhi)
COMPAT sets-aside penalty imposed on Himachal Pradesh Chemist & Druggist Alliance (HPCDA) on account of failure to observe principles of natural justice during investigation by the DG* COMPAT, by its order dated January 13, 2016, has set-aside the penalty imposed by the CCI on HPCDA and (...)

The EU General Court confirms the decision of the Commission sanctioning a cartel on the market for cathode ray tubes but reduces the fines for some undertakings (Panasonic / Samsung / LG / Philips / Toshiba)
General Court of the European Union (Luxembourg)
The General Court reduces the fines imposed by the Commission on Panasonic and on Toshiba for their participation in a cartel on the European market for tubes for television sets* However, it confirms the fines imposed on the other members of the cartel By decision of 5 December 2012, [1] the (...)

The US Court of Appeals for the Seventh Circuit rejects a claim of collusion in the text messaging sector and reminds the limits of "hot" documents (Text messaging)
BakerHostetler (Washington)
Collusion Course: The Limits of Hot Documents* Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in proving (...)

The EU Court of Justice holds that parent companies may be fined for repeated infringements even without being an addressee of the earlier decisions (Versalis)
White & Case (Brussels)
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General Court of the European Union (Luxembourg)
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White & Case (Brussels)
On 5 March 2015, the European Court of Justice (CoJ) handed down its judgment in Versalis , concerning the increasing of fines for antitrust infringements where a company is found to be a repeat offender. The judgment raises important questions about the respect for the rights of defence in EU (...)

The Ontario Superior Court of Justice holds that communications between corporations and the Competition Authority during the proffer stage of the immunity program or the leniency program should not be protected by settlement privilege (Nestlé Canada)
Norton Rose Fulbright (Toronto)
The Ontario Superior Court of Justice held in R. v Nestlé Canada Inc. that communications between corporations and the Competition Bureau (Bureau) during the proffer stage of the Immunity Program or the Leniency Program should not be protected by settlement privilege. This case has clear (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defence to allegations that immunity had been forfeited by the inclusion of non-producer members (Mushroom Direct Purchaser)
Sheppard Mullin (Los Angeles)
Agricultural Cooperative Antitrust Litigation Continues to Mushroom* Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser Antitrust (...)

The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defence to the antitrust laws (Mushroom Direct Purchaser)
BakerHostetler (Washington)
Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims* A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to the (...)

The US Court of Appeals for the Second Circuit denies Government’s en banc petition in Munibonds Statute of Limitations Case and confirms the limitation of the payment theory (Grimm)
GeyerGorey (Washington)
Second Circuit Denies Government’s En Banc Petition in Munibonds Statute of Limitations Case* In its first Munibonds trial in 2012, the Antitrust Division convicted three former General Electric executives for rigging bids to suppress interest rates paid to municipalities on funds they raised (...)

The South African Competition Authority conducts dawn raids at the offices of undertakings competing on the markets for panel beating, spray painting and towing of vehicles (Precision / Eldan / VAAC)
Nortons (Sandton)
Auto-Body Repair Centres raided by SACC* Earlier on 4 July 2014, the South African Competition Commission (“Commission”) has conducted dawn raids at the offices of Precision and Sons (“Precision”), Eldan Auto Body (“Eldan”) in Pretoria West, as well as the Vehicle Accident Assessment Centre (“VAAC”) (...)

The EU Court of Justice upholds the expansive geographic reach of a Commission dawn raid decision in a cartel investigation (Nexans)
Jones Day (Brussels)
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Jones Day (Brussels)
The European Court of Justice (ECJ) has upheld the expansive geographic reach of a European Commission dawn raid decision in the electric cables cartel investigations. Nexans, one of ten companies being investigated, had argued that the geographic scope was overbroad and provided an (...)

The Polish Competition Authority reduces severe penalty imposed by its President for obstructing inspections during a dawn raid (Polkomtel)
Affre i Wspólnicy (Warsaw)
On 18 June 2014, the Polish Court for the Competition and Consumer Protection (“SOKiK”) changed the decision issued by the President of the Office of Competition and Consumer Protection (“NCA”) in which Polish mobile telecom operator (Polkomtel) was fined for non-cooperation in the course of a dawn (...)

The Australian Competition Authority files an application seeking to challenge compulsory examination notices being part of an antitrust investigation into allegations of cartel conduct regarding a tender process for an exploration mining licence (Paul and Moses Obeid)
Australian Competition and Consumer Commission (Canberra)
Moses and Paul Obeid issue court challenge to ACCC examination notices* In response to media inquiries, the ACCC confirms that an application has been filed in the Federal Court of Australia which seeks to challenge compulsory examination notices issued by the ACCC to Paul and Moses Obeid (...)

The EU Court of Justice Advocate General Yves Bot proposes to reduce the safe harbour for directly awarded public contracts subjected to prior transparency (Fastweb)
University of Bristol - Law School
AG proposes to reduce safe harbour for directly awarded public contracts subjected to prior transparency (C-19/13)* In his Opinion of 10 April 2014 in case C-19/13 Fastweb, Advocate General Bot has proposed an interpretation of Art 2d(4) of Directive 89/665 (as amended by dir 2007/66) that (...)

The US District Court for the Eastern District of Virginia denies motion to dismiss hearing in a case concerning an alleged exclusion from competing in health care markets (Dr. Yvoune Kara Petrie / Virginia Board of Medicine)
Bona Law (San Diego)
The Virginia Board of Medicine Violated the Antitrust Laws* Last week (17-23 March 2014) was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over (...)

The EU Court of Justice reduces the fines imposed on the appellant for the failure of the General Court to take sufficient account of a substantive problem with the Commission’s decision relating to the company’s rights of defence (Ballast Nedam)
EFTA Surveillance Authority (Brussels)
Case C-612/12 P Ballast Nedam NV: Competition law, rights of the defence and reduction of fine.* The Court of Justice does not often reduce a fine imposed by the Commission on an undertaking for a breach of the competition rules when the amount of the fine has been upheld by the General Court. (...)

The UK Competition Authority brings criminal charges against ex-manager following an investigation into suspected cartel conduct in respect of the supply of galvanised steel tanks for water storage (Peter Nigel Snee)
University of East Anglia (Norwich)
Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?* The Office of Fair Trading (OFT) has charged Peter Nigel Snee under section 188 of the Enterprise Act 2002. It is alleged that he ‘dishonestly agreed with others’ to fix prices, (...)

The German Federal Court of Justice issues a decision of principle on the award of concessions for electricity and gas networks (OLG Schleswig / LG Kiel)
German Competition Authority (Bonn)
Federal Court of Justice issues decision of principle on the award of concessions for electricity and gas networks* Bonn, 18 December 2013: The Bundeskartellamt welcomes the landmark decisions issued yesterday by the Federal Court of Justice on the award of rights of way for electricity and (...)

The EU Court of Justice rules on the matter of appropriate remedy for infringements of the right to have the case adjudicated within a reasonable time (Kendrion) (Gascogne)
University of Leiden
The recent landmark cases on the reasonable time requirement: Is the Court caught between Scylla and Charybdis?* In the landmark cases Kendrion, Gascogne and Gascogne Germany the CJEU clarified some important procedural issues related to infringements of the reasonable time requirement. The (...)

The EU Court of Justice dismisses the appeal while establishing that a claim for compensation for damages arising from the General Court’s failure to adjudicate within a reasonable time must be brought before the General Court itself (Gascogne)
Garrigues (Brussels)
The Groupe Gascogne Judgment (see both sides of the story)* Last week I wrote a post about the Groupe Gascogne Judgment (and other stuff) which has elicited some interest. Somehow oddly, I will now present counter-arguments against all those who… actually agreed with me. Given that I wrote (...)

The Botswana Competition Tribunal rejects a complaint against the dual role played by the Competition Authority as both an administrative and adjudicating body in relation to a case of collusive agreement to set prices for repairing vehicles (Panel Beating Cartel)
Norton Rose Fulbright (Johannesburg)
Due process arguments come to the fore as the Botswana Competition Authority gears itself for enforcement* In September and October, the Botswana Competition Commission (Commission) took its first two rulings on cartel enforcement. Both rulings have a keen (if not almost exhaustive) focus on (...)

The Australian Federal Court establishes that a defendant has been directly knowingly involved in an anti-competitive arrangement and imposes criminal sanctions (Chaste Corporation)
Australian Competition and Consumer Commission (Canberra)
Peter Foster sentenced for contempt of court* The Federal Court has sentenced Peter Foster to three years imprisonment, with 18 months to be served and 18 months suspended, for contempt of court. Justice Logan also placed conditions on Mr Foster’s involvement in the weight loss, cosmetic or (...)

The EU Court of Justice acknowledges that two companies can independently from each other exercise decisive influence over their joint venture (Dow Chemical)
Blackstone Chambers (London)
A family affair: parental liability for joint ventures* It is trite law that a parent company will be liable for antitrust infringements committed by a subsidiary where the parent exercises “decisive influence” over the conduct of the subsidiary. Earlier this year the Court of Justice of the (...)

The EU Court of Justice confirms that a parent company can be held liable and fined for an antitrust infringement committed by its 50/50 joint venture (EI du Pont de Nemours)
Latham & Watkins (Brussels)
50:50 joint ventures – Possibility of parental liability for EU antitrust infringements confirmed* On 26 September 2013, the Court of Justice of the European Union (“CJEU”) issued two important judgments (Case C-172/12 P, El du Pont de Nemours and Others v Commission and Case C-179/12 P, Dow (...)

The EU Court of Justice confirms that a parent company can be held liable and fined for an antitrust infringement committed by its 50/50 joint venture (Dow Chemical)
Latham & Watkins (Brussels)
50:50 joint ventures – Possibility of parental liability for EU antitrust infringements confirmed* On 26 September 2013, the Court of Justice of the European Union (“CJEU”) issued two important judgments (Case C-172/12 P, El du Pont de Nemours and Others v Commission and Case C-179/12 P, Dow (...)

The EU Court of Justice acknowledges that two companies can independently from each other exercise decisive influence over their joint venture (EI du Pont de Nemours)
Blackstone Chambers (London)
A family affair: parental liability for joint ventures* It is trite law that a parent company will be liable for antitrust infringements committed by a subsidiary where the parent exercises “decisive influence” over the conduct of the subsidiary. Earlier this year the Court of Justice of the (...)

The Botswana Competition Authority refuses to confirm settlement due to lack of evidence in connection with the respondent’s involvement in the alleged bid-rigging food cartel (Ya Raheem)
Norton Rose Fulbright (Johannesburg)
Due process arguments come to the fore as the Botswana Competition Authority gears itself for enforcement* In September and October, the Botswana Competition Commission (Commission) took its first two rulings on cartel enforcement. Both rulings have a keen (if not almost exhaustive) focus on (...)

The Portuguese Competition, Regulation and Supervision Court declares cartel offence to be time-barred but upholds decision imposing fines on information exchange infringement (Canteen Cartel)
Abreu Advogados (Lisbon)
Following the Portuguese Competition Authority (PCA) decision dated 30 December 2009 imposing a total EUR 14,720,283.27 fine on five undertakings operating on the Portuguese foodservice/catering market - Eurest (Portugal) – Sociedade Europeia de Restaurantes e Alimentação, Lda. (“Eurest”), (...)

The EU General Court dismisses parallel actions brought by two diamond dealers against the Commission’s decisions not to open an antitrust investigation into certain distribution agreements established by the world’s largest producer of rough diamonds (BVGD / Spira / De Beers)
Mircea (Bucharest)
I. Introduction Any natural or legal person who can show a legitimate interest may lodge a complaint concerning an antitrust infringement as stipulated by article 7 of the Regulation No 1/2003. The Commission is not required to investigate each of the complaints lodged with it, but only to (...)

The EU Court of Justice decides that a firm that has infringed Article 101 TFEU is unable to escape the imposition of a fine merely because the illegality of its conduct was erroneously assessed by its legal counsel (Bundeswettbewerbsbehörde / Schenker)
Lexing (Liège)
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Liège University
I. The Parties The Bundeswettbewerbsbehörde, the Federal Competition Authority in Austria. The Bundeskartellanwalt, the Federal Cartel Lawyer in Austria. Thirty-one undertakings, including inter alia Schenker & Co. AG (“Schenker”), members of the Spediteur-Sammelladungs-Konferenz (the (...)

The EU Court of Justice rules, in a transport sector case, on the interpretation of Article 101 TFEU and establishes that undertakings cannot escape fine liability on account of qualified legal advice (Schenker)
ClientEarth (Bruxelles)
The principle of fault in EU competition law: C-681/11 Schenker & Co and others* In C-681/11 Schenker & Co and others this was more or less the defence a couple of Austrian transport companies came up with after being fined for infringing competition rules. Those companies had received (...)

The EU Court of Justice upholds the General Court’s ruling in a synthetic rubber cartel case (Versalis)
Van Bael & Bellis (Brussels)
On 13 June 2013, the European Court of Justice (“ECJ”) handed down a ruling upholding the General Court’s (“GC”) judgment of 13 July 2011 that reduced from € 272.25 million to € 181.5 million the fine imposed on Versalis, a subsidiary of Italian oil company Eni, for its participation in a cartel (...)

The UK Parliament gives Royal Assent to the UK Enterprise and Regulatory Reform Bill that reverses the dishonesty requirement and excludes openly made cartels
University of East Anglia (Norwich)
The UK’s New Cartel Offence: It Could Be Alright on the Day* The Enterprise and Regulatory Reform Act 2013 drops the requirement of dishonesty and excludes cartel agreements made openly. At a late stage three additional defences were introduced (s.47 ERRA). The defendant can show they did not (...)

The Lisbon Appeal Court upholds Competition Authority’s decision fining an association of parking companies for participating in a cartel (ANEPE)
Sérvulo (Lisbon)
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New University of Lisboa - Faculty of Law
On 31 December 2010, the Portuguese Competition Authority (PCA) adopted a decision finding that the Portuguese Association of Parking Companies (ANEPE) had adopted an anticompetitive decision and imposed a fine of EUR 1.971.397, 17. In short, the PCA concluded that ANEPE had coordinated its (...)

The Athens Administrative Court of Appeal upholds the Competition Authority’s decision in finding exclusionary practices in the market for salty snack products (Tasty Foods)
Mikroulea, Staikouras & Associates (Athens)
Introduction On 13 March 2013, the Athens Administrative Court of Appeal (Dioikitiko Efeteio Athinon, hereafter: the Court) delivered Ruling No 869/2013 upholding Decision No 520/VI/2011 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC). The contested (...)

The EU Court of Justice AG Jääskinen postulates that the EU principle of effectiveness precludes a provision of national law which makes the grant of access to documents by a national court subject to the consent of the antitrust infringers (Donau Chemie)
Matrix Chambers (London)
Pfleiderer revisited: the AG Opinion in Donau Chemie* On 7 February, AG Jääskinen issued his Opinion in Case C-536/11 Donau Chemie, a much anticipated case (at least among competition lawyers) concerning the compatibility with EU law of an Austrian law which prohibits third party access to the (...)

The German Federal Constitutional Court decides that the statutory imposition of interest on cartel fines is consistent with the national constitutional law
German Competition Authority (Bonn)
Bundeskartellamt welcomes decision of Federal Constitutional Court on interest charged on cartel fines* In its ruling of 19 December, 2012, which was made public today, the First Senate of the Federal Constitutional Court decided that the statutory imposition of interest on cartel fines is (...)

The UK Competition Appeal Tribunal establishes the limited probative value of early resolution agreements in the context of an appeal concerning the participation of a retailer in unlawful practices regarding cheese pricing (Tesco / OFT)
Blackstone Chambers (London)
Tesco scores partial victory in cheese cartel* In a judgment handed down this afternoon, the Competition Appeal Tribunal largely upheld Tesco’s appeal against the OFT’s decision that it had participated in unlawful agreements relating to the price of cheese: see Tesco Stores Ltd v Office of Fair (...)

The German Constitutional Court confirms the legality of obligation to pay interests for the period of an unsuccessful appeal against a cartel decision (Zinsverpflichtung)
Noerr (Brussel)
In its judgment of 19 December 2012, the German Constitutional Court held that the obligation to pay interest requested by a penalty notice of the German Federal Cartel Office ("FCO") against legal persons or associations pursuant to Sect. 81(6) Act Against Restraints of Competition ("ARC") (...)

The EU Court of Justice confirms the Commission’s authority to represent the EU in bringing an action for damages before a national court based on an infringement of the Article 101 TFEU (Otis / Kone / Schindler / ThyssenKrupp)
Mircea (Bucharest)
I. Introduction In the field of competition law the Commission plays multiple roles and acts against several forms of anticompetitive activities prohibited by Articles 101 and 102 TFEU, if the interstate trade criterion is satisfied. National competition authorities may apply the above named (...)

The EU Court of Justice rules that the principle of effective judicial protection does not preclude the Commission from bringing actions for damages before a national court (Europese Gemeenschap / Otis)
Vrije University of Amsterdam
The Commission’s double role in competition law enforcement: the Otis case* On November 6th, the Grand Chamber of the CJEU issued a ruling in Case C-199/11 (Europese Gemeenschap v Otis NV and Others). The case concerns the principle of effective judicial protection (laid down in Article 47 of (...)

The US District Court for the Southern District of Florida allows a plea of "nolo contendere", while retaining full sentencing discretion in imposing any penalty and fining against a price-fixing conspiracy engaged by an air cargo carrier (Florida West International Airways)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). US District Court blows full time on cartel proceedings against Florida West* The District Court has made the rare decision to accept a plea of no contest from airline Florida West, ending the (...)

The EU General Court dismisses an appeal against the Commission’s re-adoption of carbonless paper cartel decision (Bolloré)
Van Bael & Bellis (Brussels)
On 27 June 2012, the General Court (“GC”) handed down its judgment on the appeal brought by French investment and industrial group Bolloré against the European Commission’s re-adoption of its decision in the carbonless paper cartel. The GC upheld the fine of € 21.26 million and ruled that the (...)

The Hungarian Supreme Court declares a document acquired from an unspecified source as admissible in a bid-rigging case concerning tenders published by the Municipality of Budapest for construction and renovation works (Betonút)
Szeged University
Facts The Hungarian Competition Office (HCO) established that the defendants engaged in bid-rigging concerning certain tenders published by the Municipality of Budapest for construction and renovation works (roads, bridges) and imposed fines. The key evidence was a hand-written document that (...)

The US District Court for the Northern District of Iowa approves three settlements in a class action for price-fixing conspiracies in the concrete industry defining the case “a model for the nation” (Iowa Ready)
Wolters Kluwer (Riverwoods)
What Do Model Antitrust Class Actions Look Like?* “[O]vercome with a rare and gargantuan sense of awe,” a federal district court judge in Sioux City, Iowa, has called a consolidated class action case arising from price fixing conspiracies in the concrete industry “a model for the nation.” The (...)

The US Court of Appeals For the Seventh Circuit holds claims against a foreign price-fixing cartel in the potash industry to be either exempted under the Foreign Trade Antitrust Improvements Act or insufficient to state a cause of action under the Twombly/Iqbal pleading standards (Potash)
Cleveland University - Marshall School of Law
Potash Potash Potash!!!!! En Banc Review Is in the Hizz-ouse, Y’all!* Something striking occurred in the Seventh Circuit this year. In two different, massive antitrust class actions, in the space of about nine months, panels of that court applied the Twombly-Iqbal pleading formula to reach (...)

The German Supreme Court holds that indirect purchasers have standing to sue for antitrust damages but defendants may invoke passing-on defence (Carbonless Paper Cartel)
Jones Day (Dusseldorf)
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Linklaters (Frankfurt)
The German Federal Civil Court (BGH) has held that both direct and indirect purchasers may sue for antitrust damages, but defendants may raise the passing-on defense. Through the passing-on defense, defendants try to demonstrate that plaintiffs suffered no financial harm, as they passed on the (...)

The German Supreme Court upholds that members of a cartel can defend themselves against a claim for damages by raising the passing-on defence onto a downstream market (Carbonless Paper Cartel)
McDermott Will & Emery (Paris)
SUPREME COURT ALLOWS THE PASSING-ON DEFENSE IN ANTITRUST DAMAGES ACTIONS * The German Supreme Court, in a landmark ruling handed down on 28 June 2011, has held that members of a cartel are able to defend themselves against a claim for damages by raising the defense that the relevant applicants (...)

The EU General Court reduces fines in the Dutch beer cartel case finding that the Commission did not prove all infringements had been committed and that the duration of the procedure was excessive (Heineken)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court reduces fines in Dutch beer cartel case finding that the Commission did not prove all infringements and that the duration of the procedure was excessive (Bavaria)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU Court of Justice issues preliminary ruling holding that national courts need to balance on a case-by-case basis the interest of preserving the effectiveness of leniency programs and that of facilitating private enforcement by third parties (Pfleiderer)
Winston & Strawn (London)
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Ashurst (Frankfurt)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 14 June 2011, the European Court of Justice (ECJ) handed down a key judgment regarding the interplay between national leniency programmes and the right of (...)

The EU Court of Justice issues a preliminary ruling on disclosure of leniency documents to third parties heightening concerns about encouraging private enforcement (Pfleiderer)
University of East Anglia (Norwich)
ECJ Ruling in Pfleiderer Heightens Concerns about Encouraging Private Enforcement* The European Court of Justice (ECJ) has ruled that EU Law does not prohibit access to leniency documents by third parties seeking damages. Access should be determined according to national law, which must weigh (...)

The Court of Rotterdam decides former employees cannot invoke the right to remain silent
European Commission (Brussels)
The Netherlands: The Court of Rotterdam decides former Employees Cannot invoke the Right to remain silent* On 9 June 2011, the Court of Rotterdam (the Court) ruled that the appeals lodged by the former employees of two undertakings against the decisions of the Netherlands Competition Authority (...)

The EU General Court dismisses an appeal of parent companies for their participation in a cartel in the methacrylates sector but reduces the fines on their subsidiaries (Total / Elf Aquitaine)
General Court of the European Union (Luxembourg)
The General Court reduces the fine imposed on Arkema and its subsidiaries for their participation in a cartel in the methacrylates sector from €219.1 million to €113.3 million* However, the Court upholds the fines imposed on the parent companies Total and Elf Aquitaine By decision of 31 May (...)

The EU Court of Justice AG Kokott advises the Court of Justice to quash General Court’s judgment in soda ash cartel case (Solvay / CFK)
Van Bael & Bellis (Brussels)
On 14 April 2011, Advocate General (“AG”) Juliane Kokott advised the European Court of Justice (“ECJ”) to set aside the 2009 judgment of the General Court (“GC”) partially upholding the Commission’s 2000 decision fining Solvay and CFK for their participation in a cartel affecting the market for soda (...)

The EU Court of Justice’s Advocate General Kokott recommends annulment in soda ash cases due to infringements of the rights of defence (Solvay)
Court of First Instance of Namur
On 14 April 2011, Advocate General (“AG”) Juliane Kokott issued her opinion in cases C-109/10P and 110/10P, Solvay SAv. Commission, recommending that the Court of Justice (“ECJ”) annul two Commission decisions fining chemicals company Solvay for infringing Articles 81 and 82 EC (now Articles 101 (...)

The French Civil Supreme Court rules that non-contestation of the objections by certain parties limits others’ defence to non-participation in the infringement (Manpower / Adecco / Adia / Randstad)
Vogel & Vogel (Paris)
The Paris Court of Appeal had ruled against the world’s leading temporary employment agencies for a price cartel concerning their major clients. The Court of Cassation has delivered a most informative decision of rejection in respect of all the appeals – essentially procedural - against the (...)

The Athens Administrative Court of Appeal annuls a decision of the Competition Authority imposing fines for resale price maintenance in the automobile sector (Alto Sarris / Fiat)
Mikroulea, Staikouras & Associates (Athens)
Introduction On 22 February 2011, the Athens Administrative Court of Appeal (Dioikitiko EfeteioAthinon, hereafter: the Court) delivered Ruling No 458/2011 annulling Decision No 437/V/2009 of the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC) which had imposed (...)

The Spanish Competition Authority fines an association for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector (Asociación Nacional de Perfumería y Cosmética / STANPA)
DG COMP (Brussels)
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Perez Llorca (Madrid)
On February 7, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined Asociación Nacional de Perfumería y Cosmética (“STANPA”) €901,518.16 for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector in (...)

The Paris Court of Appeal rejects appeals by companies found to have engaged in vertical practices and abuse of dominance under both EU and national provisions in the online travel sales sector (SNCF / Expedia)
Novartis (Rueil-Malmaison)
BACKGROUND The Paris Court of Appeals (hereafter “the Court”) confirms a decision by the French Competition Council (hereafter “the Council”) which fined SNCF and Expedia, Inc. (hereafter “Expedia”) in a decision No. 09-D-06 of 5 February 2009. The appeal was brought by Karavel (a travel agency, (...)

The Paris Court of Appeal confirms the amount of fines imposed on temporary employment agencies for concerted practices under Art. 81 EC and its French equivalent and clarifies the procedural issue of access to confidential electronic documents (Manpower / Adecco / Adia / Randstad)
Juliette Goyer Avocat (Paris)
In a ruling dated 26 January 2010, the Paris Court of Appeal confirmed a decision by the French National Competition Authority (the “NCA”) sanctioning world-leading companies in the temporary employment sector for infringing Article 81 EC and its French equivalent. Background Following a (...)

The EU Court of Justice partially annuls Commission decision on rights of defence in the carbonless paper cartel (Papierfabrik August Koehler)
Van Bael & Bellis (Brussels)
On 3 September 2009, the ECJ partially set aside the CFI’s judgment and annulled the Commission’s decision in the carbonless paper cartel case. In December 2001, the Commission fined ten undertakings a total of € 313.7 million for their participation in a series of price-fixing agreements and (...)

The Portuguese Competition Authority renews the decision against milling cartel imposing fines of around 9 million euros (Cerealis / Milling cartel)
Sérvulo (Lisbon)
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Serra Lopes Cortes Martins & Associados (Lisbon)
Last July 8th 2009, the Portuguese Competition Authority (Autoridade da Concorrência - “AdC” or “PCA”) has issued a new decision imposing fines of around 9 million euros on 11 flour-milling undertakings for coordinating prices, to the detriment of consumers, for breach of Article 4 (1) a) of the (...)

The EU General Court dismisses action against Commission’s re-adopted decision relating to the steel alloy surcharge cartel (ThyssenKrupp Stainless)
Van Bael & Bellis (Brussels)
On 1 July 2009, the Court of First Instance (CFI) dismissed in its entirety an action by ThyssenKrupp Stainless AG (formerly Krupp Nirosta GmbH) against the European Commission’s re-adopted decision in the alloy surcharge antitrust proceeding. ThyssenKrupp had appealed against the re-adoption (...)

The UK High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald / British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (London)
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Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

The Turkish Competition Authority’s member of the board expresses a dissenting opinion about the legality of the fines imposed according to the fining regulations
Turkish Competition Authority (Ankara)
Stories on the Fining Regulation (1): Can Anyone Spot The Difference?* The story begins in January 2008 by the amendments made to the Competition Act. These amendments mainly contain the inclusion of the leniency and the possibility of imposition of fines on individuals. Apart from that, the (...)

The Luxembourg Administrative Court confirms the fines and daily penalties imposed by the Competition Authority on undertakings for not communicating explicit information to the Competition Inspectorate (SECS)
Arendt & Medernach (Luxembourg)
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European Bank for Reconstruction and Development
Background of the case 1. The flooring works in the new court buildings in the city of Luxembourg are still the object of the most prolific cartel procedure in the recent history of Luxembourg competition law. The case has already led to several decisions while the cartel investigations are (...)

The Local District Court of Bonn rules on access to the file in pending antitrust case (Listenpreis)
Eberhard Karls University of Tübingen
I. Introduction One of the most problematic aspects of civil antitrust litigation with respect to hardcore cartels is the factual substantiation of the claim. Although § 33 of the German Act against Restraints of Competition (ARC) lowers the burden of proof in several ways, it remains upon the (...)

The Portuguese Competition Authority accepts commitments of a leading food company in relation to vertical restraints (Nestlé)
Ana Oliveira Bruno e Associados - Sociedade de Advogados (Lisbon)
1) The Administrative Proceedings – Autoridade da Concorrência (Portuguese Competition Authority) The investigation of the practice started by a complaint presented to PCA. After investigating and analyzing the contracts entered into between Nestlé and hotels, restaurants and cafeterias (known (...)

The EU Court of Justice AG Mazák recommends rejection of appeals in French beef case (Coop de France bétail and viande)
Van Bael & Bellis (Brussels)
On 17 April 2008, Advocate General Mazák delivered an opinion in relation to the joined appeals brought before the European Court of Justice (ECJ) by the Coop de France Bétail et Viande(FNCBV) and the Fédération nationale des syndicats d’exploitants agricoles(FNSEA), the Fédération nationale (...)

The Estonian Circuit Court rules on a criminal case concerning an attempt to fix prices, share markets and engage in a collective boycott based on national provisions similar to Article 101 TFEU (Oleg Ossinovski / AS Spacecom)
TGS Baltic (Estonia)
On 11 March 2008, the Tallinn County Court (a court of appeal) upheld an earlier ruling of Harju County Court, which had convicted a railway freight services provider, AS Spacecom («Spacecom»), and its management board member Oleg Ossinovski of an attempt to agree on restrictions of competition (...)

The Lisbon Court of Commerce annuls the Competition Authority’s decision to convict 10 milling companies based on the violation of the right to due process (Cerealis / Milling cartel)
PLMJ (Lisbon)
I. The facts and the administrative proceedings On September 2005, the Portuguese Competition Authority (the “PCA”) issued a decision finding 10 milling companies (representing 75% of the market) guilty of fixing the price of wheat flour between December 2000 and August 2004, and imposed a total (...)

The Swedish Supreme Court establishes the liability of a contracting authority to pay damages for the positive contractual interest to a tenderer who would have won the tender procedure if the procurement law had been correctly applied (Ishavet)
Mircea (Bucharest)
I. Introduction A tenderer who otherwise would have won the procurement procedure, if the procurement law had been correctly applied by the contracting authority shall be entitled to receive compensation for the positive contractual interest. Moreover the liability to pay damages does not (...)

The US Supreme Court holds that an allegation of parallel conduct and a bare assertion of an agreement does not suffice to state a claim of conspiracy under the Sherman Act (Bell Atlantic / Twombly)
Paul Hastings (New York)
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Paul Hastings (New York)
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Seeger Weiss (New York)
INTRODUCTION On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In Bell Atlantic Corp. v. Twombly, No. 05‐1126, the Supreme Court (...)

The US Supreme Court affirms the necessity of pleading elements in private antitrust conspiracy claims (Bell Atlantic / Twombly)
University of Indiana
Pleading Consumer Antitrust Claims* The U.S. has long followed a system of private enforcement of law meant to redress public harm. In the law of antitrust, from the very beginning U.S. law provided a claim to plaintiffs who could show harm flowing from the violation. Convincing private (...)

The EU Court of Justice upholds the judgment of the General Court penalising the cartel of steel tubes producers known as the ’Europe-Japan Club’ (Dalmine / Sumitomo / Nippon Steel / Salzgitter)
European Court of Justice (Luxembourg)
THE COURT UPHOLDS THE JUDGMENT OF THE COURT OF FIRST INSTANCE PENALISING A CARTEL OF STEEL TUBES PRODUCERS* The producers did not prove that the Court of First Instance made errors of law in its judgment By decision of 8 December 1999 , the European Commission ordered eight undertakings (four (...)

The Lisbon Commerce Court confirms decision against shipping agents association for price-fixing but reduces the amount of fines (AGEPOR)
DLA Piper (Lisbon)
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Vieira de Almeida (Lisbon)
In January 2006 the Portuguese Competition Authority (PCA) fined AGEPOR, a Portuguese shipping agents association, € 195.000 for price fixing. AGEPOR appealed against the decision to the Lisbon Commerce Court. AGEPOR grounded its appeal both on procedural and substantive arguments. First, the (...)

The Lisbon Court of Commerce annuls the Competition Authority’s decision concerning a vertical restraint (Nestlé)
Cuatrecasas (Lisbon)
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Gleiss Lutz (Stuttgart)
On 15 February 2007, the Lisbon Court of Commerce admitted the appeal filed by the appellant Nestlé Portugal, S.A., of the decision of the Portuguese Competition Authority on infringement for vertical restraints. The case was based on the decision of the Portuguese Competition Authority, dated (...)

The EU General Court reduces the fines imposed by the Commission in the graphite electrode cartel for wrongful application of calculation method (Tokai Carbon / SGL / Nippon / Showa Denko / GrafTech / SEC)
General Court of the European Union (Luxembourg)
THE COURT OF FIRST INSTANCE REDUCES THE FINES IMPOSED BY THE DECISION OF THE COMMISSION AGAINST AN ANTICOMPETITIVE CARTEL IN THE GRAPHITE ELECTRODE MARKET The total amount of the fines is reduced from EUR 207.2 million to EUR 152.8 million In a decision of 2001, the Commission found the (...)

The EU Court of Justice upholds the judgment of the General Court in the cement cartel case and sets fines of €53.6 million (Aalborg Portland / Irish Cement / Ciments français / Italcementi / Buzzi Unicem / Cementir)
European Court of Justice (Luxembourg)
The Court of Justice upholds in substance the judgment delivered by the Court of First Instance in 2000 concerning the Cement Cartel Anti-competitive practices and agreements constitute economic infringements designed to maximise the profits of the participating undertakings. The harmful (...)

The EU General Court finds that the Commission did not exceed its investigative powers and so confirms the decision sanctioning cartels in the Greece-Italy shipping sector (Minoan / Marlines / Ventouris / Adriatica / Strintzis)
General Court of the European Union (Luxembourg)
THE COURT OF FIRST INSTANCE CONFIRMS THE SUBSTANCE OF THE COMMISSION’S DECISION SANCTIONING ANTI-COMPETITIVE CARTELS IN THE GREECE-ITALY SHIPPING SECTOR* Fines imposed on Ventouris Group Enterprises SA and Adriatica di Navigazione SpA alone were reduced on the ground that the Commission’s (...)

The EU General Court dismisses the appeal brought by steel undertakings in the "steel beams" cartel and confirms no infringement of the right to defence in the administrative procedure before the Commission (Thyssen Stahl / Corus)
General Court of the European Union (Luxembourg)
THE COURT DISMISSES SIX OF THE EIGHT APPEALS BROUGHT BY STEEL UNDERTAKINGS AND THEIR TRADE ASSOCIATION EUROFER WHICH HAD BEEN FOUND GUILTY OF ENGAGING IN A CARTEL* The Court annuls two judgments of the Court of First Instance: that concerning ARBED SA in its entirety and that concerning (...)

The EU General Court confirms the existence of a cartel in the EU district heating market and establishes that the Commission has no obligation to inform parties on a new method to calculate the amount of fines (HFB / Brugg / Løgstør / Ke Kelit / Dansk Rørindustri / LR AF / Sigma / ABB Asea)
General Court of the European Union (Luxembourg)
THE COURT OF FIRST INSTANCE CONFIRMS THE EXISTENCE OF A CARTEL IN THE EUROPEAN DISTRICT HEATING MARKET.* The fines imposed by the European Commission are generally upheld by the Court of First Instance, the total amount being EUR 83,410,000. However, the fines imposed on two undertakings have (...)

Unilateral 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)
Bird & Bird (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 Italian Supreme Administrative Court rejects an appeal lodged by a multinational drug company against a previous decision ascertaining it as having abused its dominant position by imposing unfair prices for drugs (Aspen)
Bird & Bird (Rome)
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Bird & Bird (Rome)
On 13 March, the Italian Supreme Administrative Court ("Consiglio di Stato") rejected the appeal lodged by the multinational Aspen Group against the decision of the Regional Administrative Court of Lazio (“TAR”), which fully upheld the decision adopted by the Italian Competition Authority (“ICA”) (...)

The Portuguese Competition Authority issues a statement of objections to a company for abuse of dominance to the detriment of consumers in the electricity market (EDP Produção)
Portuguese Competition Authority (Lisbon)
AdC issues Statement of Objections to EDP Produção for abuse of dominance to the detriment of consumers* The Portuguese Competition Authority (Autoridade da Concorrência – AdC) issued a Statement of Objections against EDP – Gestão da Produção de Energia, S.A. (EDP Produção) for abuse of dominance in (...)

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

The Paris Court of Appeal rejects the request against the Competition Authority’s decision regarding practices implemented on the electricity and gas market (ENGIE)
Total (Paris)
The settlement procedure in France The major change is that parties willing to conclude a settlement procedure will be informed of the minimum and maximum fine that may be imposed (and not of a percentage of reduction relating an amount of sanction which is not yet known). The disclosure (...)

The Brazilian Administrative Council for Economic Defense issues two legal opinions in investigations related to sham litigation practices (Eli Lilly do Brasil)
Madrona Advogados (São Paulo)
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Tauil & Chequer in cooperation with Mayer Brown (Sao Paulo)
On August 20, 2014, the General Superintendence of the Administrative Council for Economic Defense (“CADE”) rendered two legal opinions in investigations related to sham litigation practices recommending to CADE’s Tribunal: (i) the conviction of the companies Eli Lilly do Brasil Ltda. and Eli (...)

The EU General Court upholds the Commission decision in consideration of two exclusionary practices on the market for the supply of CPUs, opening the door to a further appeal to the Court of Justice and a possible application before the ECtHR (Intel)
University of Bristol - Law School
Could Intel challenge its 1bn Euro fine on grounds of ’corporate human rights’* After last week’s General Court Judgment in Intel v Commission, T-286/09, EU:T:2014:475, the 2 month period for Intel to appeal the confirmation of its 1bn Euro fine before the Court of Justice of the EU on points of (...)

The UK Competition Authority decides it has no grounds to take further action against fuel card operator over alleged abuse of dominance (CH Jones)
Manchester University
The facts CH Jones is a subsidiary of Fleetcor Inc and in the course of its practice it issues fuel cards under its ‘Keyfuels’ brand. The latter are payment cards to access diesel on the road and are often used by firms with a fleet of large goods vehicles. CH Jones’ customers purchase diesel (...)

The Swiss Supreme Court upholds fines against media sales and marketing services group in an abuse of dominance case (Publigroupe)
University of Geneva
In a much awaited decision, the Swiss Supreme Court dismissed an appeal directed against the decision of the Swiss Federal Administrative Tribunal confirming a fine of CHF 2.5 million (approximately € 2 million) imposed by the Swiss Competition Commission ("Comco") on Publigroupe for abuse of a (...)

The UK High Court grants an interim injunction against the use by private hire vehicles of bus lanes marked for taxis: insufficient connection with EU law (Transport for London)
Matrix Chambers (London)
Taxi wars in London – does EU law have a role to play?* On Thursday of last week the High Court granted Transport for London (TfL) an interim injunction relating to the high-profile raising of the stakes in its battle with Addison Lee (AL), the largest “private hire” (ie minicab) operator (PHO) (...)

The EFTA Court sanctions for abuse of dominant position a company active in the market for business-to-consumer parcel services with over-the-counter delivery, thus addressing the issue of judicial review (Posten Norge)
Jones Day (Paris)
A lesson on judicial review from the other European Court in Luxembourg* Legal change sometimes takes unpredictable paths: mid-April, something important happened for European law in Luxembourg, but this did not come from the European Court of Justice (the “ECJ”). Not every reader of this blog (...)

The Spanish Supreme Court rules that isolated conduct in the daily energy market constitutes a continuous abuse of dominance (Iberdola Generación)
DG COMP (Brussels)
I. The Spanish generation market As has been described in previous bulletin articles the Spanish generation market is extremely complex and heavily intervened by burdensome regulation. In a nutshell, tenders (pools) are organised every hour of the day by a public entity in order to fulfil the (...)

The US Senate Committee on the Judiciary, Subcommittee on Antitrust conducts hearings in an abuse of dominance investigation on the web search industry (Google)
Rimm-Kaufman Group (Charlottesville, VA)
Google Antitrust Hearing: 5 Takeaways* While yesterday’s Senate antitrust hearing on Google practices may have been more about spectacle than action, it was an opportunity to gain insights into the mindset of Google and the government officials that may seek to intervene in their operations. (...)

The US Court of Appeals for the Seventh Circuit rules that the campaign of a hospital holding to block a potential rival does not violate s. 2 of the Sherman Act and is protected from antitrust liability under the Noerr-Pennington doctrine (Mercatus Group / Lake Forest Hospital)
Wolters Kluwer (Riverwoods)
First Amendment Rights Provide Antitrust Shield for Successful Petitioning to Block Potential Rival* How far can a competitor go in an effort to convince a local government to block a potential rival from setting up shop in its area without running afoul of the antitrust laws? Last week, the (...)

The Lisbon Court of Commerce quashes the Competition Authority’s first-ever abuse of dominant position infringement decision in the underground ducts’ telecom network access case, upheld on appeal (PT Comunicações)
European Court of Justice (Luxembourg)
I. The case, the PCA’s decision and the judgments After receiving complaints from telecom undertakings “TvTel Comunicações” and “Cabovisão”, the Portuguese Competition Authority (hereinafter “PCA”) launched an investigation in 2003 into the allegations that Portugal Telecom Comunicações (hereinafter (...)

The EU Commission sends statements of objection following a complaint lodged by several associations representing investors against financial service company (Standard & Poor’s)
Ashurst (Milan)
Commission sends statement of Objections to Standard & Poor’s* On 16 November 2009 the Commission sent a Statement of Objections (“SO”) to Standard & Poor’s (“S&P”), a division of McGraw-Hill Companies, Inc. The SO follows a complaint lodged by several associations representing (...)

The Latvian Supreme Court upholds the Competition Authority’s decision on abuse of dominance in the telecommunication sector (Lattelecom)
Konkurences padome (Riga)
Supreme Court Upholds the Decision on Abuse of Dominant Position by Telecommunication Company* With the decision of 5 May 2009 the Senator Collegium of the Department of Administrative Cases of the Senate of the Supreme Court has dismissed legal proceedings concerning the 17 July 2002 decision (...)

The EU General Court upholds Commission’s decision against a maritime company (Compagnie Maritime Belge)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 1 July 2008, the Court of First Instance (“CFI”) issued its judgment on Compagnie Maritime Belge’s appeal of the Commission decision of 30 April 2004 (the “Decision”), which had fined it € 3.4 million for the infringements of Article 82 EC established in the Commission original decision of 23 (...)

The EU Commission closes proceedings against US chipset manufacturer for alleged abuse of dominance in the mobile phone technology sector (Qualcomm)
European University Institute (Florence)
"The Last Hundred Days Strategy"- Is the Qualcomm Case Over?* Milton Friedman and his wife Rose Friedman are known for having theorized that recently elected governments generally enjoy a period of political immunity following elections, which allows them to push reforms, including tough ones, (...)

The Spanish Competition Authority fines for the third time an electric utility for excessively high prices (Iberdrola Castellón)
European Court of Justice (Luxembourg)
The time has come for Spanish main utilities to carry out a serious competition law assessment before putting a price to the power they offer within the framework of the Spanish electricity market. Spanish antitrust authorities have fined for the third time in a row a major utility on grounds (...)

The UK High Court gives important guidelines as to the standard of proof for claiming damages in competition cases (Arkin)
Reed Smith (London)
Arkin v. Borchard Lines Ltd., [2003] All E.R. (D) 173, [2003] EWHC 687 (Comm) (10 April 2003), is important as one of the first damages claims brought in a United Kingdom court for breach of Articles 81 and 82 of the Rome Treaty involving private enforcement of competition law. It was decided (...)

Mergers

The EU Court of Justice dismisses the Commission’s appeal against the annulment of its decision to prohibit a merger in the parcel delivery market (UPS / TNT)
White & Case (Brussels)
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White & Case (Brussels)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. EU Court confirms the need for transparency and full disclosure of economic analyses in EU merger cases (UPS/TNT)* On 16 January 2019, the Court of Justice of (...)

The EU Court of Justice rules that the Commission violates rights of defence when it failed to share the final economic model used in its decision to block a merger (UPS / TNT)
Jones Day (Brussels)
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Jones Day (Paris)
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Jones Day (Brussels)
In Short The Development: The European Court of Justice ("ECJ") ruled that the European Commission ("Commission") violated UPS’s rights of defense when it failed to provide UPS with the final economic model used in its decision to block UPS’s proposed acquisition of TNT in 2013. The Result: The (...)

The EU Court of Justice Advocate General Kokott issues an opinion supporting the rights of defence of merging parties (UPS / TNT)
Van Bael & Bellis (Brussels)
On 25 July 2018, Advocate General (“AG”) Kokott issued an Opinion in which she concludes that the General Court (“GC”) was correct to annul the Commission’s 2013 decision to prohibit UPS’s acquisition of its package delivery rival, TNT Express. In the decision, the Commission relied upon a “price (...)

The EU General Court annuls a Commission decision prohibiting a merger in the parcel delivery sector on due process grounds (UPS / TNT)
White & Case (Brussels)
Background On 15 June 2012, the global specialist transport and logistics provider United Parcel Services (“UPS”) notified the European Commission of its proposed acquisition of TNT Express NV (“TNT”) under the EU Merger Regulation. UPS and TNT are both active on international express small (...)

The Irish Competition Authority clears the first otherwise anticompetitive merger using the failing firm defence (Baxter / Fannin)
Trinity College Dublin
Introduction 1 On 21 October 2015 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, cleared the acquisition by Baxter Healthcare Limited (Baxter) of Fannin Compounding Limited (Fannin), a business division of Fannin Limited which was, in turn, a subsidiary (...)

The Portuguese Competition, Regulation and Supervision Court annuls decision imposing a fine on a non-notified merger due to shortcomings related to rights of defence (ANF / Farminveste)
Vieira de Almeida (Lisbon)
Following the Portuguese Competition Authority (PCA) decision dated 28 December 2012 imposing a total EUR 149,278.79 fine on the National Pharmacy Association (Associação Nacional de Farmácias - ANF) and two of its subsidiaries, Farminveste 3 – Gestão de Participações, S.G.P.S., Lda. (Farminveste (...)

The French Supreme Administrative Court upholds the Competition Authority’s decision sanctioning a food distributor for failing to notify a concentration (Colruyt)
Gide Loyrette Nouel (Paris)
On 24 June 2013, the French Supreme Administrative Court confirmed the French Competition Authority (“FCA”)‘s decision n°12-D-12 dated 11 May 2012 imposing a €392.000 fine on Etablissements Fr. Colruyt (“Ets Fr Colruyt”), the parent company of group Colruyt, for failing to comply with article L.430-3 (...)

The Finnish Parliament approves the Competition Act introducing amendments to both merger and antitrust rules
European Commission (Brussels)
Finland: New Competition Act approved by the Parliament* On 11 March 2011, the Finnish Parliament approved the new Finnish Competition Act. The Act will enter into force in autumn 2011. The main amendments are the following. One of the major changes brought by the new law relates to the (...)

The Serbian Competition Authority clarifies that if it does not issue individual merger decision within the specified timeframe, the notified merger should be considered prohibited (Delta M)
University of Macau - Faculty of Law
On 15 October 2009 DELTA M. d.o.o. (DELTA M) , Serbian company with operations in agribusiness, food processing, retail, distribution, automotive business, real estate development and financial brokerage applied to the Serbian Competition Authority (KZK) asking for clarification of the merger (...)

The EU General Court clarifies Commission’s duty of care and third parties’ right to be heard in merger control proceedings (NVV)
Van Bael & Bellis (Brussels)
In a judgment of 7 May 2009, the Court of First Instance dismissed an appeal against the Commission’s decision unconditionally clearing the acquisition by Sovion of Hendrix Meat Group. The appellants (three interested third parties in the Commission’s Sovion/HMG proceedings) argued before the (...)

The German Federal Court of Justice confirms the prohibition of an energy merger considering that the national market for primary sales of electricity is dominated by a duopoly (E.ON / Stadtwerke Eschwege)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
In a judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) upheld a previous decision of the Higher Regional Court of Düsseldorf (Higher Regional Court) which had itself confirmed a decision of the Federal Cartel Office (FCO) blocking E.ON’s plan to (...)

The EU General Court denies the application for annulment of Commission decision on merger prohibition, though it finds that the assessment of the conglomerate effects resulting from the concentration was erroneous (GE / Honeywell International)
Sheppard Mullin (Los Angeles)
General Electric/Honeywell merger prohibition upheld by European Court of First Instance – “Conglomerate effects” analysis represents “manifest errors of assessment”* On December 14, 2005, the European Court of First Instance (“CFI”) denied the application of General Electric Company (“GE”) and (...)

The EU General Court annuls a Commission decision prohibiting a merger in the packaging industry for insufficient evidence in the examination of the potential leveraging methods (Tetra Laval / Sidel)
General Court of the European Union (Luxembourg)
THE COURT OF FIRST INSTANCE ANNULS A COMMISSION DECISION PROHIBITING THE MERGER OF TETRA LAVAL AND SIDEL AND THE RELATED DIVESTITURE DECISION.* The economic analysis of the immediate anti-competitive effects, of conglomerate effects and of the foreseeable conduct of the companies in question (...)

State Aid

The EU General Court confirms the Commission ruling on the calculation of the amount of compensation resulting from contractual obligations in the motorways sector (Autostrada Wielkopolska)
College of Europe (Bruges)
COMPENSATION TO A TOLL ROAD OPERATOR* Introduction When is a company entitled to compensation by the state? The easy answer is “when the state is liable for damage”. However, it may be possible for a company to claim compensation from the state when the state has assumed contractual (...)

The EU General Court affirms a Commission decision finding that Greek container terminal operators received incompatible State aid which must be recovered (Hellenic Republic / Commission)
College of Europe (Bruges)
* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU General Court affirms a Commission decision that compensation for public services and a capital increase granted by Sardinia to a maritime company is aid incompatible with the internal market (Regione autonoma della Sardegna)
College of Europe (Bruges)
* Article published on StateAidHub (click here). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships with a party or related third party. Article will need (...)

The EU General Court upholds a Commission decision finding that a Danish aid scheme in favour of the print media sector is compatible with the internal market (Søndagsavisen)
College of Europe (Bruges)
* Article published on StateAidHub (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships (...)

The EU General Court confirms the Commission decision holding that the Greek scheme of exclusive rights for lottery did not contain State Aid (Club Hotel Loutraki)
European University Institute (Florence)
In Brief: Case T-58/13, Club Hotel Loutraki AE and Others v Commission (judgment of 08.01.2015)* On Thursday the 8th January the GC dismissed all four pleas in the action for annulment of the Commission Decision finding that the exclusive rights granted to operate 35 000 Video Lottery (...)

The EU General Court reminds Member States that when they claim that an exemption follows from the logic of the tax system they have to make sure that they treat equally and consistently all similar cases (Ryanair)
College of Europe (Bruges)
* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU General Court confirms that the Commission has a large margin of discretion in determining the compatibility of restructuring aid (ABN Amro)
College of Europe (Bruges)
* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice reinforces the Plaumann test and re-emphasizes the role attributed to the national courts within the framework of the preliminary ruling procedure to ensure judicial review of the legality of EU acts (Telefónica)
University of Bristol - Law School
What’s left of the ’new limb’ of Art 263(4) TFEU after Inuit and Telefonica? (C-274/12 P)* In its Judgment of 19 December in case C-274/12 P Telefonica v Commission, the CJEU has continued to define (and minimise) the scope of Article 263(4) TFEU and, particularly, the ’new’ third limb introduced (...)

The EU General Court rules that an unlimited State guarantee granted to the postal services company constitutes incompatible State aid (La Poste)
College of Europe (Bruges)
Two Judgments: a) Unlimited State Guarantees and b) The Discretion of the Commission in Restructuring Measures* Main points Unlimited state guarantees are never compatible with the internal market. The existence of an unlimited guarantee and its benefits can be inferred from the relevant (...)

The EU General Court annuls the Commission’s decision by which it approved all of the measures adopted by France in favour of Corsica ferries (Corsica Ferries France)
Mircea (Bucharest)
A. Essential factual and legal aspects The shipping company, Corsica Ferries France SAS, applicant in the present dispute, offers regular ferry services to Corsica departing from continental France (Marseille, Toulon and Nice) and Italy. The shipping company and beneficiary of the aid measure (...)

The EU General Court confirms the Commission’s decision ruling that the Province of Burgenland had granted State aid which was not compatible with the common market (Land Burgenland)
Trummer & Thomas (Vienna)
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Trummer & Thomas (Vienna)
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Borealis (Vienna)
I. Introduction On 28 February 2012 the General Court confirmed the European Commission’s (“Commission”) decision of 30 April 2008 and ruled that the Province of Burgenland had granted State aid to Grazer Wechselseitige Versicherung AG (“GRAWE”) which was not compatible with the common market. (...)

The EU Court of Justice upholds the General Court’s decision addressing the issue of the admissibility of action in state aid cases under the Plaumann test (Comitato Venezia vuole vivere)
European Commission - Legal Service (Brussels)
Death in Venice: The end of a Commission’s locus standi theory in State aid cases?* Following my previous post, I would like to briefly refer to another interesting battlefield within the State aid area: the locus standi of the beneficiaries of aid schemes (think, for instance, of tax (...)

A Slovakian Regional Court rules on the central office on employment failure to issue formal decisions on its refusal to grant de minimis State aid (Emil Krajèík)
Nedelka Kubáč advokáti (Bratislava)
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Ružička Csekes (Bratislava)
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Ružička Csekes (Bratislava)
The Regional Court ruled that the Central Office on Employment as well as regional employment offices breached rules on administrative proceedings by omitting to issue formal decisions on refusal to grant the de minimis state aid and incorrectly assessed criteria for provision of de minimis (...)

Procedures

The US DoJ announces updates to civil investigative demand forms and deposition process
Dechert (Philadelphia)
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Dechert (Washington)
,
Dechert (Philadelphia)
The DOJ’s Antitrust Division announced updates late last week to its Civil Investigative Demand (CID) form, explicitly codifying it intent to potentially use materials received in response to CIDs to launch secondary investigations or refer matters to other government enforcement authorities or (...)

The US DoJ announces updates to civil investigation demand forms and deposition process
US Department of Justice - Antitrust Division (Washington)
Antitrust Division Announces Updates To Civil Investigative Demand Forms And Deposition Process* Assistant Attorney General Makan Delrahim of the Justice Department’s Antitrust Division announced today that the Antitrust Division has implemented two uniform updates to its Civil Investigative (...)

The Paris Court of Appeal annuls dawn raids conducted by the Competition Authority to find evidence of an alleged price-fixing cartel in the domestic appliance sector (Whirlpool)
University of Paris I Panthéon-Sorbonne
,
Ashurst (Paris)
On 8 July 2020, the Paris Court of appeal ("the Court") annulled dawn raids conducted by the French Competition Authority ("the FCA") at Whirlpool’s premises in 2014. On 27 and 28 May 2014, the FCA raided Whirlpool’s premises to find evidence of an alleged price-fixing cartel in the domestic (...)

The Finnish Deputy Chancellor of Justice declares that the Competition Authority’s policy to prohibit recordings of hearings is declared unlawful under the national Competition Act
Bird & Bird (Helsinki)
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Bird & Bird (Helsinki)
According to the decision of the Deputy Chancellor of Justice ("DCJ"), responsible for monitoring the lawfulness of the operations of public authorities, the Finnish Competition and Consumer Authority ("FCCA") cannot restrict the right of attorneys to record the hearings conducted by the FCCA (...)

The EU Commission consults stakeholders on a possible competition tool that would allow addressing structural competition problems, such as tipping markets, in a timely and effective manner
DG COMP (Brussels)
Antitrust: Commission consults stakeholders on a possible new competition tool* The European Commission has published today an inception impact assessment as well as an open public consultation inviting comments on exploring the need for a possible new competition tool that would allow (...)

The EU Commission launches consultations on ex-ante competition enforcement in platform-based and other industries
Baker Botts (Washington)
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Baker Botts (Brussels)
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Baker Botts (Brussels)
Recently, the European Commission (“EC”) launched two major public consultations for new legislative tools intended to step up antitrust enforcement in digital and other markets. One consultation relates to a new competition enforcement tool that would allow the EC to pro-actively intervene in (...)

The Lithuanian Competition Authority publishes explanatory note clarifying its dawn raids procedure
Lithuanian Competition Authority (Vilnius)
Konkurencijos Taryba Publishes Explanatory Note on Inspections Performed at Business Premises* The Lithuanian competition authority Konkurencijos taryba has prepared an explanatory note for companies and their lawyers to give more clarity on the procedures of the inspections carried out at (...)

The EU Court of Justice confirms the right of access to documents contained in the file of a marketing authorisation application for a medicinal product (PTC Therapeutics / MSD Animal Health)
European Court of Justice (Luxembourg)
The Court confirms the right of access to documents contained in the file of a marketing authorisation application for a medicinal product* An objection to such access must explain the nature, purpose and scope of the data whose disclosure would undermine commercial interests In the judgments (...)

The US District Court for the District of Arizona receives a complaint challenging the constitutionality of the FTC’s administrative process in merger review (Axon / FTC)
Sheppard Mullin (Washington)
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Sheppard Mullin (San Francisco)
AXON SUES FTC OVER USE OF ADMINISTRATIVE ADJUDICATION IN MERGER INVESTIGATIONS * On January 3, 2020, Axon Enterprises Inc. filed a complaint against the Federal Trade Commission in the United States District Court for the District of Arizona challenging the constitutionality of the FTC’s (...)

The Mexican Competition Authority releases guidelines that recognise attorney-client privilege in antitrust investigations
Jones Day (Mexico)
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Jones Day (Washington DC)
In Short The Development: Mexico’s antitrust authority, the Comisión Federal de Competencia Económica ("COFECE"), released guidelines that recognize the attorney-client privilege in antitrust investigations. Background: Mexican law requires that lawyers maintain professional secrecy, which (...)

The EU General Court annuls a €33.6 million fine imposed in relation to the Euro Interest Rate Derivatives cartel because of the Commission’s insufficient reasoning on the applied calculation method (HSBC)
Liège University
In yet another bank cartel case, the EU General Court (“GC” or “the Court”) takes a position consistent with its previous case law as regards the right to defence of the parties and annuls the fine imposed on HSBC due to insufficient reasoning. In addition, the GC assesses the conditions for (...)

The US Supreme Court issues a decision limiting the circumstances under which a federal agency may be compelled to disclose the confidential information received by the agency, from a private party (Food Marketing Institute / Argus Leader Media)
Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (Washington)
,
Cleary Gottlieb Steen & Hamilton (Washington)
On June 24, 2019, the Supreme Court of the United States issued an important decision limiting the circumstances under which a federal agency may be compelled to disclose “confidential” information the agency received from a private party, and which the agency seeks to withhold under the Freedom (...)

The Indonesian Competition Authority publishes its regulation in the procedure for cases of monopolistic practices and unfair competition
Baker McKenzie (Jakarta)
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Baker McKenzie (Jakarta)
In mid-April 2019 the Business Competition Supervisory Commission (Indonesian acronym: KPPU) published its Regulation No.1 of 2019 on the Procedure for Cases of Monopolistic Practices and Unfair Competition (Regulation No.1 of 2019), replacing KPPU Regulation No. 1 of 2010 of the same name. (...)

The International Competition Network adopts a tool of cooperation to identify the main principles guaranteeing procedural fairness in procedures that implement competition law
International Competition Network (ICN)
A new tool of international cooperation to boost procedural fairness* The International Competition Network (ICN), gathering 138 international competition authorities, has adopted a new tool of cooperation, the Framework on Competition Agency Procedures (thereafter the “CAP”). The CAP fully (...)

The Turkish Competition Authority fines a fertiliser supplier for hindering an on-site inspection (Ege Gübre Sanayii)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
On May 3rd, 2019 the Turkish Competition Board (“Board”) published its reasoned decision dated February 7th, 2019 and numbered 19-06/51-18 with respect to the hindering of the on-site inspection conducted in Ege Gübre Sanayii A.Ş. (“Ege Gübre”). The decision concerns the evaluation on whether Ege (...)

The EU Commission publishes guidelines to facilitate access to antitrust files
Court of First Instance of Namur
On 12 December 2018, the European Commission (“Commission”) published two new guidance documents facilitating access to the Commission’s files by undertakings subject to antitrust proceedings. These documents are part of the Commission’s efforts to increase the transparency of competition (...)

The OECD holds a roundtable on the treatment of legally privileged information in competition proceedings
OECD - Competition Division (Paris)
Most OECD jurisdictions protect the confidentiality of the relationship between a client and its attorney, and grant parties in competition proceedings the right to resist disclosure of protected information to public bodies and third parties. Legal professional privilege is a corollary of the (...)

The Spanish Supreme Court recognises the investigated companies’ rights of opposition to dawn raids in an energy sector case (Repsol)
CMS Albiñana y Suárez de Lezo (Madrid)
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CMS Albiñana y Suárez de Lezo (Madrid)
On 17 September 2018, the Spanish Supreme Court reinforced the necessary requirements for the Spanish Competition Authority (“CNMC”) to carry out competition dawn raids by recognizing the investigated companies’ “right of opposition” to inspections when the inspectors refuse to inform them of the (...)

The High Court of Delhi rejects a company’s appeal and clarifies a number of procedural issues including the period when the recall application can be filed (Cadila Healthcare)
Vaish Associates Advocates (New Delhi)
Delhi High Court Division Bench clears procedural and jurisdictional issues in antitrust enquiry by the CCI* In a landmark judgement dated September 12, 2018, on a LPA filed by Cadila Healthcare Limited (“Cadila”), the division bench of the Delhi High Court, comprising of Justice S. Ravindra (...)

The German Federal Constitutional Court upholds limitations to the prohibition of seizure of evidence at law firms (Volkswagen)
White & Case (Hamburg)
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White & Case (Berlin)
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White & Case (Frankfurt)
The protection from seizure by law enforcement, which the client-attorney privilege affords to the findings gathered by lawyers who are commissioned with internal investigations at businesses, has narrow limits. The affiliate of a law firm’s client has been denied protection from seizure by the (...)

The EU Court of Justice rejects an appeal against the publication by the Commission of confidential information (Nexans)
Court of First Instance of Namur
On 12 June 2018, the Court of the Justice of the European Union (“ECJ”) rejected the appeal lodged by Nexans against the Order of the President of the General Court of 23 November 2017, which had rejected Nexans’ request to prevent the publication by the Commission of confidential information in (...)

The EU Court of Justice rejects a cartel participant’s appeal concerning the inclusion of allegedly confidential information in the non-confidential version of the infringement decision (Nexans)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
By order of 12 June 2018, the Vice President of the CJEU dismissed the appeal lodged by Nexans France SAS and Nexans SA (collectively, Nexans) against the order of the President of the GCEU of 12 July 2017. The latter rejected Nexans’s application for an interim injunction to prevent the EC from (...)

The High Court of Delhi upholds the right to counsel during antitrust investigation by Director General but restricts the scope of counsel to exclude direct consultation with client (Oriental Rubber)
Vaish Associates Advocates (New Delhi)
Delhi High Court upholds right to counsel during DG investigation* The division bench of the Delhi High Court by its judgement dated May 24, 2018 in Competition Commission of India and Anr. v. Oriental Rubber Industries Pvt. Ltd. has upheld the right of a person summoned by the Director (...)

The High Court of Delhi refuses to interfere with prima facie order passed by the Competition Authority post submission of Director General’s Investigation Report (Cadila Healthcare)
Vaish Associates Advocates (New Delhi)
Delhi High Court refuses to interfere with prima facie order passed by CCI post submission of DG Investigation Report* The High Court of Delhi in a recent judgement dated March 9, 2018 has refused to interfere in a pending inquiry after the submission of the Director General’s (DG) (...)

The Brussels Court of Appeal clarifies the obligation of the Competition Authority to provide statement of reasons regarding documents seized during dawn raids (Distripaints / Novelta)
Court of First Instance of Namur
On 13 December 2017, the Brussels Court of Appeal (the “Court”) held that documents seized by the Belgian Competition Authority (“BCA”) during an inspection had been legally included in the scope of the investigation as the BCA had provided a satisfactory statement of reasons following a (...)

The Moldovan Competition Authority fines three companies for failure to submit to an on-site inspection (Cifroteh / Interacces-M / Glamis)
University of Macau - Faculty of Law
On 16 October 2017 the Competition Council (CC) fined three undertakings for the failure to submit to an on-site inspection and providing false or misleading information to the representatives of the CC thus obstructing the ongoing investigation. The Competition Law authorizes the CC to carry (...)

The Moldovan Supreme Court of Justice clarifies the rules on the appointment of the members of the Competition Authority (Feodor Gladii)
University of Macau - Faculty of Law
On 19 July 2017, the Supreme Court of Justice (SCJ) of the Republic of Moldova has clarified the procedural rules concerning the appointment of the members of the Competition Council (CC) in a case concerning the alleged discrimination at the workplace. The Moldovan Competition Law provides (...)

The English High Court rules that notes of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by legal advice privilege or lawyers’ working papers privilege (RBS Rights Issue Litigation)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (London)
In December 2016, the English High Court ruled that transcripts, notes and other records of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by either legal advice privilege (“LAP”) or lawyers’ working papers privilege. The (...)

The Spanish Competition Authority holds that mobile phones are not safe from dawn raid scrutiny (Nougat cartel)
DG COMP (Brussels)
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Hogan Lovells (Brussels)
Employee’s mobile phones not safe from dawn raid scrutiny, Spanish court finds* On 7 April 2016, the CNMC (Spain’s National Authority for Markets and Competition) Council imposed fines totalling €6.12 million on six Spanish nougat (“turrón”) producers for agreeing to share the market of the main (...)

The Irish High Court finds that the Competition Authority has exceeded its dawn raid powers in seizing digital material in bulk (CRH / CCPC)
McCann FitzGerald (Dublin)
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McCann FitzGerald (Brussels)
Introduction In CRH plc v The Competition and Consumer Protection Commission the Irish High Court found that the Irish Competition and Consumer Protection Commission (“CCPC”) had exceeded its dawn raid powers in seizing digital material in bulk. The High Court granted orders preventing the CCPC (...)

The EU Court of Justice requires the Commission to provide adequate reasons for its requests for information from cement manufacturers during the course of a cartel investigation (Cement Case)
United Kingdom’s Competition Authority - CMA (London)
THE EUROPEAN COURT OF JUSTICE REQUIRES THE EUROPEAN COMMISSION TO PROVIDE ADEQUATE REASONS FOR ITS REQUESTS FOR INFORMATION* On March 10, 2016, the Court of Justice of the European Union (CJEU) rendered its judgment in the so-called Cement case, (C-247/14 P HeidelbergCement v Commission, (...)

The Supreme Court of British Columbia denies disclosure based on public interest privilege (Pro-Sys / Microsoft)
Cassels Brock (Toronto)
Documents and information that the Competition Bureau collects from third parties during its investigations are protected by public interest privilege from disclosure to plaintiffs in private actions, the BC Supreme Court has ruled. The plaintiffs in a class action alleging that Microsoft (...)

The Indian Competition Appellate Tribunal dismisses application for review of its earlier decision and delineates the difference between “power of review” and that of “appeal” (TDI Fun Republic Shops Owners’ Welfare Association / E-City Property Management and Services)
Vaish Associates Advocates (New Delhi)
Competition Appellate Tribunal (COMPAT) pronounces decision on the scope of review* The COMPAT in its order dated 18.11.2015, has dismissed an application for review of COMPAT’s decision dated September 1, 2015 through which it had dismissed the appeal preferred by the Informant against a (...)

The Canadian Federal Court provides practical guidance for parties responding to compulsory production orders from the Competition Authority (Bell Mobility)
Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Toronto)
Responding to Compulsory Production Orders from the Competition Bureau: Federal Court of Canada Provides Practical Guidance* Canada’s Commissioner of Competition is armed with a variety of compulsory powers that he can use in pursuing investigations. One such power is the ability, with the (...)

The US Congress passes a bill that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation
Wolters Kluwer (Riverwoods)
Antitrust Whistleblowers Get Another Shot at Federal Protection from Retaliation by Employers* A bill is advancing through the U.S. Senate that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation. The (...)

The US Congress passes antitrust whistleblower protection Act
GeyerGorey (Washington)
Should There Be an Antitrust Whistleblower Statute?* On July 22cd, the Senate passed the Criminal Antitrust Anti-Retaliation Act of 2015. The bill now goes to the House for consideration. If signed into law the Act will create for the first time whistleblower protections for employees who (...)

The UK High Court renders a judgment regarding a cartel damages settlement exploring what “collateral defence” means (W.H. Newson Holding / IMI)
Blackstone Chambers (London)
Settling cartel damages actions: contribution defendants beware* Anyone who has ever tried to settle a cartel damages case will know that the law relating to settlements is fraught with difficulty. The recent judgment of the High Court in IMI Plc v Delta Ltd [2015] EWHC 1676 (Ch) highlights (...)

The English Court of Appeal answers the question of when a decision should be remitted to a different decision-maker (HCA International)
Blackstone Chambers (London)
When should a decision be remitted to a different decision-maker?* The Court of Appeal’s answer to this question in HCA International Limited v CMA [2015] EWCA Civ 492 was, in effect: rarely. The judgment, which contains some serious criticism of the CMA even though it won the case, (...)

The Australian Federal Court rules against submissions on agreed penalties (Fair Work Building Industry Inspectorate / Construction, Forestry, Mining and Energy Union)
Deakin University (Geelong)
On 1 May 2015 the Full Court of the Federal Court of Australia ruled that it was not permissible for parties to make joint submissions as to the appropriate ‘pecuniary penalty’ to be imposed: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (...)

The EU Court of Human Rights rules that French dawn raids breached fundamental rights (Vinci / GTM)
JPTT-Vitale (Paris)
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White & Case (Brussels)
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White & Case (Brussels)
The European Court of Human Rights (the “ECtHR”) has ruled in the Vinci case that the circumstances surrounding the electronic removal of documents and computer files during a dawn raid violated two companies’ privacy rights enshrined in the European Convention on Human Rights (“ECHR”) . The case (...)

The EU Court of Human Rights rules that dawn raids carried out at the premises of two companies by the French Department for Competition, Consumer Protection and Fraud violates both the rights of defense and the right to privacy (Vinci / GTM)
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Paris)
The European Court of Human Rights (ECtHR) recently ruled that dawn raids carried out at the premises of two French construction companies by the DGCCRF (French Department for Competition, Consumer Protection and Fraud) violated both the rights of defense and the right to privacy, due to (...)

The Italian State Council sheds light on the scope of parties’ right of access to confidential documents held by the Competition Authority for the purpose of their defence in civil proceedings (Esso Italiana)
Legance - Studio Legale Associato (Rome)
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Legance - Studio Legale Associato
Introduction By judgment n. 1585/2015 of 25 March 2015, the Italian Council of State (Consiglio di Stato, hereinafter “CoS”), upheld the decision of the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter “ICA”) not to grant Esso Italiana S.r.l. (hereinafter (...)

The Czech Competition Authority announces that it will recommence dawn raids
Braun (Prague)
The Prohibition on Dawn Raids in the Czech Republic has Ended* Last autumn, the Czech Antitrust Office had announced that it halted its dawn raids. The decision came from – what many felt – was a surprise decision of the European Court of Human Rights in Strasbourg (ECHR) dated 2 October 2014 (...)

The UK Competition Appeal Tribunal holds that interveners may be in the same position as appellants, and that the test for admitting new grounds is substantially the same as that for fresh evidence (British Telecommunications / OFCOM)
Blackstone Chambers (London)
Fresh grounds and evidence before the CAT* On the face of it, BT was the main winner in this week’s ruling from the Competition Appeal Tribunal: see British Telecommunications plc v Office of Communications [2015] CAT 6. However, the decision, which makes interesting comments on the rights of (...)

The Indian Competition Appellate Tribunal orders to the Competition Authority to follow due process by ensuring neutrality and fairness in adjudication and raising the bar for the standard of proof (Board of Control for Cricket in India / CCI)
Lakshmikumaran & Sridharan (New Delhi)
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Lakshmikumaran & Sridharan (New Delhi)
Introduction The role of procedural justice and it’s value in shaping antitrust jurisprudence in India has never felt stronger than now. Due process has evolved as the most contemporary buzzword in the story of antitrust enforcement in India. Many of notable orders passed by the Competition (...)

The EU Advocate General Nils Wahl recommends the avoidance of "fishing expeditions" during dawn-raid (Deutsche Bahn)
Latham & Watkins (Brussels)
European Commission dawn raids – Advocate General recommends the avoidance of “fishing expeditions”* Earlier this month, Advocate General Wahl delivered his opinion in the Deutsche Bahn1 case. This case concerns important practical principles which govern the conduct of European Commission dawn (...)

The Slovak Supreme Court outlines the principles of effective ex-post court review of dawn raids (Stengl Consulting)
Diwok Hermann Petsche (Baker McKenzie Vienna)
Introduction The Slovak Supreme Court (SSC) issued in February 2015 a ruling concerning the ex-post court review of unannounced inspections (dawn raids). Following the decision of the ECHR in Delta Pekárny which stressed the importance of national judges overseeing the seizures und inspections, (...)

The Spanish Supreme Court annuls, in two landmark rulings, two decisions from the Competition Authority due to a violation of the fundamental right to inviolability of the home by the Authority (UNESA)
Callol, Coca & Asociados (Madrid)
,
Callol, Coca & Asociados (Madrid)
,
Callol, Coca & Asociados (Madrid)
The Spanish Supreme Court annuls, in two landmark rulings, two decisions from the Competition Authority due to a violation of the fundamental right to inviolability of the home by the Authority The Supreme Court has annulled inspections carried out by the National Competition Commission (NCC) (...)

The Belgian Constitutional Court confirms the legality of a separate appeal procedure against investigative measures of the Competition Authority (Ordre des barreaux francophones et germanophone)
Simmons & Simmons (Brussels)
,
Euroclear (Brussels)
In brief In a judgment of 10 December 2014 the Constitutional Court confirmed the legality of a separate appeal procedure against investigative measures of the Belgian Competition Authority. The Constitutional Court ruled that the appeal procedure, which is only available following the (...)

The Spanish Supreme Court annuls inspections on a professional association on grounds of insufficient reasons for the inspection decision (UNESA)
Cuatrecasas (Barcelona)
,
Cuatrecasas (Barcelona)
On December 10, 2014, the Spanish Supreme Court issued judgment number 4201/2011, allowing the appeal that the Asociación Española de la Industria Eléctrica (“UNESA”) filed against the judgment of the Audiencia Nacional (Spanish Court of Appeal, “AN”) of June 2, 2011. The AN’s judgment had dismissed (...)

The UK High Court of Justice orders the disclosure of a four-years old unpublished decision of the EU Commission to a confidentiality ring of claimants and defendants (Emerald Supplies)
Blackstone Chambers (London)
High Court tests the limits of confidentiality in EC infringement decisions* The European Commission came in for some stern criticism from the High Court this week, in a case which looks set to test the boundaries of confidentiality in EC infringement decisions: see Emerald Supplies v BA (...)

The Canadian Supreme Court confirms plaintiffs’ ability to obtain disclosure of wiretap evidence obtained in connection with criminal competition law investigations (Imperial Oil)
Steve Szentesi Law Corporation (Vancouver)
Canadian Supreme Court Clears Criminal Wiretap Evidence For Use in Competition Class Actions* In an important decision released on October 17, 2014, Imperial Oil v. Jacques, 2014 SCC 66, the Canadian Supreme Court confirmed plaintiffs’ ability to obtain disclosure of wiretap evidence obtained (...)

The Canada Supreme Court rules that civil antitrust plaintiffs may receive wire-tap evidence obtained in a criminal investigation (Imperial Oil)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
Civil Antitrust Attorneys Receive Wire-Tap Evidence* The Canada Supreme Court ruled earlier this month that civil antitrust plaintiffs may receive wire-tap evidence obtained in the criminal investigation into an alleged price-fixing scheme by several large gas companies. During the criminal (...)

A US District Judge holds that an antitrust compliance policy can fall outside of attorney-client privilege (Domestic Drywall)
Siemens (New York)
,
Patterson Belknap Webb & Tyler (New York)
Are Antitrust Compliance Programs Protected by Attorney-Client Privilege?* We’ve previously written about the components of effective antitrust compliance programs and the potential benefits corporations may achieve by adopting them. (Read some of our posts here and here.) In drafting (...)

The EU Court of Human Rights condemns the Czech Republic for lack of effective independent control of competition dawn raids (Delta Pekarny)
Braun (Prague)
No More Dawn Raids in the Czech Republic* For a few weeks now, the Czech Antitrust Office has stopped its dawn raids. The reason for this stems from the surprising decision of the European Court of Human Rights in Strasbourg (ECHR) dated 2 October 2014 (DELTA PEKARNY a.s., complaint number (...)

The UK Competition Appeal Tribunal rules in favour of applicants seeking disclosure of documents from the Competition Authority case file concerning completed investigations (HCA)
Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
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Norton Rose Fulbright (London)
Introduction In a judgment published in July 2014, the Competition Appeal Tribunal (the CAT) ruled in favour of applicants seeking disclosure of documents from the Competition and Markets Authority (the CMA) case file concerning completed investigations. The judgment arose in connection with (...)

The Ontario Superior Court of Justice holds the presumption that possession of documents, persons, or firms implies knowledge of their contents is unconstitutional in a criminal context (Marina Durward / Devon Group / Spearhead Management / TPG Technology Consulting)
McMillan (Toronto)
,
McMillan (Toronto)
Canadian Cartel News – Volume 5 – One Place Where Possession is not Nine Tenths of the Law* Section 69(2) of the Competition Act provides that, by possessing documents, persons and firms are deemed to know their contents and to have done what the documents say was done. Particularly in the era (...)

The EU Court of Justice upholds the Commission’s first withdrawal of immunity for cartel whistleblower but finds the General Court failed to timely adjudicate (Deltafina / FLS Plast)
Jones Day (Brussels)
The European Court of Justice has upheld a €30 million fine against cartel whistleblower Deltafina, which was imposed following the withdrawal of Deltafina’s conditional immunity as a result of the breach of its duty to cooperate under the European Commission’s leniency program. This ruling (...)

The EU General Court holds that a duty to procure specific documents might be imposed on the Commission at the request of an undertaking which is the subject to an antitrust investigation under certain circumstances (Intel)
Mircea (Bucharest)
Access to documents not to be found in the Commission’s possession I. Background The Intel Cases have occupied the international arena of antitrust litigation for the past ten years and a definitive resolution has not been reached yet. The administrative proceeding initiated by the Commission (...)

The EU General Court dismisses an action for annulment on a claim of the excessive length of the proceedings since the applicant did not show any negative consequences impeding the right to a fair trial (Reagens)
EFTA Surveillance Authority (Brussels)
Case T-30/10 Reagens SpA v Commission: unsubstantiated pleas and length of proceedings The General Court’s judgment in Case T-30/10 Reagens SpA v Commission EU:T:2014:253 (alternative link here) doesn’t really break new ground. But it does remind applicants of a few basic truths. In some ways (...)

The US DoJ announces its first-ever successfully litigated extradition of a foreign citizen to the US in a federal criminal antitrust case (Romano Pisciotti)
DLA Piper (Frankfurt)
The United States Department of Justice has announced “its first-ever successfully litigated extradition of a foreign citizen to the United States in a federal criminal antitrust case” – the extradition to the US from Germany of an Italian citizen, indicted in the so-called marine hose cartel, and (...)

The US Supreme Court affirms the judgment of the Court of Appeals for the Sixth Circuit and gives voice to criticism against the traditional standing test for antitrust claims (Lexmark International / Static Control Components)
Womble Bond Dickinson (Washington)
Supreme Court Creates New Standing Test For Asserting False Action Claim Under Lanham Act* On March 25, 2014, the Supreme Court issued a unanimous opinion, authored by Justice Scalia, in Lexmark International, Inc. v. Static Control Components, Inc. In a previous post, I discussed my (...)

The EU Commission examines a complaint against Germany on the matter of discriminatory treatment of EU citizens in connection with the extradition of an Italian citizen to the US on an antitrust charge (Romano Pisciotti)
University of New South Wales (Sydney)
Cartel offender takes action against EU* In early April, the US Department of Justice’s Antitrust Division (DoJ) successfully extradited Romano Pisciotti – an Italian national - from Germany on an antitrust charge. It has been revealed this week that Mr Pisciotti has raised a legal challenge (...)

The EU General Court confirms the practice of the Commission regarding requests for information based on simple presumptions (Cementos Portland Valderrivas)
French Competition Authority (Paris)
,
Norton Rose Fulbright (Paris)
On March 14, 2014, the General Court of the European Union (General Court) has confirmed the practice of the European Commission (Commission) regarding requests for information based on simple presumptions. The judgments demonstrate a bias in favour of the effectiveness of inspections (...)

The UK Parliament adopts a proposal for an opt-out regime from contingency fees in collective actions
Quinn Emanuel Urquhart & Sullivan (London)
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IMF Bentham (Sydney)
Sharing Risk in Collective Actions* With legislation to introduce collective actions currently making its way through Parliament (see our previous blog here), we are pleased to welcome a guest blog from Elaine Whiteford of King & Wood Mallesons LLP and Oliver Gayner of Burford Capital (...)

The German Federal Court of Justice recognizes that information which became known to lawyers in the process of acquiring new clients may be subject to the right to refuse testimony
Commeo (Frankfurt)
In its decision of 18 February 2014, the Federal Court of Justice (the “Court”) considered the right to refuse testimony to apply to any information which became known to a lawyer in the course of two telephone calls he made for the purpose of the acquisition of a new client. As a consequence, (...)

The EU Parliament presents a report comprising amendments to the Commission’s legislative proposal concerning the regime of actions for damages prompted by infringements of competition law
Mircea (Bucharest)
Introduction In the beginning of the process of decentralization of the enforcement of competition law in the EU the necessity to encourage the development of private enforcement appeared to be more of a theoretical proposition than a tangible reality. Ten years after the adoption of the (...)

The Dutch Competition Authority allows blocking certain internet services onboard trains of the national railway company as an exception from the net neutrality rule (T-Mobile)
Netherlands Authority for Consumers & Markets (The Hague)
Telecom company T-Mobile is allowed to restrict free internet access on board trains* The Netherlands Authority for Consumer and Markets (ACM) has concluded that Dutch telecom company T-Mobile is allowed to block certain services such as YouTube and Spotify on the free Wi-Fi-network on board (...)

The New Zealand Competition Authority sets guidelines for international information requests
New Zealand Commerce Commission
Commerce Commission sets guidelines for international information requests* The Commerce Commission has today released its guidelines for Overseas Requests for Compulsorily Acquired Information and Investigative Assistance. The guidelines explain how the Commission deals with requests from (...)

The Swedish Competition Authority finds a breach of the proportionality principle in relation to the exclusion of suppliers who use more qualified nursing personnel than the minimum imposed in the tender specifications (Systrarna Odh)
Mircea (Bucharest)
Best country to grow old The UN ranked Sweden in a recent study as best country in the world for treatment of elderly. The Swedish public procurement markets for care services have been opened to competition via the system of public procurement and more recently via a system based on freedom (...)

The EU Court of Justice rules on the procedural and substantial provisions applicable to an antitrust claim and establishes that court proceedings of an excessive duration violated Article 47 of the Charter of Fundamental Rights of the EU (Groupe Gascogne)
University of Bristol - Law School
It’s for the GC to decide, but it’s not ok: CJEU rules on ’excessive duration’ of competition law litigation (C-40/12 P)* In a batch of impatiently expected Judgments of 26 November 2012, the CJEU has ruled on the procedural and substantial rules applicable to a claim that (competition law) (...)

The EU Court of Justice consolidates view on an effective remedy for the excessive length of proceedings before the General Court in competition cases (Groupe Gascogne)
Clifford Chance (Brussels)
In the Groupe Gascogne judgment delivered on 26 November 2013, the Court of Justice consolidates its conception on issues of effective judicial protection in competition law adjudication. The case originated in an action for annulment against the General Court (GC) judgment T-72/06 Groupe (...)

The Paris Court of Appeal rules on the communication by the Competition Authority of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private enforcement claim (Ma liste de courses)
Magenta (Paris)
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Dechert (Paris)
In its judgment dated November 20, 2013, the Paris Court of appeal (the Court of Appeal) ruled on the communication by the French Competition Authority (the FCA) of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private (...)

The EU Court of Justice establishes that avoidance of litigation does not constitute an overriding reason of general interest that can be invoked in order to uphold a direct award of a concession contract (Belgacom)
University of Bristol - Law School
CJEU rejects avoidance of litigation as a valid ’overriding reason in the public interest’ justifying a direct award of a concession contract (C-212/12)* In its Judgment of 14 November 2013 in case C-221/12 Belgacom, the CJEU has rejected that the avoidance of litigation can be considered a (...)

The Canadian Supreme Court rules that investigators cannot search personal electronic items without a warrant providing them with an express authorization (Vu)
Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Montréal)
The Supreme Court of Canada: A Computer is Not a Cupboard* When investigating cartel violations in Canada, the Competition Bureau’s tool of choice is the “search and seizure” (the Canadian equivalent of the “dawn raid” in Europe). The Bureau execises its search and seizure powers pursuant to (...)

The Canadian Supreme Court establishes that specific authorisation is needed for computer searches in Canada, raising questions on the same matter in EU law (Vu)
Commonwealth Secretariat (London)
Introduction The Supreme Court of Canada (“court”) ruled on November 7, 2013 in R v Vu (“Vu”) that specific warrant authorisation is needed to execute searches of computers and mobile phones. While the judgment concerned alleged offences in relation to the production and possession of (...)

The Canadian Supreme Court rules that specific authorisation needed to search computers and mobile phones (Vu)
Commonwealth Secretariat (London)
Introduction The Supreme Court of Canada (“court”) ruled on 7 November 2013 in R v Vu that specific warrant authorisation is needed to execute searches of computers and mobile phones. While the decision concerned alleged offences related to the production and possession of marijuana, it most (...)

The EU Court of Justice Advocate General Cruz Villalón deals in his opinion with the exceptions to the right of access to public documents implying that it cannot be excluded that the commercial interests of the leniency applicants may be damaged by disclosure (EnBW)
University of Bristol - Law School
AG Cruz Villalon on access to leniency applications: A stringent test. Really? (C-365/12)* In his Opinion of 3 October 2013 in case C-365/12 EnBW Energie, Advocate General Cruz Villalon has proposed a holistic interpretation of the regulatory schemes relating to access to documents of the (...)

The Belgian Competition Authority dismisses a claim from the College of Prosecutors concerning geographical allocation agreements between laboratories active in BSE testing, slaughterhouses and their professional organization (BSE laboratories)
Covington & Burling (Brussels)
I. The Facts In the 1990s Great Britain was affected by the outbreak of BSE (“bovine spongiform encephalopatie"), causing the European Union to take immediate action. Member States were obliged to comply with the imposed obligations by the European Union and to carry out tests urgently. The (...)

The EU Court of Justice dismisses the appeal supported by pleas on the violation of fundamental rights in elevators cartel case (Schindler)
Mircea (Bucharest)
I. Background The Schindler Group is a leading supplier of elevators, escalators and related services. Schindler’s operations cover 140 countries worldwide and involve a large number of national subsidiaries, including Schindler Belgium, Schindler Luxembourg, Schindler Netherlands and Schindler (...)

The District Court of Rotterdam disallows Competition Authority from using data obtained through wiretaps in two cases (Groep / Burando)
Netherlands Authority for Consumers & Markets (The Hague)
ACM to appeal Court’s ruling against use of wiretap data* The District Court of Rotterdam has prohibited the Netherlands Authority for Consumers and Markets (ACM) in two cases from using data obtained through wiretaps, which ACM had been provided by the Dutch Public Prosecution Service (OM). In (...)

The EU Court of Justice rules on the compatibility of the antitrust procedure with the fundamental rights of the EU in elevators cartel case (Schindler)
Gibson Dunn (Brussels)
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Gibson Dunn (Brussels)
The Schindler Ruling of the Court of Justice of the European Union: Potential Implications for Fundamental Rights and EU Competition Law* I. Background Defense counsel in European antitrust proceedings have long bemoaned the fact that “fundamental rights” did not effectively find their way (...)

The EU Court of Justice rules that the principle of effectiveness precludes a provision of national law under which the access to leniency documents is obstructed with no place left for a proportionality test (Donau Chemie)
Mircea (Bucharest)
I. Introduction The main pursuit of this article is to analyse the judgment of CJEU by comparing it to the conclusions provided by AG Jääskinen on the 7 February 2013. The facts have been described previously in my article from e-Competitions N°51003. The Austrian Consent Rule as enshrined by (...)

The US DoJ and FTC testifies at senate subcommittee antitrust oversight hearing
Wolters Kluwer (Riverwoods)
Federal Antitrust Agency Heads Testify at Senate Subcommittee Antitrust Oversight Hearing* FTC Chairwoman Edith Ramirez and William J. Baer, Assistant Attorney General in charge of the Department of Justice Antitrust Division, testified before the Senate Judiciary Committee’s antitrust (...)

The Romanian Supreme Court rejects an appeal on points of law which relied on claims of non-compliance with the right to inviolability of domicile brought against an order for unannounced inspections conducted (BRD-Group Société Générale)
Mircea (Bucharest)
The irremediable impairment of the rights of defence may arise from the disregard of the right to the inviolability of domicile Introduction ...whilst it is true that the rights of the defence must be observed in administrative procedures which may lead to the imposition of penalties, it is (...)

The Dutch Supreme Court confirms legal privilege for in-house lawyers
Court of First Instance of Namur
On 15 March 2013, the Dutch Supreme Court (Hoge Raad der Nederlanden) confirmed the existence of a general legal privilege for in- house lawyers. The Supreme Court considered that the Akzo case law of the European Court of Justice (ECJ) is not applicable beyond EU competition law and (...)

The Brussels Court of Appeal holds that communications between a company and its in-house counsel are entitled to the protection of the attorney-client privilege under Belgian law (Belgacom)
CaaStle (New York)
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Axinn Veltrop & Harkrider (New York)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Brussels Court of Appeal held that communications between a company (Belgacom Group) and its in-house counsel were entitled to the protection of the (...)

The EU Court of Justice Advocate General Jääskinen postulates that the prohibition of reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria is precluded by EU public procurement law (Mannocchi Luigino)
University of Bristol - Law School
With a little help from my friends: A flexible and competition-oriented interpretation of rules on reliance on third party capabilities in public procurement (Opinion in C-94/12)* (This is an extended version of the comment previously posted on Albert’s personal blog). According to the current (...)

The EU Court of Justice Advocate General Jääskinen puts forward that an absolute level of protection should be afforded by legislative means to the leniency applicants (Donau Chemie)
University of Bristol - Law School
Why is #competition law so special? Or how #leniency will kill private #damages actions (AG C-536/11)* In his Opinion of 7 February 2013 in case C-536/11 Donau Chemie and Others, Advocate General Jääskinen has developed a line of reasoning that goes well beyond the issue at hand (whether access (...)

The Dutch Trade and Industry Appeal Tribunal holds that former employees have the right to remain silent in antitrust investigations carried out by the Dutch Competition Authority (College van Beroep voor het bedrijfsleven)
Court of First Instance of Namur
On 21 December 2012, the Dutch Trade and Industry Appeal Tribunal (College van Beroep voor het bedrijfsleven) held that former employees of companies subject to an antitrust investigation have the right to remain silent when being questioned by the national competition authority. In (...)

The Indian Ministry of Corporate Affairs proposes a significant change in respect of the search and seizure powers granted to the investigating office of Competition Authority
Sonam Mathur (New Delhi)
The Ministry of Corporate Affairs, Government of India which is the authority responsible for the functioning of the Competition Commission of India (CCI) has proposed a bill in the Lower House of Parliament of India on 10 December 2012 to amend the Competition Act, 2002 (Act). This proposal (...)

The Bucharest Court of Appeal confirms the restrictive interpretation of the legal professional privilege in the Romanian competition law
Mircea (Bucharest)
Romania is among the last countries in the European Union to have introduced the concept of the Legal Professional Privilege (“LLP”) in its national legislation. This took place in 2010 when the Romanian Competition Law (RCL) has been amended to a great extent and the relevant provision has been (...)

The US District Court for the Northern District of California recognizes indirect purchasers’ standing in cases where component products have little independent utility (Flat Panel Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In re TFT-LCD (Flat Panel) Antitrust Litig., 2012 U.S. Dist. LEXIS 145935 (N.D. Cal. 2012) Even though many states have chosen to part company with federal antitrust laws by permitting antitrust standing for so-called "indirect purchasers" under state law — despite the holding of the Supreme (...)

The EU Court of Justice rejects an appeal by the German energy company for failing to substantiate the reversed burden of proof and the allegedly incorrect assessment of the fines imposed for breaching a seal during an EU dawn raid (E.ON)
Mircea (Bucharest)
I. Introduction Breaching of a seal constitutes a serious violation of the Commission’s investigative powers in the competition field for which fines not exceeding 1 % of the undertaking’s turnover may be imposed. On 15 April 2008, E.ON Energie brought an action for annulment against a (...)

The EU General Court confirms that fact-finding measures conducted under article 20(4) of the Regulation No 1/2003 does not bring about a distinct change of the legal position of the applicant, thus may not be the subject of an action for annulment (Nexans)
Mircea (Bucharest)
I. Introduction The applicants in the present case seek the annulment of Commission decision of 9 January 2009 ordering them to submit to an inspection in accordance with article 20(4) of Regulation No 1/2003 as well as the way in which it was executed. In the context of an investigation the (...)

The EU General Court curtails Commission’s powers to dawn raid companies for suspected competition law infringements (Nexans)
Lexing (Liège)
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Law, Science, Technology and Society Research Group
I. The Parties Nexans SA and its wholly-owned subsidiary Nexans France SAS – are two French companies which carry out their activities in the electric cable sector. II. The Facts The EU Commission (hereinafter “the Commission”) received information via leniency applications that electric cable (...)

The EU Court of Justice establishes rules of procedure
Jones Day (Brussels)
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European Commission (Brussels)
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Jones Day (Brussels)
The European Court of Justice ("ECJ") has adopted new rules of procedure, replacing previous rules that had remained largely untouched since their adoption in 1953. The goal of these changes is to speed up ECJ proceedings, but these new rules may also reduce transparency and undercut parties’ (...)

The US District Court for the Eastern District of New York authorizes disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges (Air Cargo Shipping Services)
Jones Day (Washington DC)
,
Jones Day (Cleveland)
The U.S. magistrate judge in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges has authorized disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation conducted earlier by the U.S. Department (...)

The EU General Court establishes a demanding standard for the duty to give reasons in procurement cases (Sviluppo Globale GEIE)
University of Bristol - Law School
Duty to give reasons under EU procurement law and EU trademark law: is there a contradiction?* Even if they may seem two – rather disconnected – areas of legal practice, reading cases on EU public procurement and on EU trademark law sometimes offers interesting insights into broader issues of EU (...)

The EU General Court issues a decision concerned with the extent of the duty to provide reasons to disappointed tenderers (Sviluppo Globale GEIE)
University of Bristol - Law School
Again on procurement debriefing and its excesses: Extent of the duty to give (very detailed) reasons to bidders and right to a fair trial (T-183/10)* In its Judgment of 10 October 2012 in case T‑183/10 Sviluppo Globale GEIE v Commission, the General Court has issued a new decision concerned (...)

The President of The Hague District Court holds that the Dutch Competition Authority cannot engage in "fishing expeditions"
Court of First Instance of Namur
On 5 October 2012, President of The Hague District Court ruled in interim proceedings that the Dutch Competition Authority (“NMa”) cannot order third parties to provide information incriminating undertakings against which the NMa has insufficient information to initiate competition law (...)

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

The EU Court of Justice dismisses an appeal and rules that in-house lawyers should not be permitted to appear before EU courts (Polish Electronic Communications Office)
Commonwealth Secretariat (London)
Introduction On 6 September 2012 the Court of Justice of the European Union (ECJ) upheld an earlier decision of the General Court (formerly the Court of First Instance) in the Prezes Urzedu Komunikacji Elektronicznej case that in-house lawyers cannot represent their client companies before EU (...)

The Osaka District Court orders the Japan FTC to submit documents concerning a shareholder derivative suit (Sumitomo Electric)
Nishimura & Asahi (Tokyo)
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Nishimura & Asahi (Tokyo)
On July 15, 2012, the Osaka District Court ordered the Japan Fair Trade Commission (the “JFTC”) to submit (i) written statements of employees of Sumitomo Electric Industries (“Sumitomo Electric”) and (ii) Sumitomo Electric’s report to the JFTC in relation to the shareholder derivative suit against (...)

A Czech Court confirms that phone recordings may be lawfully used as evidence in antitrust proceedings (Husky)
Diwok Hermann Petsche (Baker McKenzie Vienna)
Introduction In April 2012 the Regional Court in Brno confirmed the decision of the Czech Office for Protection of Economic Competition (“Czech Competition Authority”) fining HUSKY CZ for resale price maintenance. Based on the findings of the Czech Competition Authority, HUSKY CZ set the maximum (...)

The Maltese Competition and Consumer Appeals Tribunal rejects the Competition Authority’s claim to be a party in proceedings but allows it to a limited right for attending and participating (Joe Mizzi)
Sciberras & Lia (Valletta)
In terms of Article 13A of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ’MCA’), the Director General (Competition) (hereinafter referred to as ’Director’) applied to the Competition and Consumer Affairs Tribunal (hereinafter referred to as ’Tribunal’), following (...)

The Paris Court of Appeal sets aside secret tape recordings and all related elements in competition law proceedings (Avantage / Sony / Philips)
Court of First Instance of Namur
On 16 February 2012, the Paris Court of Appeal finally endorsed a judgment of the French Supreme Court of 7 January 2011, according to which tape recordings of conversations made without the participants’ knowledge constitute inadmissible evidence in competition law proceedings. The (...)

The Portuguese Constitutional Court confirms position of Competition Authority regarding oral hearings (A, B, C, D, E and F)
European Commission (Brussels)
Portugal: The Constitutional Court confirms Position of Portuguese Competition Authority regarding Oral Hearings* On 8 February 2012, the Constitutional Court issued a ruling whereby it concluded that it is not unconstitutional to interpret article 26(2) of the Portuguese Competition Act in (...)

An Italian Administrative Court clarifies the boundaries of third parties’ right to access the file in antitrust matters (Alitalia)
Gatti Pavesi Bianchi (Milan)
With its judgment of February 2, 2012, the Tribunale Amministrativo del Lazio (i.e. the lower Italian administrative Court which adjudicates appeals against decisions issued by the Autorità Garante della Concorrenza e del Mercato, «IAA«) clarified the boundaries of third parties’ right to access (...)

The EU Court of Justice upholds the judgments of the General Court and the Commissions decisions relating to the two cartels in the copper industrial and copper plumbing tubes sectors and confirms the unlimited jurisdiction of the Courts in relation to the amount of fines (Chalkor) (KME)
European Court of Justice (Luxembourg)
The Court of Justice upholds the judgments of the General Court and the Commission’s decisions relating to the two cartels in the copper industrial and copper plumbing tubes sectors* The review carried out by the General Court in respect of Commission decisions imposing fines in competition (...)

The Paris Commercial Court allows the production of documents that are necessary for the rights of defence (Outremer Telecom / Orange Caraïbe / France Télécom)
Modo (Brussels)
Background On 9 December 2009 the French Competition Authority fined Orange Caraïbe and France Telecom in the amount of EUR 63 million for having abused their dominant position on the market of mobile telephony or fixed telephony in French Caribbean. This decision was partially overturned from (...)

The EU Court of Justice annuls fines imposed on Belgian chemicals company for anticompetitive conduct due to a breach of essential procedural requirements (Solvay)
University of California (Berkeley)
European Court of Justice annuls antitrust fines due to a breach of essential procedural requirements* On October 25th, 2011 the European Court of Justice annulled antitrust fines that were imposed on the company Solvay by the European Commission in the year 2000 (and approved by European (...)

The Paris Court of Appeal rejects an appeal lodged against the conditions of search and seizure operations conducted by the Competition Authority at the premises of a leading international group in the transport and delivery service sector (TNT Express)
Juliette Goyer Avocat (Paris)
,
French Competition Authority (Paris)
On October 4, 2011, the delegate of the first President of the Paris Court of Appeal issued three orders relating to competition search and seizure operations conducted by the French National Competition Authority (the «NCA«) at the premises of TNT Express and TNT Express France («TNT«), SARL (...)

The EU Court of Human Rights confirms that the Italian antitrust fining regime is compatible with human rights (Menarini)
Pavia e Ansaldo (Roma)
On 27 September 2011 the European Court of Human Rights (ECHR or the Court) ruled the Italian system of antitrust sanctions to be compliant with the law of fundamental rights. Specifically, the ECHR deemed the Italian system, consisting of a decision by the Italian Competition Authority (ICA) (...)

The Dutch Trade and Industry Appeals Tribunal confirms that separation of functions must be applied within administrative authority (ETB)
De Nederlandsche Bank (DNB)
,
Smeets Van Empel advocaten (Amsterdam)
1. Facts and procedure Following an extensive investigation into fraud and anticompetitive practices in the Dutch construction sector, the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, hereinafter "NMa") imposed a fine on ETB Vos B.V. (hereinafter "ETB") for infringing (...)

The US Supreme Court reverses class action certification raising hurdles for antitrust collective redress cases (Wal-Mart Stores / Dukes)
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On June 20, 2011, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court handed down its decision holding that discrimination claims on behalf of up (...)

The French Criminal Supreme Court takes side in favour of the admissibility of the appeal by the Rapporteur général of the Competition Authority in a case concerning emails seizure (Orange)
Université Paris XI (Sceaux)
House searches carried out by the French competition authority (“Autorité de la concurrence”), a shared prerogative since 2009 with the Ministry of Finance & Economy (“DGCCRF”), are in principle governed by the Code of Criminal procedure. Furthermore, it has been held by the Supreme Court in (...)

The Belgium Supreme Court rules on the exact scope of the "full jurisdiction" of the Brussels Court of Appeal in competition cases (Honda)
Sheppard, Mullin, Richter & Hampton (Brussels)
,
D’Ieteren Auto (Brussels)
1. Background Complaints and decision of the Belgian Competition Council Further to complaints lodged by twelve independent distributors of motorcycles before the Belgian Competition Council, five official importers of motorcycles (Honda, Suzuki, Ducati, Yamaha and Kawasaki) were condemned (...)

The EU Competition Commissioner Almunia proposes changes to the Commission’s procedural practice in antitrust investigations
Court of First Instance of Namur
On 30 May 2011, Competition Commissioner Joaquín Almunia announced a number of modifications he intends to introduce to the procedural rules governing antitrust proceedings before the Commission. The contemplated modifications concern DG Competition’s procedural Best Practices and the revision of (...)

The Maltese Parliament creates the Competition Authority and makes amendments to the Competition Act
European Commission (Brussels)
Malta: The Office for Competition becomes part of a wider Authority and significant Changes are made to the Competition Act* On 23 May 2011, the Malta Competition and Consumer Affairs Authority Act 2011 (the Act) entered into force. The Act provides for the establishment of the Malta (...)

The Chinese Supreme Court issues rules on Private Actions under the Anti-Monopoly law
Linklaters (Beijing)
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Linklaters (Shanghai)
,
Euclid Law (London)
On 25 April 2011, the Supreme People’s Court of China (the “SPC”) published on its website a draft of the long-awaited Provisions by the Supreme People’s Court on the Issues Regarding the Application of Law in Handling Anti-monopoly Civil Litigation Cases (the “Provisions”) for public consultation. (...)

The Belgian Competition Authority finds breach of due process in confectionary cartel investigation (Ferrero)
Court of First Instance of Namur
In a recently published decision of 7 April 2011, the Belgian Competition Council found that the rights of defence of companies, investigated for alleged coordinated price increases in the confectionary sector, had been infringed. In April 2008, the College of Competition Prosecutors opened an (...)

The Belgian Competition Authority dismisses a claim from the Prosecutor concerning a coordinated price increase due to the non-respect of the rights of the defence (Ferrero)
Lexing (Liège)
,
Liège University
1. The Parties The present procedure was launched at the initiative of the Competition Prosecutor who opened an office instruction after having detected serious indications of concerted practices in the food industry. The following companies are targeted: Ferrero SA (hereinafter: Ferrero), (...)

The UK Competition Authority announces the trial of an adjudicator role to resolve disputes on procedural issues to speed up investigations under the Competition Act 1998
European Commission (Brussels)
United Kingdom: Trialling of Procedural Adjudicator at the Office of Fair Trading (OFT)* Alongside its procedural guidance, the OFT also announced the trial of a new adjudicator role to resolve disputes on procedural issues, as part of a drive to speed up investigations under the Competition (...)

The Spanish Competition Authority fines a manufacturer of office supplies for obstructing an inspection carried out at its head office (Grafoplas)
DG COMP (Brussels)
,
Private Advising Group P.A.
On March 1, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined GRAFOPLAS DEL NOROESTE, S.A. (“GRAFOPLAS”) €161,600 for obstructing an inspection carried out at its head office. Background GRAFOPLAS is a prominent Spanish manufacturer of office supplies (...)

The Polish Competition Authority proves again that obstruction of an inspection does not pay off and imposes a record-breaking penalty of €33 million for its obstruction (Polkomtel)
Greenberg Traurig Grzesiak (Warsaw)
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Hogan Lovells (Warsaw)
An inspection of Polkomtel S.A’s ("Polkomtel" or the "Company") premises took place on 2 December 2009 as part of a number of simulataneous dawn raids carried out by the President of the Office of Competition and Consumer Protection (the "OCCP") as part of its investigation into mobile (...)

The Spanish Competition Authority fines an association for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector (STANPA)
DG COMP (Brussels)
,
Perez Llorca (Madrid)
On February 7, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined Asociación Nacional de Perfumería y Cosmética (“STANPA”) €901,518.16 for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector in (...)

The EU General Court dismisses a leading low cost airline’s action for annulment of Commission decisions rejecting access to documents (Ryanair)
Van Bael & Bellis (Brussels)
On 10 December 2010, the General Court rejected a series of claims for annulment brought by Ryanair against implied decisions of the Commission refusing access to documents relating to State aids allegedly granted to Ryanair by several airports. Ryanair sought mainly access to the complaints (...)

The French Court of Cassation quashes a ruling of the Paris Court of Appeal that had annulled a Competition Authority decision for excessive duration of the investigation procedure (Luxury perfumes)
Vogel & Vogel (Paris)
A new development has arisen in the luxury perfumes case. The Paris Court of Appeal, ruling on a referral back to it from the Court of Cassation, had exceptionally annulled a Competition Council (now Competition Authority) decision for excessive duration of the investigation procedure . This (...)

The Paris Court of Appeal reviews the legality of searches and seizures of electronic documents during dawn raids
Court of First Instance of Namur
Called upon to review the practice of untargeted searches and seizures of digital data by the investigators of the French Competition Authority, a judge delegated by the President of the Paris Court of Appeal (the "President’s delegate") recently stayed proceedings and requested an expert (...)

The Luxembourg Government issues a proposal to amend the Competition Act and to merge the two Competition Authorities of the country
NautaDutilh (Luxembourg)
In 2007 the Minister of Economy filed on behalf of the Luxemburg government a law proposal to the Luxembourg Parliament (Chambre des députés) to amend the 2004 Competition Act (Loi du 17 mai 2004 relative à la concurrence). The proposal in essence aims to integrate the Competition Inspection (...)

The UK Court of Appeal rejects claims of apparent bias in the supply of airport services market investigation (BAA / Ryanair)
Linklaters (Hong Kong)
The UK Court of Appeal recently rejected claims made by BAA that the Competition Commission’s Report into the common ownership of the UK’s main airports was tainted by apparent bias. One member of the Competition Commission’s inquiry group had indirect links to a potential bidder for one of the (...)

The EU Court of Justice confirms that communications with an in-house lawyer are not legally privileged (Akzo Nobel)
Stibbe (Amsterdam)
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Outer Temple Chambers (London)
1. Following approximately seven years of extended litigation, discussed in previous issues of Concurrences the last phase of the Akzo litigation relating to the personal scope of legal professional privilege ("LPP") has finally come to an end with the European Court of Justice’s ("ECJ") seminal (...)

The EU Court of Justice confirms that legal professional privilege under EU law does not extend to communications with in-house lawyers (Akzo Nobel)
Monckton Chambers (London)
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A&L Goodbody (Dublin)
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Linklaters (Brussels)
Background In February 2003, the Commission, with the assistance of the UK’s Office of Fair Trading, conducted a dawn raid at the UK premises of Akzo Nobel and Akcros Chemicals on suspicion of possible anti-competitive practices. During the raid, a dispute arose between the investigation team (...)

The EU Court of Justice holds that in-house lawyers are not protected by legal professional privilege in antitrust investigations (Akzo)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Dentons (Brussels)
On September 14, 2010, the Court of Justice (the Court) issued its judgment in Akzo v. Commission (Case C-550/07 P, hereinafter the Judgment) dismissing an appeal brought by Akzo Nobel Chemicals Ltd. (Akzo) against a judgment of the Court of First instance (now the General Court) of September (...)

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

The Czech Constitutional Court rules that an inspection at the business premises of a company does not require prior judicial authorization (Delta Pekarny)
Havel, Holasek (Prague)
Introduction On 26 August 2010 the Czech Constitutional Court rendered a judgment whereby it rejected as manifestly ill-founded a constitutional appeal of business company Delta Pekarny (one of the largest companies on the bakery market in the Czech Republic) against the judgment of the (...)

The Dutch Competition Authority adopts guidelines on dawn raids
Court of First Instance of Namur
On 16 August 2010, the Dutch Competition Authority (the “NMa”) published new guidelines on dawn raids. These guidelines were adopted after a consultation round among stakeholders held at the beginning of 2010. These guidelines amend and replace the NMa‘s former guidelines on dawn raids of December (...)

The EU Court of Justice sets aside the first judgment of the General Court annulling a commitment decision and dismisses breaches of the principle of proportionality and due process standards by the Commission (Alrosa)
European Commission (Brussels)
Alrosa, negotiated procedures and the procedural economy/due process conundrum – one step forward, three steps back?* Friends of the blogosphere: greetings! There was something refreshing in the judgment rendered in 2007 by the General Court (GC) in the Alrosa case (T-170/06). If somewhat (...)

The Austrian Supreme Court holds that records from competition proceedings cannot be withheld from the public prosecutor in a following criminal proceeding on the grounds of protecting trade secrets according to the Anti-Cartel Act (Elevator cartel)
Salzburg University
Background: Following on from the elevator cartel case («Aufzugskartell»), in which the involved undertakings were fined 25 million Euros for breaching Art 81 ECT (Art 101 TFEU), the public prosecutor («Staatsanwaltschaft Wien») brought proceedings against a number of involved persons pursuant to (...)

The Paris Court of Appeal defines and applies a demanding standard of proof for justification of dawn raids targeting press groups (Amaury)
Jones Day (Paris)
Dawn raids vs. the freedom of the press* Relying on what seems to be unprecedented reasoning, the President of the Paris Court of Appeals has quashed a judicial order authorizing a dawn raid against several companies belonging to Amaury, a French news group that publishes mainly sports (...)

The EU General Court imposes a high burden on the Commission to refuse access to its confidential records (Editions Odile Jacob)
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 June 9, 2010, the EU’s General Court (Court) issued its judgment on an appeal by Editions Odile Jacob (EOJ) against a decision by the European Commission (the Commission) refusing to disclose certain documents relating to the Commission’s review under the EC Merger Regulation of the (...)

The Paris Court of Appeal applies the EU "harmless error rule" in a commitment procedure where a party has been denied full access to the French Competition Authority’s file (Canal 9)
Jones Day (Paris)
The harmless error rule and the French commitment procedure* Merely one month before the ECJ delivered its very expected judgment in the Alrosa case, a ruling of the Paris Court of Appeals confirmed that the exercise of the rights of the defense in commitment procedures raises delicate issues (...)

The US Supreme Court shows in its recent antitrust decisions a concern about the burdens of US litigation process (Stolt-Nielsen / AnimalFeeds)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Many of the most important U.S. judicial decisions in antitrust have been driven by judicial concern with aspects of the U.S. litigation process that are perceived by some to impose excessive costs (...)

The Japanese Government proposes to reform the Fair Trade Commission’s hearing procedure for antitrust violations
Winston & Strawn (New York)
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Jones Day (Tokyo)
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Jones Day (Tokyo)
The Japanese government has proposed significant changes to the procedures for challenging orders issued for antitrust violations by the Japanese Fair Trade Commission (JFTC). The Cabinet submitted a bill of amendments to the Antimonopoly Act (AMA) to the House of Representatives (Shugiin) on (...)

The Luxembourg Administrative Court dismisses the appeal of the state of Luxembourg and confirms the annulment of the decisions imposing interim measures against national incumbent telecom operator (P&T)
Justinian Lawyers Belgium (Brussels)
1. Facts Several telecommunications companies introduced a complaint for abuse of dominant position against “Entreprise des Postes et Télécommunications” (hereafter “P&T”) to the Luxembourg Competition Inspectorate. The latter requested the President of the Luxembourg Competition Council (...)

The EU Commission publishes documents on best practices in competition law enforcement and on the role of the hearing officers
European Commission (Brussels)
European Commission: Best practices improve Transparency and Predictability of Proceedings In order to further enhance the transparency and the predictability of Commission antitrust proceedings, detailed explanations concerning how European Commission antitrust procedures work in practice (...)

The Bratislava Regional Court confirms strict criteria that courts have on the reasoning of decisions of the Competition Authority (Slovnaft)
Wolf Theiss (Bratislava)
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Kinstellar (Bratislava)
Factual background Regional Court Bratislava (“Court“) overruled, in its judgment dated 15 December 2009, two decisions of the Slovak Antimonopoly Office (the “AMO”), namely the first instance decision No. 2006/DZ/2/1/140 dated 22 December 2006 and the appellate decision No. 2007/DZ/R/2/102 dated (...)

The Spanish Supreme Court’s ruling on the breach of the rights of defence of a company subject to a competition investigation improves due process (SOS Cuetara)
Latam Airlines (Las Condes)
This judgment marks the end of a case which began in April 2005, when the Spanish Competition Authority (ANC) opened an investigation into the Spanish olive oil market following a complaint from a consumer protection association. A number of food distributors and a major olive oil producer were (...)

The Spanish Supreme Court passes an important judgment concerning the violation of the right to rely on all relevant evidence in an antitrust case (SOS Cuetara)
European Court of Justice (Luxembourg)
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Garrigues (Brussels)
Introduction On 10 December 2009, the Spanish Supreme Court (Tribunal Supremo) passed an important judgment concerning the limits of the notion of due process under Spanish law. In particular, the Supreme Court shed some light on the consequences of the violation of the right to rely on all (...)

The Hungarian Supreme Court defines the extent of client-attorney privilege in competition proceedings
Oppenheim (Budapest)
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Oppenheim (Budapest)
In December 2009 the Supreme Court published a significant individual decision (under No. BH 2009.364), in which it confirmed that communication between client and attorney, even if occurred before the initiation of the respective competition proceedings by the HCO, may still be subject to (...)

The Paris Court of Appeal overturns a decision of the Competition Authority for excessive duration of the proceedings for the first time (Perfumes)
Hewlett Packard (Boulogne-Billancourt)
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Christian Louboutin (Paris)
In a ruling dated 10 November 2009, the Paris Court of Appeal overturned a decision of the national competition authority (the "Authority") for excessive duration of the proceedings for the first time. This decision of the Authority related to alleged anticompetitive practices by several (...)

The Czech Regional Court in Brno sets a deadline for the decision of the Competition Authority due to its inaction (Sokolovská)
Kinstellar (Prague)
On 3 November 2009, the Regional Court in Brno (the “Court”) issued a judgment in which it ordered the Czech Competition Office (the “Office”) to issue a final decision in its investigation regarding the alleged breach of competition rules by Sokolovská uhelná, právní nástupce, a.s. (“Sokolovská”) (...)

The Paris Court of Appeal holds that, in compliance with the adversarial principle, the parties to the commitments procedure shall have access to all documents which the case handler had drafted its preliminary assessment (Canal 9 / Les Indépendants)
Norton Rose Fulbright (Paris)
Following the quashing of its first decision , the Paris Court of Appeal held, in the present decision , that in compliance with the adversarial principle, the parties to the commitments procedure shall have access to all documents on the basis of which the French Rapporteur (the “case handler”) (...)

The Spanish Court of Appeal issues a decision that renders illegal some of the Competition Authority’s inspection practices (CNC)
Garrigues (Brussels)
Spanish Court of Appeal strikes down CNC’s Inspection Practices* The Audiencia Nacional (‘AN’) – i.e. the Spanish Court in charge of the review of decisions adopted by the Spanish National Competition Commission (‘CNC’) – recently delivered an important judgment quashing some of the CNC’s (...)

The UK High Court criticizes the Office of Fair Trading for violating the principles of equal treatment and fairness in a "fast-track” settlement procedure (Crest Nicholson)
Baker McKenzie (Budapest)
The Office of Fair Trading (OFT) was found to have violated the principle of equal treatment and procedural fairness in its construction cartel investigation when it disregarded that Crest Nicholson, a former parent company of a construction firm accused of bid rigging, was unable to accept in (...)

The Bulgarian Supreme Administrative Court discusses in detail the legal consequences of failure to comply with the obligation to inform the EU Commission (Insurance Cartel)
Paris Dauphine University
Abstract: The case provides an useful illustration of the impact the national institutional and procedural autonomy principle may have on the present EU antitrust enforcement system. Indeed, since Regulation 1/2003 is directly applicable within the national legal orders and consequently the (...)

The Russian Constitutional Court confirms the constitutionality of certain provision of the Competition Law regulating the powers of the national competition authority (Gazenergoset / Nizhnekamskneftkhim)
University of Macau - Faculty of Law
In 2006 two companies, applicants in the present case, OAO “Gazenergoset” and OAO “Nizhnekamskneftkhim” have been found in violation of the competition law. Russian Competition Authority (Федеральная Антимонопольная Служба) (FAS) found that undertakings concerned participated in the concerted practices and (...)

The Paris Court of Appeal opposes the Supreme Court on the admissibility of evidence obtained without the knowledge of the companies under investigation (Avantage / Sony / Philips)
Amcor (Zürich)
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Potamitisvekris (Athens)
On 29 April 2009, the Paris Court of Appeal dismissed for the second time the appeal of Philips and Sony against a decision of the Competition Council in 2005 condemning an agreement between the two companies and their respective distributors. In so doing, the Court of Appeal expressed its (...)

The EU Court of Justice Advocate General Bot proposes to annul General Court’s ruling on rights of defence in carbonless paper cartel appeal (Papierfabrik August Koehler)
Van Bael & Bellis (Brussels)
On 2 April 2009, Advocate General Bot issued his opinion in the appeal against the judgment of the CFI in the carbonless paper cartel case. This judgment upheld a Commission decision of December 2001, which found that eleven undertakings had infringed Article 81 EC by participating in a series (...)

The Romanian Constitutional Court confirms the constitutionality of provisions relating to the investigative and decision-making powers of the Competition Authority (Astral Impex / Gabi’s / BDM)
University of Macau - Faculty of Law
Summary Addressing the challenge of constitutionality of certain provisions of the Competition Law regulating the investigative and decision-making powers of the Competition Council, the Romanian Constitutional Court adhered to its preceding jurisprudence and dismissed the applicants’ (...)

The English High Court rules on the right of the Competition Authority to close a competition act investigation due to resource constraints (Cityhook)
Pinsent Masons (London)
Background Cityhook Limited ("Cityhook") was founded in 1999 by three British engineers to exploit a patented technology invented by one of its founders. The patented technology consisted of a foreshore ducting system for drilling a tunnel under the foreshore and sea-bed to enable the (...)

The Dutch Trade and Industry Appeals Tribunal holds that Art. 6 ECHR implying a foreign language defendant has the right to translations of all documents necessary to prepare its defence in a Dutch antitrust procedure (North Sea Shrimps II)
Simmons & Simmons (Brussels)
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Freshfields Bruckhaus Deringer (Amsterdam)
Background On 19 January 2009, the Dutch Trade and Industry Appeals Tribunal (the "CBb") ruled on two joint cases in which both a number of producer organisations and the Netherlands Competition Authority (the "NMa") had appealed decisions of the District Court Rotterdam (Rechtbank Rotterdam). (...)

The US FTC issues interim final rules governing trials held before the EU Commission
Jones Day (Washington DC)
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Jones Day (Washington DC)
On December 23, the Federal Trade Commission published a set of interim final rules governing trials held before the Commission. The interim final rules incorporate most, but not all, of the rules changes first proposed by the FTC in October 2008. The interim final rules are likely to have a (...)

The Swiss Supreme Court rules on legal privilege in a cartel conducted by road transports and warehousing companies (Panalpina)
International Committee of the Red Cross (Geneva)
On October 28, 2008, the Swiss Supreme Court finally dismissed the claim from several companies which had been subject to dawn raids and opposed the use by the Swiss Competition Commission (“Comco”) in a cartel investigation of certain internal documents issued for or by in-house counsel on the (...)

The Spanish Competition Authority launches dawn raids giving rise to controversy over defense rights (Colgate Palmolive España / L’Oreal / Stanpa)
European Court of Justice (Luxembourg)
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Garrigues (Brussels)
The entry into force of the new Spanish leniency program has significantly stepped up cartel investigations undertaken by the Spanish Competition Authority (hereinafter “CNC”). Under the new regulatory framework enacted by the Spanish Competition Act in July 2007, the CNC has initiated 48 (...)

The EU General Court rejects damages claim for losses suffered as a result of the annulment of the Commission’s decision to prohibit a merger (MyTravel)
Court of First Instance of Namur
On 9 September 2008, the Court of First Instance ("CFI") dismissed in its entirety the damages action brought by MyTravel (formerly Airtours) for losses resulting from its inability to complete its bid for First Choice as a result of the Commission’s prohibition of the Airtours/First (...)

The Dutch Trade and Industry Appeals Tribunal confirms that a fair and public hearing within a reasonable time can be interpreted as a period of up to two years or longer in an antitrust procedure (Aesculaap)
Simmons & Simmons (Brussels)
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Freshfields Bruckhaus Deringer (Amsterdam)
Introduction The Aesculaap case concerns an infringement of Article 6 of the Dutch Competition Act ("Mw") on the grounds that AUV - the procurement collective and wholesaler of veterinary pharmaceuticals -, and Aesculaap - the only other wholesaler of veterinary pharmaceuticals - had adopted a (...)

The EU General Court provides guidance on the presumption of innocence and quashes the Commission’s decision for publishing a non-confidential version of a decision on a cartel in the chemical industry (Pergan Hilfsstoffe)
General Court of the European Union (Luxembourg)
THE COURT OF FIRST INSTANCE ANNULS THE DECISION REFUSING CONFIDENTIAL TREATMENT FOR THE PUBLISHED VERSION OF A COMMISSION DECISION ON CARTELS* For the Commission to be entitled to disclose to the public the details of an undertaking’s infringement in respect of which proceedings are time (...)

The US Supreme Court shows to be driven by concerns with burdens of US litigation process according to recent antitrust decisions (Bell Atlantic / Twombly)
Gibson Dunn (New York)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process* Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)

The EU Court of Justice maintains fines set by the EU Commission in a specialty graphite cartel case and rejects pleas alleging infringement of rights of defence (SGL Carbon)
European Court of Justice (Luxembourg)
Competition: Commission welcomes Court of Justice judgment in specialty graphite cartel case The European Commission welcomes today’s judgment by the European Court of Justice (case C-328/05) dismissing the action by the German specialty graphite producer SGL Carbon AG against the judgment of (...)

The Lisbon Court of Commerce quashes decisions fining pharmaceutical companies on procedural grounds (Abbot / Bayer / Johnson & Johnson / Menarini / Roche)
PLMJ (Lisbon)
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PLMJ (Lisbon)
In its judgement of 26 March 2007 the Lisbon Court of Commerce (the “Court”) quashed on procedural grounds two decisions adopted by the Portuguese Competition Authority (the “PCA”) fining five pharmaceutical companies (Abbot, Bayer, Johnson & Johnson, Menarini and Roche). The PCA had found that (...)

The Spanish Competition Authority enhances the procedural rights of the defendants in national antitrust procedures (Banco Santander / Cheques comida)
European Court of Justice (Luxembourg)
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Garrigues (Brussels)
On March 15th, 2007 the Tribunal de Defensa de la Competencia (TDC, highest branch of the Spanish antitrust authority) has concluded that defendants in national antitrust procedures are entitled to receive the essential content of all complaints lodged against them as soon as they are (...)

Maltese competition law and human rights: some insights
Superior Courts of Malta (Valletta)
Synthesis The following is the fruit of the author’s experience in preceding over the Commission for Fair Trading of Malta since its inception. The analysis attempts to identify gaps and other short-comings in the existing regime with an eye on issues relating to Human Rights. I. PROPER (...)

The Czech Competition Authority releases a controversial draft about access to documents containing business secrets
Wolf Theiss (Prague)
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Czech Ministry of Justice (Prague)
In August 2006, the Czech Office for the Protection of Competition presented to the interested public a draft amendment to the Czech Act on the Protection of Competition. Apart from other less important issues, the draft provides specific rules on the treatment of documents obtained by the (...)

The Czech Competition Authority annuls on appeal its earlier decision invalidating the vehicle distribution agreements concluded between a car manufacturer representative and authorised dealers due to breach of defence rights (AuTec / BMW)
University of Paris I Panthéon-Sorbonne
By the decision of 30 June 2006 rendered on appeal the President of the Office for the Protection of Competition (hereafter the “Office”) set aside the Office decision invalidating the vehicle distribution’s contracts and servicing agreements concluded between AuTec Group, a.s., the representative (...)

The Paris Court of Appeal sets the power boundaries of the Competition Authority to refer a case to a criminal court (Stal / Ernée Viandes)
Innovate Finance (London)
Article L. 420-6, paragraph 1, of the Commercial Code creates the infraction applicable to individuals having taken part in an anticompetitive practice. This article states: “ If any natural person fraudulently takes a personal and decisive part in the conception, organisation or implementation (...)

The Hungarian Parliament "modernizes" the Hungarian Competition Act (HCA)
Bassola (Budapest)
Note In 2005 important provisions of the Hungarian Competition Act (hereinafter “HCA”) were amended . Also, new rules about the criminalisation of certain collusions in public procedures were incorporated into the Hungarian Criminal Code . 1. The system of individual exemptions was abolished. 2. (...)

The EU General Court annuls a decision of the Commission and confirms the obligation to carry out concrete, individual examination when access to documents is requested (Verein für Konsumenteninformation)
General Court of the European Union (Luxembourg)
THE COURT ANNULS A COMMISSION DECISION REJECTING IN ITS ENTIRETY A REQUEST FOR ACCESS TO THE ADMINISTRATIVE FILE IN A COMPETITION CASE CONCERNING AUSTRIAN BANKS* Concrete, individual examination of the documents referred to in a request for access is one of the elementary duties of an (...)

The Latvian Supreme Court confirms Competition Authority’s decision of fining loyalty discounts practices in the food retailer sector (Latfood)
Tark Grunte Sutkiene (Riga)
Latfood, previously being in a dominant position, loses a case The 22 March 2005 decision of the Department of Administrative Cases of the Supreme Court Senate closed the proceedings in respect of the 14 November 2001 decision of the Competition Council of the Republic of Latvia on imposing a (...)

The Czech Competition Authority refers to Art. 8 ECHR in defining the scope of its investigative powers (Delta / Odkolek - Penam)
Gide Loyrette Nouel (Prague)
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PRK Partners (Prague)
This contribution provides a summary of the Czech Competition Office first-instance and appellate decisions addressing the limits to the right to privacy in the context of the Office’s investigation conducted in the business premises of an undertaking suspected of having infringed competition (...)

The EU General Court reduces the fines on steel tube producers and clarifies the Commission’s powers in the context of the geographical scope of infringement (JFE / Nippon / Sumitomo)
General Court of the European Union (Luxembourg)
THE COURT OF FIRST INSTANCE REDUCES THE FINES IMPOSED BY THE EUROPEAN COMMISSION ON STEEL TUBE PRODUCERS BY 13 MILLION EUROS The Commission was unable to produce evidence covering the entire duration of the infringement By a decision of 8 December 1999, [1] the European Commission ordered (...)

The EU Council publishes its regulation and calls for cooperation among the National Competition Authorities in the European Competition Network
Nest Avocats (Paris)
1.The adoption of Regulation (EC) n° 1/2003 has undoubtedly encouraged the National Competition Authorities ("NCA") to be more eager in their application of Community law. This eagerness has been fuelled by a number of factors. Article 3§1 of Regulation n° 1/2003 requires that the NCAs apply (...)

The Dutch Competition Authority imposes fines on company for refusal to allow the interview of certain employees (Heijmans Beton- en Waterbouw)
Netherlands Authority for Consumers & Markets (The Hague)
NMa Fines Heijmans for Refusal to Co-operate* The Netherlands Competition Authority (NMa) has imposed a fine of three times EUR 4,500 (four-thousand-five-hundred euros) on Heijmans Beton- en Waterbouw for its refusal to allow NMa to interview certain of its employees. This is the maximum fine (...)

The Spanish Tribunal for the Defence of Competition defines the scope of protection of legal privilege (Pepsi-Cola / Coca-Cola)
Martinez Lage, Allendesalazar & Brokelmann (Madrid)
The Tribunal de Defensa de la Competencia (TDC) issued on 22 July 2002 a decision in which it established that documents created by companies in the context of their defence in competition proceedings before the European Commission did not have to be delivered to the Servicio de Defensa de la (...)

The EU Court of Justice rejects the appeal brought by producers of carton board in a cartel case (Cartonboard cartel)
European Court of Justice (Luxembourg)
THE COURT OF JUSTICE RULES ON THE 10 APPEALS BROUGHT BY UNDERTAKINGS AGAINST THE JUDGMENTS OF THE COURT OF FIRST INSTANCE IN THE "CARTONBOARD" CASES* On 13 July 1994 the Commission imposed fines totalling 131 750 000 ecus on 19 producers of cartonboard on the ground that they had infringed (...)

The EU General Court confirms the Commission decision fining twelve participants in a PVC cartel and rejects claims on procedural errors (Limburgse and others)
General Court of the European Union (Luxembourg)
THE COURT OF FIRST INSTANCE GENERALLY CONFIRMS THE COMMISSION DECISION FINING 12 PVC PRODUCERS FOR PARTICIPATING IN AN ILLEGAL CARTEL* However, the Commission fines totalling 19 250 000 euros are reduced in respect of three undertakings In October 1983, following investigations conducted in (...)

The EU Court of Justice applies the reasonable time rule and reduces fine imposed by the Commission on producers of welded steel mesh for anticompetitive agreements (Baustahlgewebe)
European Court of Justice (Luxembourg)
THE COURT OF JUSTICE APPLIES "REASONABLE TIME" RULE AND REDUCES FINE IMPOSED ON COMPANY The Court of Justice considered that a reduction by ECU 50 000 of a fine of ECU 3 million imposed on an undertaking for breach of the competition rules constituted a "fair satisfaction" for the excessive (...)

The EU General Court confirms the Commission’s decision requiring a French bank to supply information concerning the fee charged when processing foreign checks (Société Générale)
DG COMP (Brussels)
Judgment Of The Court Of First Instance Of 8 March 1995 (T-34/93) Société Générale - v- Commission* In this case the applicant, Société générale (SG), sought the annulment of Commission decision C(93)746 of 1 April 1993 which, pursuant to Article 11(5) of Regulation N° 17, required SG to supply within (...)

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