Economic assessment of damages

Anticompetitive practices

The EU Commission launches a sector inquiry into the market for consumer products and services linked to the Internet of Things (IoT)
Baker McKenzie (Brussels)
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Baker McKenzie (Brussels)
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Baker McKenzie (London)
In brief The European Commission (Commission) has launched a sector inquiry into the market for consumer products and services linked to the Internet of Things (IoT). This marks the start of an intensive information gathering process in which hundreds of companies will be asked for information (...)

The EU Commission launches a sector inquiry into the consumer-related devices and services that are connected through a network and can be controlled wirelessly (IoT)
Covington & Burling (Brussels)
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Covington & Burling (Brussels)
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Covington & Burling (London)
On July 16, 2020, the European Commission (“Commission”) announced that it has launched an antitrust sector inquiry into "consumer-related products and services that are connected to a network and can be controlled at a distance, for example via a voice assistant or mobile device." Commission (...)

The EU Commission launches a sector inquiry into the Internet of Things for consumer-related products and services in the EU
Ashurst (London)
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Ashurst (London)
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Ashurst (London)
Sector inquiry launched into the Internet of Things On 16 July 2020, the European Commission ("Commission") launched an antitrust competition inquiry into the sector of Internet of Things ("IoT") for consumer-related products and services in the EU. The inquiry complements other actions (...)

The EU Commission launches a sector inquiry into the consumer Internet of Things (IoT)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
On 16 July 2020, the European Commission (“Commission”) launched an antitrust sector inquiry into the market for the Internet of Things (IoT) for consumer-related products and services in the EU. According to the Commission, the sector inquiry will focus on consumer-related products and services (...)

The UK Competition Authority fines 3 pharmaceutical companies £2.3 million for anti-competitive agreement in the supply of life-saving drug fludrocortisone and secures £8 million in damages for the National Health Service (Aspen / Tiofarma / Amilco)
United Kingdom’s Competition Authority - CMA (London)
CMA levies fines of £2.3m and secures £8m for NHS in pharma probe* The CMA has formally concluded that 3 pharmaceutical companies took part in an illegal arrangement in relation to the supply of life-saving medicine. The investigation by the Competition and Markets Authority into the supply of (...)

The German Lower Regional Court of Dortmund hands down a judgement regarding follow-on damages against a wholesale company for sanitary and heating products (Sanitary and heating cartel)
Ashurst (Frankfurt)
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Ashurst (Frankfurt)
On 8 July 2020, The German Lower Regional Court of Dortmund ("Court") recently handed down its ruling regarding follow-on damages against a specialist wholesale company for sanitary and heating products. Damages were sought following a fine of the German Federal Cartel Office ("FCO") relating (...)

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

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

The Paris Court of Appeal rejects an appeal against a follow-on damages claim by a rival telecommunications provider and grants a reduction in the amount of damages to be paid (Orange / Digicel)
Court of First Instance of Namur
On 17 June 2020, the Paris Court of Appeal rejected Orange’s (formerly known as France Telecom) appeal against a follow-on damages claim by rival telecommunications provider Digicel (formerly known as Bouygues Telecom) but granted a reduction in the amount of damages to be paid of nearly € 100 (...)

A Spanish Regional Court requests a preliminary ruling on the possibility of the retroactive application of the provisions concerning the period of limitation to bring damages action (Volvo / Trucks)
Bird & Bird (Madrid)
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Bird & Bird (Madrid)
The application of the transitional regime of the Damages Directive (No. 2014/104), of 26 November 2014, has created legal uncertainty regarding the statute of limitations of damages claims. On 12 June 2020, the Regional Court of León referred questions to the European Court of Justice (ECJ) (...)

The French Competition Authority publishes a study on e-commerce and competition law
Bird & Bird (Paris)
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Bird & Bird (Paris)
E-commerce is an essential distribution channel with specific features to which the competition authorities had to adapt. Reflections on the impact of e-commerce has never been more relevant than today, as the global COVID-19 health crisis has boosted online sales. In this context, the French (...)

The UK Court of Appeal upholds the ruling of the Competition Appeal Tribunal in its schemes governing suppliers’ access to its infrastructure (Network Rail / RISQS)
Ashurst (London)
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Ashurst (London)
The Court of Appeal on 5 March 2020 handed down a judgment upholding the ruling of the Competition Appeal Tribunal ("CAT") of July 2019 which found Network Rail had infringed the Chapter I and II prohibitions of the Competition Act 1998 by requiring, in its schemes governing suppliers’ access to (...)

The UK Competition Appeals Tribunal rules on which part of the EU Commission’s settlement decision is binding on a defendant and that it is an abuse of process for defendants to deny in follow-on damage claim findings that are contained in settlements (DAF Trucks)
Hausfeld (London)
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Hausfeld (London)
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Hausfeld (London)
In an important judgment for follow- on damages claims, the Competition Appeal Tribunal has ruled that a number of findings made by the European Commission in its Trucks ‘settlement’ Decision are binding on the defendants and the Tribunal; and that, subject to limited exceptions, it is an abuse (...)

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

The Madrid Commercial Court requests a preliminary ruling to the EU Court of Justice concerning the international competence of the court which was contested by the defendants (RH / AB Volvo)
CDC Cartel Damage Claims (Brussels)
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CDC Cartel Damage Claims (Brussels)
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3C Compliance (Madrid)
Choice of forum delicti in EU-wide cartel damages cases (C-30/20, RH vs Volvo) Does Art. 7(2) Brussels I bis determine territorial jurisdiction within the EU Member States, Madrid Commercial Court asks EU Court of Justice. The request for a preliminary ruling from the Madrid Commercial Court (...)

The Paris Commercial Court grants interim measures to a large food retailer imposing on one of its suppliers of non-alcoholic beverages to resume its deliveries (Intermarché / Coca-Cola)
BCTG Avocats (Paris)
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BCTG Avocats (Paris)
Following the Coca Cola European Partners’ decision (hereinafter ’Coca-Cola’) to stop delivering its products to ITM Alimentaire International (hereinafter ’ITM’), ITM applied for interim measures before the Paris Commercial Court (hereinafter the “Court”) in early 2020. On January 16th, 2020, the (...)

The EU Court of Justice rules that a public body indirectly affected by a cartel can claim compensation for losses resulting from an antitrust infringement (Otis)
Court of First Instance of Namur
On 12 December 2019, the Court of Justice of the European Union (“ECJ”) delivered a judgment on a request for a preliminary ruling from the Austrian Supreme Court (C-435/18, Otis and Others v. Land Oberösterreich and Others). The request was made in the context of a compensation claim brought by (...)

The Dutch Court of Appeal in Arnhem-Leeuwarden finds a subsidiary liable for cartel damage caused by its minority shareholder that had or could have a decisive influence over it (GIS Cartel)
Maastricht University
In a decision of 26 November 2019, the Court of Appeal Arnhem-Leeuwarden deduced from the Court of Justice’s decision in Skanska that the EU concept undertaking is to be used to determine the entity which is required to provide compensation for damage caused by an infringement of Article 101 (...)

The UK Court of Appeal clarifies principles governing competition damages and reiterates that judges must base their decisions on the evidence before them by exclusively focusing on the loss of the claimant (BritNed / ABB)
Case Associates (London)
The Court of Appeal in BritNed v ABB [2019] EWCA Civ 1840 has again had to clarify the principles governing competition damages. It reaffirmed the English High Court’s rejection of the claimant’s approach to damages but took issue with the trial judge’s position that damages should err on the side (...)

The Italian Supreme Court sheds light on the severance of anti-competitive clauses of a banking personal guarantee contract (De Gregorio / Banca Promos)
Desogus Law Office (Cagliari)
Introduction Article 2 of the Italian Competition Law no. 287/1990 (ICL), which is equal to Article 101 TFEU, provides that an agreement that restrains competition is void. By its judgment rendered in De Gregorio et al v Banca Promos, the Italian Court of Cassation has considered the reach of (...)

The EU General Court reaffirms the Commission’s duty to provide sufficient reasons when explaining fine calculations in cartel cases (HSBC)
Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
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Shearman & Sterling (London)
On 24 September 2019, the EU General Court (GC) handed down its judgment in HSBC v. Commission. Consistent with recent precedent, the GC reaffirmed the European Commission (“Commission”)’s duty to provide sufficient reasons when explaining fine calculations in cartel cases and annulled the fine (...)

The Advocate General Bobek provides an analytical framework to assess the appropriateness of ‘by object’ qualifications while clarifying and consolidating the case-law on the dichotomy between ‘by object’ and ‘by effect’ restrictions (Budapest Bank)
Liège University
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KU Leuven
Comment On 5 September 2019, Advocate General (‘AG’) Bobek delivered his Opinion in the Budapest Bank case following a request for a preliminary ruling from the Hungarian Supreme Court (‘HSC’). AG Bobek advised on several matters such as the existence of an obligation for National Competition (...)

The EU Court of Justice confirms the application of the principle of economic continuity in private enforcement of a cartel case (Vantaan kaupunki / Skanska Industrial Solutions)
Sérvulo & Associados (Lisbon)
The Principle Of Economic Continuity’s Application On Private Enforcement: Case 724/17 Skanska* With two major decisions, March 2019 was an interesting month with regard to the ECJ’s case-law on the private enforcement of competition law: Skanska and Cogeco. This post will comment on the (...)

The EU Court of Justice clarifies, in a preliminary ruling concerning an asphalt cartel, who is liable to pay compensation in a damages action arising from article 101 TFEU (Skanska Industrial Solutions)
Lavoielegal (Brussels)
Court of Justice ruling in Skanska: EU competition law concept of ‘undertakings’ and principle of economic continuity to the rescue in civil damages claims* In its preliminary ruling in Skanska Industrial Solutions and Others, the Court of Justice has ruled on the fundamental question of who is (...)

The EU Court of Justice rules that the concept of undertaking and the principle of economic continuity apply in private enforcements cases as in public enforcement proceedings (Vantaan kaupunki / Skanska Industrial Solutions)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
Introduction The European Court of Justice (“ECJ”) issued a landmark decision on 14 March 2019 concerning the application of the concept of “undertaking” and the principle of economic continuity to cartel damages claims. The ECJ ruled in its Skanska judgement that the broad interpretation of the (...)

The EU General Court awards damages to an envelope producer due to the EU Commission’s failure to include default interest when repaying an annulled cartel fine (Printeos)
Court of First Instance of Namur
On 12 February 2019, the EU General Court (“GC”) awarded € 184,592.95 in damages to envelopes producer Printeos in view of the European Commission’s failure to pay default interest when repaying a cartel fine which had previously been annulled by the GC. In 2014, following a settlement procedure, (...)

The Italian Competition Authority provides useful guidance on under what circumstances an incumbent may associate with a competitor in a public tender for blood derivatives (Kedrion / Grifols)
Portolano Cavallo (Milan)
In January 2018 the AGCM launched an investigation for a possible breach of Article 101 TFEU against two international manufacturers of blood-based pharmaceuticals – Kedrion S.p.A (“Kedrion”) and Grifols Italia S.p.A (“Grifols”) – for participating as a joint venture to a public tender (issued by a (...)

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

The UK High Court of Justice rejects econometrics analysis in a cartel damage case for being too complex (BritNed / ABB)
Case Associates (London)
BritNed Development Ltd v. ABB AB and ABB Ltd [2018] EWHC 2616 (Ch). (“BritNed”) is the first English cartel damage judgment and the first to consider an econometric approach to calculating overcharges. The court rejected the claimant’s econometric analysis as ‘too complex’ and “unspecific”. Here (...)

The UK High Court of Justice rejects methodology for estimating overcharges on cables based on economic evidence (BritNed / ABB)
The Brattle Group (London)
ABSTRACT In the first cartel overcharge claim brought in the English High Court, the claimant’s methodology for estimating ABB overcharges on the BritNed cable was comprehensively rejected. The Court concluded that the claimant’s econometric analysis was insufficiently grounded in facts and (...)

The Danish Competition Authority Appeals Board finds the Competition Authority’s legal and economic evaluation of a roofing membrane case to be insufficient (Icopal / NWP / DTB / TOR)
Danish Competition and Consumer Authority (Copenhagen)
Danish Competition Appeals Board remits a case regarding the Danish roofing membrane market to Danish Competition Council* The case concerns whether the only two Danish manufacturers of roofing membranes, Icopal Danmark ApS (“Icopal”) and Nordic Waterproofing A/S (“NWP”), as well as the two (...)

The Commercial Courts of Barcelona and Madrid render judgements in follow-on suits against a cartel in the envelopes market (Sobres de Papel)
Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
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Callol, Coca & Asociados (Madrid)
Update on damages claims in Spain - paper envelope cartel damages recovery. Several rulings have been issued by Spanish lower courts shedding light on key aspects of antitrust damages claims, such as the treatment of evidence concerning the calculation of compensation for damages. Also the (...)

The German Federal Court of Justice grants a claim for damages relating to a cement cartel by extending the time period in which limitation rules can be suspended (Grauzementkartell II)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
This landmark judgment of the German Federal Court of Justice concerns an action for damages relating to the German cement cartel. However, the judgment has much wider implications and is relevant for damage claims relating to other cartel infringements. The Federal Court extended the temporal (...)

The German Federal Court clarifies controversial judgments around the statute of limitations for cartel damages claims (Grauzementkartell II)
Hogan Lovells (Munich)
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Hogan Lovells (Munich)
I. Introduction On 12 June 2018, the German Federal Court of Justice (Bundesgerichtshof, BGH) passed its long-awaited landmark decision in KZR 56/16 (Grauzementkartell II). The BGH held that Sec. 33 (5) of the German Act against Restraints of Competition (ARC) (today Sec. 33h (6) ARC), which (...)

The Belgian Supreme Court dismisses an appeal against an interim judgment of the Brussels Court of Appeal (Kone / Otis / Schindler / ThyssenKrupp)
Court of First Instance of Namur
On 22 March 2018, the Belgian Supreme Court (the “Supreme Court”) dismissed an appeal against an interim judgment of the Brussels Court of Appeal (the “Court of Appeal”) on the damages claim introduced by the European Commission (the “Commission”). This claim arose following the Commission’s 2007 (...)

The UK Court of Appeal adopts a ruling allowing plaintiffs in cartel damages actions to advance claims based on overcharges incurred outside of the EU when they ultimately hit their finished goods sales within the EU (Liyama)
Dentons (Brussels)
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Levi Strauss (Brussels)
On February 16, 2018, the UK Court of Appeal adopted its much awaited ruling in the iiyama case. Taking stock of the Court of Justice (CoJ) ruling in Intel last year, the Court of Appeal allows plaintiffs in civil cartel damages actions to advance claims based on overcharges incurred by their (...)

The EU Commission publishes a report on the implementation of collective redress mechanisms in EU Member States
Court of First Instance of Namur
On 26 January 2018, the European Commission (the “Commission”) published a report on the implementation of collective redress mechanisms in EU Member States (the “Report”). The Report is the Commission’s opportunity to comprehensively review the implementation of its 2013 Recommendation on common (...)

Bulgaria transposes the Private Damages Directive (2014/104/EU)
Tsvetkova Bebov Komarevski (Sofia)
Better Later Than Never: Bulgaria Finally Implemented the Private Damages Directive in its Competition Protection Act Eleonora Mateina (Tsvetkova Bebov Komarevski, Attorneys-at-law)/January 8, 2018 /Leave a comment Following a considerable delay and a threat by the European Commission to (...)

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

The EU Commission fines several truck manufacturers for cartel (Scania)
DG COMP (Brussels)
Antitrust: Commission fines Scania €880 million for participating in trucks cartel* The European Commission has found that Scania broke EU antitrust rules. It colluded for 14 years with five other truck manufacturers on truck pricing and on passing on the costs of new technologies to meet (...)

The German Federal Council adopts an amendment to act against restraints of competition
Jones Day (Frankfurt)
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Morgan Lewis (Frankfurt)
Key changes triggered by the amendment relate to a company’s liability for cartel infringements, the introduction of a transaction value test into merger control, private enforcement through the implementation of the EU Cartel Damages Directive, the assessment of market power in multilateral (...)

The German Federal Council votes in favour of passing the ninth amendment to the Act against Restraints of Competition
Baker McKenzie (Brussels)
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Baker McKenzie (Brussels)
Update on the 9th ARC Revision On 31 March 2017, the German Federal Council (Bundesrat) has voted in favour of passing the ninth amendment to the Act against Restraints of Competition (ARC) (Gesetz gegen Wettbewerbsbeschränkungen). According to the 31 March plenary report, the draft law is now (...)

The EU General Court rules on three actions claiming damages for alleged excessive duration of judicial proceedings (Armando Alvarez / Plasticos Espanoles / Kendrion)
Van Bael & Bellis (Brussels)
On 1 and 17 February 2017, the General Court (“GC”) delivered three judgments in relation to actions claiming damages for alleged excessive duration of judicial proceedings. This is the second set of judgments issued by the GC on this topic. Last month, the GC awarded Gascogne more than € 57,000 (...)

The UK High Court concludes that multilateral interchange fees were not restrictive of competition and can be exempted under article 101(3) (MasterCard)
DLA Piper (London)
On 30 January 2017, the United Kingdom (UK) High Court handed down a judgment in favour of MasterCard in a damages claim brought by UK retailers (including Next, Acadia Group and Asda). The claimants alleged that MasterCard’s multilateral interchange fees (MIFs) were illegally restrictive of (...)

The EU General Court orders the European Union to pay damages for excessively long court proceedings for the first time (Industrial bags cartel)
Van Bael & Bellis (Brussels)
On 10 January 2017, the General Court (“GC”) issued a judgment in which it ordered the European Union to pay Gascogne and Gascogne Sack Deutschland (“Gascogne”) a total of about € 57,000 in damages for the excessive duration of previous proceedings before the GC in connection with the Industrial (...)

The Milan Court of Appeal welcomes the counterfactual scenario in a follow-on action for damages (Brennercom / Telecom Italia)
NCTM - Studio Legale Associato (Milan)
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Luiss Guido Carli University (Rome)
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Luiss Guido Carli University (Rome)
One of the main issues involving the implementation of the Damages Directive concerns the quantification of damages claimed by the victims of anticompetitive conducts before national judges in follow-on actions. Indeed, the directive grants the right to full compensation to the victims of (...)

The Italian Supreme Court rules that the reorganization of the Italian distribution network of a car manufacturer does not breach competition law (Volkswagen)
Desogus Law Office (Cagliari)
By the recent Volkswagen Group Italia (VGI) judgement , the Italian Supreme Court or Court of Cassation (the Court) has ruled that the plan for the reorganization of its Italian distribution network implemented by a German car manufacturer did not breach competition. The Court considered the (...)

The EU Commission imposes a cartel fine totalling €2.93 billion on four truck producer for coordinating their factory prices of trucks, new emissions technologies and their introduction in the market (MAN / Volvo / Renault / Daimler / DAF)
McDermott Will & Emery (Brussels)
THE EUROPEAN COMMISSION FINES TRUCK MANUFACTURERS A RECORD €2.93 BILLION FOR CARTEL CONDUCT* On 19 July 2016, the European Commission (Commission) imposed fines totaling €2,926,499,000 on four truck producers (39824 – Trucks). The fine is the highest ever imposed on members of a cartel by the EU (...)

The UK Competition Appeal Tribunal rules on passing-on defense (Sainsbury ’s Supermarket / Mastercard)
Blackstone Chambers (London)
The passing-on “defence” after Sainsbury’s*The passing-on defence – ie. whether the damages suffered by a purchaser of a product which has been the subject of a cartel are reduced if he passes on the overcharge to his own customers – had, as Tristan Jones blogged a few years ago, been the subject of (...)

The UK Competition Appeal Tribunal awards competition damages in country’s first judgment on a standalone action (Sainsbury’s / MasterCard)
Cleary Gottlieb Steen & Hamilton (Rome)
The Competition Appeal Tribunal awards competition damages in UK’s first judgment on a stand-alone action* On 14 July 2016, the UK Competition Appeal Tribunal (CAT) ordered MasterCard to pay Sainsbury’s £68.6m plus interest for infringing competition law in the setting of UK multilateral (...)

The Dutch Supreme Court accepts passing-on defence in private enforcement litigations (TenneT / Gas-insulated Switchgear)
Court of First Instance of Namur
On 8 July 2016, the Dutch Supreme Court (“the Court”) handed down a judgment upholding the availability of the passing-on defense in private enforcement litigation. The ruling resulted from a civil claim for damages brought by the electricity company TenneT against the gas-insulated switchgear (...)

The European University Institute issues a comparative study on the calculation of interest on antitrust damages
CDC Cartel Damage Claims (Brussels)
1. Introduction The fact that antitrust infringements, in particular hard-core cartels, cause significant harm is widely acknowledged. The Court of Justice of the European Union (CJ) confirmed the horizontal direct effect of EU antitrust provisions in damages actions before national courts (...)

The Belgian Competition Authority fines 6 undertakings for price-fixing agreement in the sector of industrial batteries (Emrol)
Belgian Competition Authority (Brussels)
The Belgian Competition Authority imposes fines amounting to 3.857.000 EUR for price-fixing in the sector of industrial batteries* The Investigation and Prosecution Service of the Belgian Competition Authority sanctions 6 companies for price-fixing by applying an agreed lead surcharge to the (...)

The EU Court of Justice affirms the need to clearly distinguish between restrictions by object and restrictions by effect (Toshiba)
Fidal (Paris)
No more than two years elapsed between the Allianz Hungária case, which appeared to confuse the notions of “restriction by object” and “restriction by effect”, and the Groupement des cartes bancaires case, which seemed to put an end to that confusion. The Court needed to adopt a third position in (...)

The UK Competition Appeal Tribunal hears the first damages claim since the entry into force of the Consumer Rights Act 2015 (NCRQ)
Collyer Bristow
On 22 December 2015, the Competition Appeal Tribunal (the “CAT”) announced the commencement of two damages actions which, according to its website , were only the second and third claims issued in the CAT since 1 October, when the Consumer Rights Act 2015 came into force seismically changing (...)

Economic assessment of damages actions in competition law: An overview of EU and national case law
Oxera (Oxford)
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Oxera
1 Introduction Damages actions under competition law have become a mainstream in many EU Member States. Competition practices in law firms and economics consultancies trumpet their expertise in damages alongside mergers, cartels and abuse of dominance. National judges are increasingly aware of (...)

The English & Wales Court of Appeal refuses to expand the qualification of victim down the chain to the ultimate consumer (Air Canada / Emerald Supplies)
Blackstone Chambers (London)
Blown out of the water? Air Cargo and the future of extra-EU/EEA cartel damages claims* If the captain of a trading ship fires cannon on a canoe to prevent the canoeists trading with another boat vying for their trade, that boat’s owners can sue the captain: Tarleton v M’Gawley (1793) Peake 270. (...)

The UK Court of Appeal strikes out two cartel damage claims based on the torts of conspiracy and economic interference and narrows the scope of other potential claims (Air Cargo)
Simmons & Simmons (London)
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Simmons & Simmons (London)
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Simmons & Simmons (London)
In brief There were three significant developments in the air cargo cartel damages litigation in the UK in October 2015. First, on 14 October 2015, the English Court of Appeal significantly narrowed the scope of potential claims in the UK by striking out two claims based on the torts of (...)

The EU Commission imposes fines on cargo train operators for participating in a cartel (Express Interfracht / Schenker)
DG COMP (Brussels)
Commission fines cargo train operators € 49 million for cartel* The European Commission has imposed fines of € 49 154 000 on Express Interfracht, part of the Austrian railway incumbent Österreichische Bundesbahnen ("ÖBB"), and Schenker, part of the German railway incumbent Deutsche Bahn ("DB"), (...)

The U.S. FTC reaches settlement in post-Actavis reverse payment case (Cephalon)
Gibson Dunn (Washington)
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Debevoise & Plimpton (Washington, D.C.)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Federal Trade Commission (“FTC”) has reached a settlement resolving its claims that Cephalon, Inc. violated the antitrust laws by entering into reverse payment (...)

The Higher Regional Court Düsseldorf dismisses transferred follow-on damages claims because of the shift of the risk of litigation costs (Cartel Damages Claims)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. The Facts The judgment by the Higher Regional Court Düsseldorf (HRC Düsseldorf) put an end to 10 years of on-going legal dispute that started after the German Federal Cartel Office (FCO) disclosed various regional quota cartels, operating for a number of years until 2002, in the German cement (...)

The Regional Labour Court of Düsseldorf holds that the managing director of a steel producer cannot be held liable for fines imposed on the company by the Federal Cartel Office (ThyssenKrupp)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. The Facts In 2012 and 2013 the German Federal Cartel Office (FCO) imposed heavy fines on numerous companies and individuals for participating in a cartel in the rail industry. Among the companies fined were subsidiaries of the large German steel-producing group, ThyssenKrupp, which had to (...)

The Regional Court of Potsdam finds a clause in the procurement terms of a German municipality requiring liquidated damages of 15% to be paid if the supplier participates in anti-competitive behaviour to be unlawful (Suppliers of fire engines)
Simmons & Simmons (Dusseldorf)
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Simmons & Simmons (Dusseldorf)
The German courts are grappling with the legality of clauses intended to agree liquidated damages where one of the parties is involved in a cartel. The Regional Court of Potsdam has recently found a clause in the procurement terms of a German municipality which requires liquidated damages of (...)

The Brussels Commercial Court dismisses EU’s damages claim in lifts and escalators cartel case (Kone / Otis / Schindler / ThyssenKrupp)
Van Bael & Bellis (Brussels)
The Brussels Commercial Court dismisses European Union’s damages claim in lifts and escalators cartel case On 24 November 2014, the Brussels Commercial Court dismissed, for lack of sufficient evidence, the first action for damages ever brought by the European Commission on behalf of the (...)

The EU Commission appeals a Belgian Court’s judgement in a cartel damages case (Otis / KONE / Schindler / ThyssenKrupp)
Hausfeld (London)
European Commission’s damages litigation illustrates challenges in domestic regimes pre-implementation of the Damages Directive* In January 2015 the European Commission announced its intention to appeal a judgment of the Belgian Commercial Court which dismissed the Commission’s claim for €6 (...)

The UK High Court of Justice provides guidance on the application of the limitation period in damages actions (Arcadia / Visa)
St John’s Chambers (Bristol)
United Kingdom: High Court provides guidance on application of limitation periods in damages actions* The High Court has recently provided guidance on the application of limitation periods in competition damages actions. In Arcadia v Visa, it ruled that a substantial part of the claimant’s (...)

The European Court of Justice rules that national law may not a priori exclude claims against cartel participants for the compensation of the loss caused by the “umbrella effect” of the cartel (Kone)
Philippe & Partners (Brussels)
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Valfidus Group
I. The Parties The Austrian elevator cartel: In October 2008, the Austrian Supreme Court (“Oberster Gerichtshof”) approved the Austrian Cartel Court’s imposition of fines on five companies in the Austrian elevator industry (Schindler was fined € 25 million, Kone € 22.5 million, Otis € 18.2 million, (...)

The EU Court of Justice holds that Member States cannot block claims for compensation by victims of umbrella pricing caused by the presence of a cartel on the market for elevators (Kone)
EFTA Surveillance Authority (Brussels)
Case C-557/12 Kone AG: Cartels, damages and “umbrella pricing”* The Court of Justice’s judgment in Case C-557/12 Kone AG and Others v ÖBB-Infrastruktur AG is an important landmark in reinforcing the efficacy of EU antitrust law. The Court holds that Member States cannot block claims for (...)

The EU Court of Justice rules that cartel members are liable for ’Umbrella Claims’ (Kone)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Dentons (Brussels)
In a judgment that may expand civil damage liability for cartel participants significantly (Case C-557/12, Kone AG and Others, judgment of June 5, 2014), the European Court of Justice (the ECJ) has ruled that a cartel’s members are liable for “umbrella damages,” which are caused by price increases (...)

The EU Court of Justice deals with the question to what extent the cartelists are required to compensate the higher price charged not just by the members of the cartel, but also by other competitors (Kone)
University of Groningen
The Kone case and the lifts cartel – an upward effect on prices and effectiveness?* On June 5 the Court has handed down the eagerly awaited judgment in the Kone case. This is one of the several cases that result from the Commission’s decision finding a cartel in the elevators and escalators (...)

The EU Court of Justice allows an interpretation of the matter of civil liability according to which a cartel member may be kept liable for damages caused by umbrella pricing (Kone / ÖBB)
Hausfeld (London)
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Quinn Emanuel Urquhart & Sullivan (London)
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Hausfeld (London)
Greater scope for cartel damages recovery following the Court of Justice’s ruling that cartelists are liable for “umbrella” damages resulting from the higher prices paid to non-cartelists* On 5 June 2014, the Court of Justice of the European Union (ECJ) clarified the full extent of cartel damages (...)

The Paris Administrative Court dismisses a damages action against members of the carbon and graphite cartel (SNCF)
CDC Cartel Damage Claims (Brussels)
Factual background In its decision C.38.359 - Electrical and mechanical carbon and graphite products of 3 December 2003 published on 28 April 2004 (the ‘Decision’), the Commission found that several undertakings participated in a single and continuous infringement of Art 81(1) EC (now Art (...)

The Helsinki District Court dismisses a damages action on concerted practices in spare car parts wholesale (Atoy v. Arwidson, HL Group, Koivunen, Kaha and Örum)
University of Helsinki
The Helsinki District Court dismissed a damages action claiming losses allegedly caused by concerted practice between spare car part wholesalers. The court found that the claimant had failed to show a causal link between competition-infringing practice by the five defendants and damage which (...)

The Helsinki District Court dismisses several damages actions against wood industry actors due to prescription (Laatikkala Oy, Metsäliitto Osuuskunta Stora Enso Oyj, and UPM-Kymmene)
University of Helsinki
The Helsinki District Court has decided to dismiss several damages actions against raw wood market buyer side competition restriction participants. Approximately 650 damages actions against major wood industry actors have been pending before the Helsinki District Court, which has opted for (...)

The German Federal Constitutional Court regards the disclosure of leniency applicants’ documents as not violating fundamental constitutional rights in the cartel damages proceedings (Aufzugskartell)
Hogan Lovells (Munich)
I. The Facts Following the European Commission’s decision to impose fines against a group of lift and escalator manufacturers for violating EU antitrust rules in February 2007 (COMP/38.823), several building contractors initiated civil damages claims before the Regional Court of Berlin at the (...)

The Paris Court of Appeal orders to compensate companies in an amount of over € 1.6 million due to their damages resulting from an anti-competitive agreement on prices and sales volumes of synthetic lysine prohibited by the European Commission (Ajinomoto Eurolysine)
Norton Rose Fulbright (Paris)
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Engie (Paris)
In a judgment dated February 27, 2014, the Court of Appeal of Paris (Court of Appeal) has, on remand from the Court of Cassation (Court), ordered Ajinomoto Eurolysine (AE) to compensate four companies in the Doux group (Doux) in an amount of over € 1.6 million due to their damages resulting (...)

The French Supreme Court rejects parent company’s authority and revenue as basis for fines (Historical monuments)
HeplerBroom (Saint Louis)
Parents, it turns out, are not always responsible for their children. In a February 18, 2014 decision, the French Supreme Court (la Cour de Cassation) emphasized the need for individualized determinations of civil fines and penalties. The Supreme Court’s decision focused on the interpretation (...)

The AG Kokott of the EU Court of Justice issues opinion on the scope of the civil cartel liability in favour of allowing an action for compensation for loss resulting from umbrella pricing (KONE)
University of Bristol - Law School
A first reaction to AG Kokott’s KONE Opinion (C-557/12)* AG Kokott’s Opinion of 30 January 2014 in case C-557/12 KONE is generating significant debate (see the very interesting criticism in EUTopia) as it deals with a very complicated and controversial issue that could either spur or restrict (...)

The AG Kokott of the EU Court of Justice states that the law of the EU precludes domestic legislation which categorically excludes any civil liability of undertakings belonging to a cartel for umbrella damages (Kone)
CDC Cartel Damage Claims (Brussels)
Advocate General Kokott stated that the law of the European Union precludes the interpretation and application of domestic legislation enacted by a Member State which categorically excludes any civil liability of undertakings belonging to a cartel for loss resulting from the fact that an (...)

The EU Advocate General Kokott delivers her opinion on civil liability of cartel members for umbrella pricing (Kone / Otis / Schindler / ThyssenKrupp)
University College London
On 30 January 2014 Advocate General Kokott delivered her Opinion on the Case C-557/12 Kone and others. This case concerns a claim for compensation brought by the customer of an undertaking not party to a cartel, against the cartel members on the ground that the non-infringing party had (...)

The Düsseldorf Regional Court dismisses damages action against cement cartel
Deutsche Bahn (Berlin)
On 17 December 2013, the Düsseldorf Regional Court dismissed a follow-on cartel damages action in a case that had been widely noticed and discussed among German lawyers over the past nine years. Should the judgment be confirmed on appeal, claimants might find it more difficult to get (...)

A Finnish District Court grants damages for harm caused by a cartel infringement on the market for asphalt paving works (Espoo / Asfaltti)
Finnish Competition and Consumer Authority (Helsinki)
Asphalt cartel trial concluded at Helsinki District Court* On the proposal of the Finnish Competition Authority, the Supreme Administrative Court ordered on 29 September 2009 Lemminkäinen Oyj, VLT-Trading Oy, Skanska Asfaltti Oy, NCC Roads Oy, SA-Capital Oy, Rudus Asfaltti Oy and Super Asfaltti (...)

The District Court of Utrecht rules on its jurisdiction with regard to a private damages claim against participants in the lift cartel residing outside the Netherlands (Kone & ThyssenKrupp)
Allen & Overy (Amsterdam)
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Allen & Overy (Amsterdam)
Parties East West Debt (EWD) v. the following lift manufacturers: United Technologies Corporation (UTC), Otis B.V. (Otis NL), Schindler Holding ltd. (Schindler Holding), Schindler Liften B.V (Schindler NL). ThyssenKrupp A.G. (ThyssenKrupp), ThyssenKrupp Liften B.V. (ThyssenKrupp NL), Kone (...)

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 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 German Supreme Court rejects an appeal against an order from a Lower Court awarding damages because of losses suffered due to an anticompetitive clause in an agreement (Dornbracht)
Quinn Emanuel Urquhart & Sullivan (Brussels)
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Shearman & Sterling (London)
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Reed Smith (Brussels)
The luxury bathroom fittings manufacturer Dornbracht has lost its appeal to the German Supreme Court against an order from a lower court awarding damages of €820,000 to a retailer because of losses suffered due to an anticompetitive clause in Dornbracht’s distribution agreements. The case is (...)

The UK Competition Appeal Tribunal rules that antitrust findings regarding the copper plumbing tubes cartel did not support the intent to injure required for a conspiracy claim brought under section 47A of the Competition Act (W.H. Newson / IMI)
London School of Economics and Political Science
Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)* In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act (...)

A French Court of Appeal holds that article L. 442-6, I, 5 of the commercial code also applies to international business relations (Lauterbach, Logic Instrument)
Vogel & Vogel (Paris)
A German company which had had its products distributed by the same operator in France since 1988 announced its intention to recuperate the French market by installing a subsidiary on the territory thereby terminating relations with the distributor. Aggrieved by the lack of sufficient notice of (...)

The Italian Competition Authority publishes a Vademecum intended to help procurement agencies detect infringements of competition law in the context of public bids
Simmons & Simmons (Milano)
On 26 October 2013, the ICA published a “Vademecum” (guide) intended to help procurement agencies to detect infringements of competition law in the context of public bids. This is particularly interesting not only for its contents, but because the ICA usually refrains from providing formal or (...)

The Madrid Court of Appeal establishes that there should be no bar to the effect of the arbitration clause and the arbitrability of a dispute concerning rights and obligations arising out of vertical agreements in the motor vehicle sector (Camilaga / DAF Vehiculos)
CMS Cameron McKenna (Sofia)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Arbitrability of Competition Law Issues Reinforced* A number of decisions of various national courts have dealt with the issue whether a competition law dispute (...)

The ECN Working Group on Competition Law gathers in Bonn to discuss matters related to vertical restraints in the internet economy sector
German Competition Authority (Bonn)
Vertical Restraints in the Internet Economy - Meeting of the Working Group on Competition Law in Bonn* Bonn, 14 October 2013: On 10 October 2013 the Working Group on Competition Law met in Bonn at the invitation of the Bundeskartellamt. At this year’s meeting more than 100 competition law (...)

The Portuguese Supreme Court declares a non-compete clause in a franchise agreement invalid due to absence of transference of confidential information justifying protection of know-how (Montijo)
New University of Lisboa - Faculty of Law
In a dispute concerning an infringement of a franchising agreement in the food services industry, including an alleged violation of a non-compete clause, the Portuguese Supreme Court reversed a ruling of the Lisbon Appeal Court, providing clarifications on its view on the validity of such (...)

The District Court of Rotterdam rules on its jurisdiction regarding private damages claim against cartel participants residing outside the Netherlands (Stichting Elevator Cartel Claim)
Allen & Overy (Amsterdam)
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Allen & Overy (Amsterdam)
The parties Stichting Elevator Cartel Claim (SECC) v. Kone B.V., Kone GMBH, Kone Oyj, Kone Luxembourg Sàrl, Kone Belgium S.A. (jointly Kone c.s.), Thyssenkrupp Liften Ascenseurs N.V.-S.A., Thyssenkrupp Liften B.V., Thyssenkrupp Aufzuge GmbH, Thyssenkrupp Fahrtreppen GmbH, Thyssenkrupp Elevator (...)

The Court of Appeal of Paris faces the difficult adequacy between efficiency of private enforcement and the principles of the French Civil Trial (JCB v. Central Parts)
Fieldfisher (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
In its decision dated 26 June 2013, the Court of Appeal of Paris considered that only the harm suffered because of anticompetitive practices implemented for a period of 10 years before they stopped could be compensated. By taking this ruling, it strictly applied the French procedural rules for (...)

The EU Court of Justice grants access to a national competition file to applicants seeking compensation for damages deriving from the violation of EU competition rules (Donau Chemie)
European Court of Justice (Luxembourg)
Factual and legal background In its judgment of 6th of June 2013, the Court of Justice ruled on the possibility to grant access to a competition file to applicants seeking compensation for damages deriving from the violation of EU competition rules. Before analyzing the merits of the judgment, (...)

The Hungarian Competition Authority does not rule on anti-competitive agreements in the agricultural sector due to a new domestic sectoral exemption (Watermelon cartel)
Oppenheim (Budapest)
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Oppenheim (Budapest)
1. Introduction On 10 April 2013, the Hungarian Competition Authority (GVH) terminated its competition proceedings concerning anti-competitive agreements against several multinational grocery retail chains as ALDI, Auchan, Lidl, Spar, TESCO and a domestic franchise, CBA as well as the Hungarian (...)

The Portuguese Appeal Court of Lisbon upholds dismissal of private enforcement action that opposed a distributor to a manufacturer in the gas bottle market and provides important general clarifications (Gas bottle distributor)
New University of Lisboa - Faculty of Law
The Lisbon Appeal Court confirmed the dismissal of a distributor’s claims for compensation in a private enforcement case in the gas bottle distribution market involving a territorial protection clause. The distributor sued the manufacturer after the latter ended a 42 year-long commercial (...)

The Dutch District Court of Midden-Nederland dismisses cartel damages claim against an elevator building company (Otis)
Court of First Instance of Namur
In a judgement of 13 March 2013, published on 4 June 2013, the Middle Netherlands Court dismissed in first instance a claim lodged by the owners of two apartment buildings and the city of Raalte against elevator building company Otis BV for alleged damage suffered as a result of illegal (...)

The Dutch District Court of Midden-Nederland sees no causal link between existence of elevator cartel and alleged overpriced elevator maintenance contract (VvE woningen "Het Schip" / Otis)
CMS (Amsterdam)
I. Facts On 21 February 2007, the European Commission imposed a fine of € 224,932,950 on elevator manufacturer Otis for its participation in the ’elevator cartel’, together with other manufacturers Kone, Mitsubishi, Schindler and ThyssenKrupp (total fine: € 992,312,200 – in those days the largest (...)

The Italian Supreme Court reaffirms the principle that infringement decisions of the Competition Authority constitute “privileged evidence” in follow on compensation claims (Private motor insurance cartel)
Simmons & Simmons (Milano)
On 04 March 2013, an order of the Corte di Cassazione - the Italian Supreme Court - reaffirmed the principle that infringement decisions of the Italian Competition Authority (ICA) constitute “privileged evidence” in follow on compensation claims. This order is related, yet again, to disputes (...)

The Spanish Competition Authority renders legally binding the commitments offered by a professional association in the market for expert reporting in occupational hazards (UICM)
DG COMP (Brussels)
On 19 February 2013 the Spanish Competition Commission (“CNC”) adopted a resolution rendering legally binding the commitments offered by the Inter-Professional Union of the Community of Madrid (“UICM”) in order to alleviate the anti-competitive allegations raised against it. The CNC initiated its (...)

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 East Netherlands District Court holds former cartelist liable for injury suffered by its customer (ABB)
Court of First Instance of Namur
In a judgement of 16 January 2013 recently made available, the East Netherlands District Court held ABB to be liable for the injury suffered by its direct purchaser TenneT, the national electricity transmission system operator of the Netherlands, as a result of the insulated switchgear (...)

The Dutch District Court establishes liability for damages in follow-on gas insulated switchgear case (Tennet TSO / ABB)
Smeets Van Empel advocaten (Amsterdam)
Introduction The Dutch District Court Oost-Nederland ruled on the liability for damages in a Dutch follow-on case sought after the European Commission established a cartel infringement in its ‘gas insulated switchgear’ Decision. In its ruling the District Court also considered the applicability (...)

The UK Supreme Court grants permission to appeal against the Court of Appeal’s judgement that struck out a cartel damages claim on the ground that they were out of time (Deutsche Bahn)
Manchester University
Introduction Deutsche Bahn v Morgan Crucible is a well-litigated case, with a judgment from the Court of Appeal and the granted permission to appeal to the Supreme Court. Taking into account the novel issues involved in this case, it appears reasonable that the Supreme Court wants to resolve (...)

The European Commission imposes fines on producers of TV and computer monitor tubes for two decades long worldwide cartel (LG Electronics, Philips, Samsung SDI)
Turkish Competition Authority (Ankara)
Largest Cartel Fine by the EU Commission* The EU Commission imposed fines on producers of TV and computer monitor tubes a total of € 1.47 billion for two decade-long cartels that operated worldwide (The press release is available here). Members of cartels include major firms like Philips, LG, (...)

The UK Court of Appeal refuses to revive private damages claims against a subsidiary of the addressee of the graphite cartel EC decision (Emerson Electric / Mersen)
Blackstone Chambers (London)
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

The UK Court of Appeal allows price-fixing damages claims brought by an Irish utility service provider against a British industrial bag manufacturer based on Article 5(3) of the Brussels I Regulation (Bord NA Mona)
Blackstone Chambers (London)
Subsidiaries as “branches” for undertakings: a new route to jurisdiction under Article 5(5) of the Brussels Regulation?* Stand alone, follow on and hybrid damages claims arising out of multijurisdictional cartels are generating some of the most novel and interesting current problems in conflicts (...)

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 Hungarian Metropolitan Court dismisses a claim for damages on the basis of bid-rigging established by the Hungarian Competition Office (Közlekedésfejlesztési Koordinációs Központ v Strabag Építő and Debreceni Magas, Mély és Útépítő)
Lakatos, Köves (Budapest)
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Philip Morris (Budapest)
On 24 October 2012, the Metropolitan Court (the "Court") dismissed the claim for damages lodged by the Traffic Development Coordination Centre (in Hungarian: "Közlekedésfejlesztési Koordinációs Központ", the "Plaintiff") made against Strabag Építő Zrt. ("Strabag") and Debreceni Magas, Mély és Útépítő (...)

The UK Court of Appeal dismisses an appeal against an action for damages arising from an Art. 101 TFEU violation on the market for the supply of industrial copper tubes (KME Yorkshire / Toshiba Carrier)
Blackstone Chambers (London)
Special pleading? Toshiba Carrier and the industrial tubes cartel* The Court of Appeal’s judgment last Friday in KME Yorkshire Ltd & ors v Toshiba Carrier UK Ltd & ors [2012] EWCA Civ 1990 will gladden the hearts of Article 101 damages claimants. It confirms that the Court will be (...)

The UK Court of Appeal dismisses an appeal seeking to strike out a damages claim brought against a company that was not the addressee of an EU Commission decision (Toshiba Carrier)
University of Leeds
On 13 September 2012, the Court of Appeal (England and Wales) dismissed an appeal which sought to strike out a damages claim (or grant summary judgment) brought against a company that was not the addressee of a European Commission decision finding an infringement of EU competition law. In (...)

The UK Court of Appeal paves the way for an ‘anchored’ follow-on claim against an industrial copper tube cartel liable under Art. 101 TFEU (Toshiba Carrier / KME Yorkshire)
Manchester University
On 13th September 2012, the UK Court of Appeal turned down an appeal by KME Yorkshire Ltd (“KME UK”) to summarily dismiss a private damages claim by Toshiba Carrier UK Ltd and other claimants (“Toshiba UK”). The claim was in respect of losses that occurred during the operation of a cartel between (...)

The Swedish Competition Authority issues a decision concerning pecuniary sanctions imposed on a contracting authority for infringements of public procurement law (Akademiska Hus Norr)
Mircea (Bucharest)
I. Introduction The building project in this case involves the modification andexpansion of an existing construction, namely the building of the University of Agricultural Sciences situated in the municipality of Umeå. The value of the contract is of approximately SEK 39 million. The Swedish (...)

The EUCJ Advocate General Kokott asserts that agreements with an anti-competitive object cannot be deemed as de minimis infringements (Expedia)
Matrix Chambers (London)
The concept of ‘appreciable restriction of competition’ in ‘object’ cases under Article 101(1) TFEU – AG Kokott in Expedia* On 6 September 2012 AG Kokott issued her Opinion in Case C-226/11 Expedia Inc. The case results from a preliminary reference made by the French Cour de cassation in (...)

The UK Court of Appeal clarifies the meaning of the term “decision” in Section 47A of the Competition Act 1998 (Deutsche Bahn / Morgan Crucible)
King’s College (London)
The Court of Appeal, in its decision in Deutsche Bahn AG and others v Morgan Crucible plc, has clarified the meaning of the term “decision” in section 47A of the Competition Act 1998 for the purpose of applying the limitation period for bringing follow-on action claims for damages in the (...)

The Irish Parliament amends the Competition Act strengthening competition law enforcement by providing new and increased sanctions and penalties
Queen’s University Belfast
On 3 July 2012 Ireland’s Competition (Amendment) Act 2012 (“the 2012 Act”) came into force. This Act, as its name indicates, amends the existing Competition Act2002 (“the 2002 Act”) to enhance Ireland’s anti-cartel regime through augmentations to the criminal and private enforcement regimes, and (...)

The Spanish Supreme Court confirms the judgment of the Valladolid Provincial Court in a sugar cartel (Nestlé / Gullón / Zahor)
University of Castilla-La-Mancha (UCLM)
The judgment of the Spanish High Court of June, 8, 2012, is the first case in which the highest court in Spain provides for a redress of the victims of a cartel of 1.1 million Euros. The sugar manufacturer Acor had appealed the judgment of the Valladolid Provincial Court of October, 9, 2009, (...)

The Spanish Supreme Court confirms first follow-on claim for an infringement of antitrust rules against a cartel in the sugar sector (Spanish Sugar Cartel, TS Acor)
3C Compliance (Madrid)
I. Introduction The Spanish Supreme Court, Tribunal Supremo, issued on June 8, 2012 an important ruling about a follow-on damage claims that resulted from an infringement of the Spanish and European Cartel Prohibition. These claims were filed in the year 2007 before the local court of (...)

The Portuguese Supreme Court broadly interprets the de minimis principle in beer distribution private enforcement case
New University of Lisboa - Faculty of Law
On the 17th May 2012, the Portuguese Supreme Court of Justice (STJ) dismissed a competition law-based defense in the framework of a dispute between a beer supplier and a retailer who failed to comply with exclusivity and minimum purchase obligations. The case stands out as one more in a number (...)

The French Commercial Court of Paris authorises production of documents contained in cartel case file in support of an action for damages (Primagaz / Butagaz)
Court of First Instance of Namur
On 11 April 2012, the Paris Commercial Court handed down a preliminary judgment, before ruling on the merits of the case, authorising a plaintiff, namely Primagaz, to produce certain documents contained in the French Competition Authority’s case file in support of an action for damages (...)

A French Court of Appeal rules on the jurisdiction of specialized courts on the ground of public policy in cases involving restrictives practices (Iso Confort / Altop)
Vogel & Vogel (Paris)
In May 2010, an operator terminated without notice a partnership agreement with another party. The latter filed a claim for damages on the basis of Articles 1134 and 1147 of the Civil Code. Applying the jurisdiction clause contained in the contract, the Commercial Court in Arras declined (...)

The UK High Court of Justice orders a disclosure of parts for the unredacted version of the EU Commission’s switchgear cartel decision (National Grid / ABB)
Baker McKenzie (London)
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Linklaters (London)
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Constantine Cannon (London)
This article has been nominated for the 2013 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. *Antitrust Litigation: Access to Documents Held by Regulatory Authorities The English High Court has confirmed that the principles established by the judgment of (...)

The UK High Court rules in favour of partial disclosure of documents in an action for damages allegedly caused by the gas insulated switchgear cartel (National Grid Electricity)
Matrix Chambers (London)
National Grid – shining Pfleiderer’s light on access to EU leniency documents* A while ago I blogged on an important development in the General Court relating to the ability of victims of cartels and other anti-competitive practices to get their hands on relevant evidence enabling them to prove (...)

The Higher Regional Court of Munich dismisses compensation claims of a parent company from its former subsidiary because of its participation in a cartel (Calciumcarbid)
Gleiss Lutz (Frankfurt)
In its judgement of 9 February 2012, the Higher Regional Court of Munich confirmed the decision of Regional Court of Munich of 13 July 2011, and dismissed the plaintiff’s appeal. Together with two other companies, the plaintiff was considered as one economic unit and was held jointly and (...)

The Local Court of Bonn denies access to leniency applications for third parties in cartel case (Pfleiderer)
Heinz & Zagrosek (Köln)
No access to file to leniency applications for third parties in Germany – national follow-on judgment in Pfleiderer* On January 18, 2012, the district court of Bonn ruled on the scope of access to file for third parties in a cartel case under German law. The court rejected the claim insofar as (...)

The Athens Civil Court of Appeal dismisses an obligation to enter into a contract in the case of anticompetitive practices
Mikroulea, Staikouras & Associates (Athens)
Introduction Ruling No 6546/2011 of the Athens Civil Court of Appeal (Efeteio Athinon, hereafter: the Court) is of particular importance for the private enforcement of Greek and EU competition law since it clarifies the remedies available to the victims in case of anticompetitive practices. In (...)

The Madrid Provincial Court accepts the passing-on-defence in the sugar cartel (Nestlé / Gullón / Zahor)
University of Castilla-La-Mancha (UCLM)
As it was mentioned before, the Spanish sugar cartel has been the origin of a claim for compensation of the damages filed by Nestlé, Zahor, Wrigley and other eleven producers of biscuits and confectionary against the sugar manufacturer Ebro Puleba (now Ebro Foods). The same cartel had also (...)

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 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 rules on damage claims by indirect purchasers and the passing-on defence in a cartel case (Carbonless Paper Cartel)
Allen & Overy (Hamburg)
On November 24, 2011 the German Federal High Court (Bundesgerichtshof) published its decision in the ORWI case. The claimant, a German savings bank, brought a claim for damages against a carbonless paper manufacturer, that were ceded to him by ORWI, a manufacturer of pre-printed forms. Claimant (...)

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 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 French Competition Authority contributes to the public consultation launched by the European Commission on private enforcement
Autorité de la concurrence (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence (French National Competition Authority) contributes to the public consultation launched by the European Commission*. Like some other NCAs (national competition authorities) in (...)

The Paris Court of Appeal fines a pharmaceutical company € 17 M for unfair competition when launching a new drug (Ipsen / Mylan)
EDHEC (Lille)
1. Summary Mylan, the generic pharmaceutical company (formerly Merck Génériques), was ordered by the Paris Court of Appeal to pay €17 million in damages to Ipsen for unfair competitive practices and economic parasitism by marketing Vitalogink to pharmacists as an "equivalent" to Tanakan and (...)

A Belgian Court seeks guidance from EU Court of Justice in determining damages in a lift cartel case (Kone / Otis / Schindle / ThyssenKrupp)
Court of First Instance of Namur
According to recent press reports, in a judgment of 21 April 2011, the Brussels Commercial Court requested a preliminary ruling from the European Court of Justice (“ECJ”) in the lift cartel damages proceedings. In February 2007, the European Commission fined lift and escalator manufacturers (...)

The UK Competition Appeal Tribunal narrows the scope of follow-on claims (Emerson Electric / Carbone)
Cleary Gottlieb Steen & Hamilton (London)
,
Cleary Gottlieb Steen & Hamilton (London)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On March 21, 2011, the U.K. Competition Appeal Tribunal (the “CAT”) struck out a follow-on claim for damages brought by Emerson Electric and others (“Emerson”) (...)

The UK High Court strikes out various competition law claims brought in relation to a landlords opposition to the granting of a new business tenancy under the Landlord and Tenant Act 1954 (Humber Oil Terminals Trustee / Associated British Ports)
Office of the Parliamentary Counsel (London)
I. Overview In February 2011, the Chancery Division of the UK High Court (the «Court») struck out various competition law related claims put forward by Humber Oil Terminal Trustee Limited («HOTT», the claimant) to resist Associated British Ports’ («ABP», the defendant) attempts to end HOTT‘s business (...)

The French Competition Authority fines four companies for bid rigging in the painting services sector for naval equipment and engineering structures (Philippe Lassarat, Prezioso-Technilor, Grivetto, Sorespi Bretagne)
Hewlett Packard (Boulogne-Billancourt)
,
cxLoyalty Group (London)
In its decision dated 24 February 2011, the French Competition Authority (the "Competition Authority") considered that four companies had concluded anticompetitive arrangements between 2005 and 2006 by fixing their prices to respond to procurements launched in the painting services sector for (...)

The UK Court of Appeal upholds a decision of the Competition Appeals Tribunal denying a claimant follow-on damages (Enron Coal Services / English Welsh & Scottish Railway)
Office of the Parliamentary Counsel (London)
I. Overview In January 2011, the UK Court of Appeal (the “Court”) dismissed an appeal against a ruling of the UK Competition Appeal Tribunal (the “Tribunal”) that Enron Coal Services Ltd (“Enron”) was not entitled to follow on damages against English Welsh and Scottish Railway Ltd (“EWS”). The Court (...)

The Hungarian High Court of Appeal rules that the tenderee to the agreement that was concluded on the basis of the outcome of a tender which was influenced by bid rigging is not entitled to damages (Bartók Béla Tender)
Philip Morris (Budapest)
I. Introduction Private enforcement in bid rigging cases is increasing in Hungary. However, none of the filed actions have been successfully completed in recent years. II. Background of the judgment The background of the case and the decision of the Hungarian Competition Office (HCO) was (...)

The UK Court of Appeal upholds Chancellor’s order striking out "representative parts" of a class action claim (Emerald / British Airways)
Ropes & Gray (London)
,
Latham & Watkins (London)
Class Actions in the U.K: Emerald Supplies Limited & Anr. v. British Airways plc* The U.K. Court of Appeal has recently rebuffed an attempt by Plaintiff’s firm, Hausfeld, to bring a collective “opt out” style action using Rule 19.6 of the CPR rules (Emerald Supplied Limited v. British Airways (...)

The UK Parliament revokes land agreements’ exemption from competition law
Morgan Lewis (London)
,
Squire Patton Boggs (London)
The UK Competition Act prohibits agreements that have the object or effect of restricting competition within the UK. Currently, land agreements - such as freehold, leasehold and rental agreements - are exempt from the prohibition, but that is all about to change. With effect from 6 April 2011, (...)

The Paris Court of Appeal reduces damages awarded for sales of perfumes through a website by unauthorised distributors (eBay / Christian Dior / Kenzo / Givenchy / Guerlain)
Van Bael & Bellis (Brussels)
On 3 September 2010, the Paris Court of Appeal delivered its judgment in a case between eBay and SA Parfums Christian Dior, SA Kenzo Parfums, SA Parfums Givenchy, and SA Guerlain (which are perfume and cosmetics suppliers belonging to the LVMH group – hereinafter the “LVMH group”). On 30 June (...)

The UK Court of Appeal grants permission to appeal and proceed to a full trial on defence against trademark infringement allegations (Oracle / M-Tech)
Ashurst (Milan)
English Court of Appeal allows M-Tech’s appeal against Oracle* On 28 August 2010, the English Court of Appeal issued a judgment setting aside an order for summary judgment by the High Court of Justice, thus granting M-Tech permission to appeal and proceed to a full trial to defend itself (...)

The German Higher Regional Court in Karlsruhe awards € 100,000 in damages to a claimant on behalf of a printing firm which purchased paper from a subsidiary of a cartel holding the passing-on defence does not apply (Carbonless Paper Cartel)
White & Case (Hamburg)
In its decision dated 11 June 2010, the Higher Regional Court of Karlsruhe has awarded € 100,000 in damages to a claimant on behalf of a printing firm that purchased carbonless-paper indirectly from members of the carbonless-paper cartel. The printing firm was seeking damages for paying cartel (...)

The Karlsruhe Higher Regional Court rules on key issues of private damages actions against hardcore cartels, decides on the indirect customer’s right to claim and addresses the challenging task of quantifying antitrust damages (Carbonless paper cartel)
Eberhard Karls University of Tübingen
,
Gleiss Lutz (Stuttgart)
Introduction Private enforcement in hardcore-cartels cases is getting in motion. In Germany, within less than one year two actions for damages against participants in hardcore-cartels were successful. After the decision of the Berlin Higher Regional Court in the “Berliner Transportbeton”-case (...)

The Portuguese Supreme Court dismisses claims for damages in the football broadcasting rights case on the basis of EU competition provisions (Vitória Sport Club / Federação Portuguesa de Futebol / Radiotelevisão Portuguesa)
New University of Lisboa - Faculty of Law
In a case that goes back to a football game held in 1997, and in a rare example of private enforcement of competition law in Portugal, the claims for damages by a Portuguese football club, supported by the Portuguese Football Federation, were finally dismissed in the last instance. Vitoria (...)

The UK Competition Authority fines £28.6 million for price fixing cartel in the bank industry (Royal Bank of Scotland)
University of East Anglia (Norwich)
Reckless Bank Saved by the Taxpayer Will Now Pay Cartel Fine* British bank, Royal Bank of Scotland (RBS), has agreed to pay a fine of £28.6 million for price fixing. RBS employees shared confidential pricing information concerning commercial loans, with their counterparts at Barclays, who (...)

The UK High Court opens the way for companies to pursue private damages actions against employees and directors who are involved in competition law infringements (Safeway Stores)
Shoosmiths (Thames Valley)
Background 1. Between 2002 and 2003, various employees and directors of the Safeway group ("Safeway"), a UK supermarket operator, were involved in the exchange of commercially sensitive retail pricing information with other UK supermarkets and dairy processors. As a consequence of this, (...)

The UK High Court sees a way through public policy objections to the recovery of cartel fines from company executives (Safeway Stores)
Sanoma (Helsinki)
,
Clayton Utz (Sydney)
a. Background Since 2005, the UK’s Office of Fair Trading (“OFT”) has investigated an alleged cartel scheme arranged by certain supermarkets and dairy producers between 2002 and 2003. In 2007, Safeway (now owned by Wm Morrisons Supermarkets plc), one of the supermarket chains implicated in the (...)

The Lisbon Commerce Court confirms decision against bid-rigging cartel by pharmaceutical companies but substantially reduces fines (Abbott / Menarini / Johnson & Johnson)
DLA Piper (Lisbon)
,
Vieira de Almeida (Lisbon)
On 7 January 2010 the Lisbon Commerce Court upheld a 2008 decision by the Portuguese Competition Authority (PCA) imposing a € 13.4 million fine on pharmaceutical companies Abbott, Menarini and Johnson & Johnson for participating in a bid-rigging cartel. Back in 2005 the PCA fined the (...)

The Dutch Competition Authority gives access to a statement of objections to a potential damage claimant (Natrium hypochlorite market cartel)
Court of First Instance of Namur
On 7 December 2009, the Dutch Competition Authority (“NMa”) announced that a potential damage claimant had been given access to a statement of objections issued in the course of a cartel investigation in the natrium hypochlorite market which ultimately led to a € 3.1 million fine imposed on (...)

The UK Competition Appeal Tribunal clarifies timing rules for follow-on private antitrust actions for damages against cartel participants (BCL / BASF)
Morgan Lewis (London)
,
4-5 Gray’s Inn Square
,
Jones Day (London)
On 19 November 2009, the UK Competition Appeal Tribunal (“CAT”) confirmed the test it will apply when assessing whether to extend the time limit by which claimants may commence follow-on actions for damages before the CAT once there has been a finding of a breach of UK or EU competition law. The (...)

The UK High Court refuses to delay a jurisdiction hearing in a cartel case until after an Italian Court of Appeal rules on its part of the same cartel case (Cooper Tire & Rubber / Shell Chemicals)
Simmons & Simmons (London)
As reported in our article Italian Torpedo defused? Tactical moves in private actions for damages, a number of claimants are seeking damages - possibly amounting to some tens of millions of pounds - in the Commercial Court of the High Court in a follow on action to the synthetic rubber cartel. (...)

A Spanish Court provides for the first time ever for compensation of damages caused by a cartel (Sugar Cartel)
University of Castilla-La-Mancha (UCLM)
The judgment of the Valladolid Provincial Court of October, 9, 2009, is the first case in Spain in which a court provides for a redress of the victims of a horizontal restraint of competition, namely a cartel. It is well-known that cartels are prohibited by article 101 of the Treaty of (...)

The Berlin Higher Regional Court rules on key issues of standing and standard of proof in cartel damages suits (Transportbeton Berlin)
Eberhard Karls University of Tübingen
,
Gleiss Lutz (Stuttgart)
I. Introduction In its judgment on the first of October 2009 the Berlin Higher Regional Court has decided on important and disputed questions concerning the private enforcement of cartel damage claims under the German Act against restraints of Competition (“ARC”). Several statements in the (...)

The Viennese Commercial Court finds a private damages claim following a fine decision in the non-cash payment industry to be time barred (Europay)
Bpv Hügel (Vienna)
Decision 22 Cg 138/07y of 3 September 2009 by the Viennese Commercial Court (Handelsgericht Wien) concerns the, as far as can be seen, second private enforcement case of a claimant seeking damages in Austria following a fine decision. The decision by the Viennese Commercial Court, which found (...)

The Dutch Arnhem-Leeuwarden Appeal Court accepts the passing-on defence in landmark case (ABB)
Simmons & Simmons (Brussels)
,
Euroclear (Brussels)
,
Simmons & Simmons (Amsterdam)
Cartel members are not liable in damages to direct customers for any portion of the overcharge that the customer has passed on to its own purchasers. In brief Private enforcement has been high on the agenda of the European Commission throughout the five year term ending 31 October 2014, as it (...)

The Italian Court of First Instance in Milan holds that a claim exclusively aimed at obtaining from a national Court a judgment contrary to a Commission’s assessment, to avoid private enforcement, is inadmissible (ENI)
Simmons & Simmons (Milano)
On 11 May 2009, the Court of First Instance (Tribunale) in Milan handed down judgment in a civil action lodged by the Italian company ENI relating to the synthetic rubber cartel for which it was fined by the European Commission in November 2006. In the context of cross border private damages (...)

The German Competition Authority imposes fines on pharmaceutical companies for price fixing (Grünenthal and Infectopharm)
Van Bael & Bellis (Brussels)
According to a press release of 7 May 2009, the German Federal Cartel Office (FCO) refrained from imposing a fine on two pharmaceutical companies, Grünenthal GmbH and Infectopharm GmbH, which had illegally agreed on prices for colistin-based antibiotics. Following Grünenthal GmbH’s leniency (...)

The UK High Court strikes out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, refusing to stretch the scope of the English civil procedure rules in order to encourage the bringing of private damages actions (Emerald Supplies & ANR / British Airways)
DG COMP (Brussels)
In striking out a representative claim brought on behalf of “all other direct or indirect purchasers of air freight services”, the English High Court has refused to stretch the scope of the English civil procedure rules in order to facilitate the bringing of such damages actions. Background The (...)

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)
,
Skadden, Arps, Slate, Meagher & Flom (London)
,
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 German Federal Court of Justice affirms admissibility of damages claims against cement cartel members
Van Bael & Bellis (Brussels)
The highest civil court in Germany, the Federal Court of Justice, has recently affirmed the admissibility of the private damages actions pending against participants in the German cement cartel. In May 2008, on appeal, the Higher Regional Court Düsseldorf had confirmed the admissibility of the (...)

The Hungarian Parliament adopts an amendment limiting the liability of leniency applicants and introducing new calculation of amount of damages
Sczecskay Attorneys
This article was prepared for the UIA-AIJA seminar "Antitrust and Unfair Competition Developments Forum", held in Brussels on April 24-25, 2009. (More information: on www.uianet.org and www.aija.org websites). On March 23, 2009, the Hungarian Parliament adopted an amendment to the Competition (...)

The Higher Regional Court of Düsseldorf does not categorically rule out unjust enrichment claim for involvement in a cartel (Otis)
Court of First Instance of Namur
In a judgment of 23 January 2009, which was recently made available, the Higher Regional Court of Düsseldorf (“Court”) dismissed a claim by a customer (Edelhoff) for the restitution of sums already paid under a contract with the lift manufacturer Otis, on the basis that the contract with Otis for (...)

The Paris Commercial Court orders a search engine and an online advertiser to pay damages to a company whose name and domain name have both been used in the Adwords program (Cobrason / Google, Home Ciné Solutions)
EDHEC (Lille)
Google France and Home Ciné Solutions (HCS) have been sued in France by Cobrason before the Commercial Court (Tribunal de commerce) of Paris. Cobrason claims that HCS is using both its company title (Cobrason) and its domain name (Cobrason.com) in the form of keywords it had purchased from (...)

The UK Court of Appeal holds that compensatory damages are adequate and that a restitutionary reward is not available in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
McDermott Will & Emery (Brussels)
Introduction In view of the fact that Community law regulates competition, English law is required to provide remedies for violations to persons injured thereby. Indeed, as the European Court of Justice stated in Courage v. Crehan, "the full effectiveness of Article 81 of the Treaty and, in (...)

The UK Court of Appeal decides on restitutionary damages in an action for damages resulting from a cartel (Devenish Nutrition / Sanofi-Aventis)
University of Exeter
By its decision of 14 October 2008, the Court of Appeal dismissed the appeal of the claimant, Devenish Nutrition Ltd, against the decision of Lewison J of 19 October 2007 . As a result, claimants seeking damages in a private action against a cartel, for losses based on a finding of an (...)

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 Paris Commercial Court finds a leading brokerage platform for remote electronic bidding liable for the infringement of selective distribution networks and unlawful acts committed against perfumers on its sites (eBay)
Vogel & Vogel (Paris)
Four perfumers sue eBay, the world’s foremost brokerage platform for remote electronic bidding, for having permitted, in violation of their rights, the sale of products marketed through unauthorized channels and counterfeit sales on its sites. eBay disputed the competence of the French courts (...)

The Paris Commercial Court condemns a leading auction website to pay damages to perfume makers for a violation of their selective distribution networks (eBay)
Altana Law (Paris)
On 30 June 2008, the Commercial Court of Paris (Tribunal de Commerce de Paris) rendered three important decisions condemning the international auction website eBay mainly for its participation to an infringement of the IP rights of six manufacturers of luxury products belonging to the Louis (...)

The EU Commission introduces a new settlement procedure for cartel cases during investigations
Linklaters (Paris)
,
Linklaters (London)
,
Linklaters (London)
On 30 June 2008, the European Commission introduced a new settlement procedure for cartel cases. Under the new procedure, the parties in a cartel investigation may acknowledge their breach of European antitrust law and waive certain procedural rights in exchange for a 10% reduction of the fine. (...)

The UK Competition Appeal Tribunal denies permission to bring follow-on damages actions while appeals to the EU General Court are pending (Emerson Electric / Morgan Crucible)
Pinsent Masons (London)
Background 1. On 3 December 2003, the European Commission (the “Commission”) adopted a decision finding that various undertakings had participated in a series of agreements and concerted practices within the meaning of Article 81 EC Treaty ( “Article 81”) in the market for carbon and (...)

The European Commission consults on settlement procedure in cartel cases
Linklaters (London)
,
Linklaters (London)
,
Linklaters (Brussels)
On 26 October 2007, the European Commission initiated a public consultation on a new settlement procedure in cartel cases. The procedure outlined in the Commission’s proposal is aimed at making the Commission’s investigations more efficient. Public comments are due by 21 December 2007 and the (...)

The UK High Court rules that restitutionary damages are not an available remedy in anti-trust cases, nor will an account of a defendant’s profits be appropriate (Devenish / Sanofi-Aventis)
Pinsent Masons (London)
Background The present case involves "follow on" claims for compensation in respect of damage suffered as a result of the vitamins cartel, which was famously subject to a Commission decision in 2001. The Commission found that notwithstanding the number of producers involved in eight distinct (...)

The UK Court of Appeal upholds the High Court’s finding that following an infringement decision by the European Commission, the appropriate claim is for compensatory and not restitutionary damages (Devenish Nutrition / Sanofi-Aventis)
DG COMP (Brussels)
The Court of Appeal of England and Wales has ruled that restitutionary damages are not generally available in antitrust cases and that, in most cases, compensatory damages provide adequate remedies. Background In 2001, the European Commission adopted a decision finding that a number of (...)

The UK High Court finds that following an infringement decision by the EU Commission, the appropriate claim is for compensatory and not exemplary or restitutionary damages (Devenish Nutrition / Sanofi-Aventis)
DG COMP (Brussels)
The High Court’s judgment is the first time that an English court has to consider what type of damages can be obtained in claims following from an infringement decision by the European Commission in competition cases. According to the judgment, a claimant is only entitled to compensatory damages (...)

The Spanish Commercial Court in Madrid holds that it is not bound by an EC Commission decision under Art. 9 of EC Reg. 1/2003 (Carburantes Costa de la Luz / Repsol)
European Court of Justice (Luxembourg)
,
Garrigues (Brussels)
Article 9 of Council Regulation (EC) n° 1/2003, of 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJEC L 1, 4 January 2003, pp. 1-25) (“Article 9”) is one of the major new features of the new EC competition rules adopted in May (...)

The Regional Court of Düsseldorf rules on procedural key issues for cartel damages suits pawing the way to de facto class action for cartel damages in Germany (Cartel Damage Claims)
Eberhard Karls University of Tübingen
I. Introduction The Regional Court in Düsseldorf has decided on procedural core questions in its interlocutory judgment of 21 February 2007 and already indicated its stance on substantive issues in an additional court instruction concerning the follow on-damages suit relating to the German (...)

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

The Paris Court of First Instance rules on the anticompetitive effect of a patent infringement collective complaint lodged against a search engine’s adwords system (Gifam / Google)
DS Avocats (Paris)
AdWords is Google’s flagship advertising product, and its main source of revenue. It offers pay-per-click advertising, and site-targeted advertising for both text and banner ads. But many of the words sold by Google to its clients are registered trademarks and Google has been recently facing (...)

The French Supreme Court finds two non-authorised distributors guilty of unfair competition for having purchased perfumes from authorised distributors in the knowledge that they were infringing the selective distribution agreement (Tifany)
Simmons & Simmons (Paris)
,
Hewlett Packard (Boulogne-Billancourt)
Marketing Diffusion Prospective (hereinafter “MDP”), based in Mégève, is an authorised distributor of most of the major French perfume manufacturers. Alleging a breach of the selective distribution network to which it belonged, MDP lodged a complaint against its main competitor in this city, (...)

The Brussels Court of Appeal awards damages for active sales breaching an exclusive distribution agreement (Horas International / Rexit)
BECI (Brussels)
,
Liège University
The facts The appellant in this case is a Belgian firm whose business activities consist in distributing furniture and accessories (hereafter the “distributor”). The defendant is an Italian company specialized in the design and production of furniture (hereafter the “manufacturer”). In 1985, the (...)

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

The French Supreme Court holds that low-price practice cannot be sanctioned on the basis of tort law if it does not fall under competition provisions (Usines Merger / Giat Industries)
Université du Maine
In a judgement delivered on December, 6th 2005, the commercial Chamber of the French Supreme Court ruled on the relationship between competition provisions and unfair trading provisions on the one hand and tort law provisions on the other hand. The issue at stake concerned the practice of low (...)

The Spanish Supreme Court rejects the appeal against the Competition Authority’s interim measures fining € 3 M price fixing in the framework of “non-genuine” agency agreements (Repsol)
London School of Economics
On 11 July 2001, the Tribunal de Defensa de la Competencia (hereinafter, “the NCA”) adopted a decision (“resolución”) in which it found that Repsol, S.A. (now Repsol YPF, S.A., hereinafter referred to as “Repsol”) acted in breach of Article 1(1) of the Spanish Competition Act. More precisely, the NCA (...)

A Spanish Court considers a distribution contract to be a “genuine” agency agreement and therefore not caught by Art. 81.1 EC (Rutamur / Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Rutamur, S.A.(“Rutamur”) concluded in December 1988 an agency agreement concerning the distribution of oil products. The latter operated from premises hired to it by Campsa. The commission was set by reference to the (...)

The German Federal Court declares settlement concerning royalties for shipments to countries outside the territorial scope of a patent to be void (“Abgasreinigungsvorrichtung”)
Helmut Schmidt University of the Armed Forces (Hamburg)
I. Facts of the case and case history The claimant/licensee produces devices for cleaning exhaust fumes. The defendant/licensor owns a European patent protecting a specified process for cleaning exhaust fumes, with territorial effect (seeEuropean Patent Convention, Art. 3) in Germany, France, (...)

A French Court condemns an undertaking to repair the damage suffered by an authorised dealer of a selective distribution network (LCJ Diffusion / La Roche Posay)
Sheppard, Mullin, Richter & Hampton (Brussels)
,
Notre Europe
This is a judgment of the Court of Appeal of Paris applying Article 81 EC which has been transmitted to the European Commission by virtue of Article 15(2) of Regulation n° 1/2003 and has been published on DG Competition’s website (See also on this case, C. Mai-Doremus and J. Philippe, The Paris (...)

The German Mannheim Regional Court decides on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit (Carbonless paper cartel)
Eberhard Karls University of Tübingen
The Regional Court Mannheim decided in its judgment of 29 April 2005 on the right to claim against a vertically integrated cartelist and the standard of proof for antitrust damages in a follow on-suit after a final decision of the EC Commission (Carbonless paper) . Background and Context of (...)

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

A Spanish Tribunal finds that a distribution agreement may not be a ’genuine’ agency agreement and thus may fall within the scope of Art. 81.1 EC (Gebe / BP Oil España)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Gebe, S.L. (“Gebe”) concluded in July 1988 an agreement concerning the distribution of oil products. The latter operated from premises hired to him by Campsa. The agency agreement included a non-compete obligation and (...)

A Spanish Court dismisses the appeal seeking to qualify an agency agreement as a resale agreement (Melón / Zarza / Repsol)
London School of Economics
On 2 January 2003, the Juzgado de Primera Instancia n° 74 de Madrid dismissed an action brought by Melón, S.A. (“Melón”) and E.S. Zarza, S.L. (“Zarza”), two undertakings active in the distribution of oil products, against Repsol Comercial de Productos Petrolíferos, S.A. (“Repsol”), an undertaking (...)

The Spanish Supreme Court rejects the appeal brought by two undertakings active in the distribution of oil products and considers the case-law of the ECJ as being a non-binding “reference” of “great value” (L’Andana)
London School of Economics
On 25 March 1996, the Juzgado de Primera Instancia de Valencia dismissed an action brought by L’Andana, S.A. and Estación de Servicion L’Andana, S.L. (both referred to hereinafter as “L’Andana”) against Repsol Comercial de Productos Petrolíferos, S.A. (“Repsol”). The claimants contended that the series (...)

A Belgian Appeal Court holds valid a resale price maintenance provision taking into consideration lack of evidence that the agreement restricted the national market or a substantial part of it (Incanto / Livoque)
NautaDutilh (Brussels)
Description of the impugned case On 20 September 2004, the Antwerp Court of Appeal (‘the Court’) rendered its decision on the compatibility of a franchising agreement with the Belgian competition rules. The franchisor, Incanto BVBA, is active in the sector of jewellery and accessories and has (...)

The Spanish Provincial Court of Madrid refuses to qualify a contract as a resale agreement and holds that the qualification given by “administrative bodies” to similar agreements is not binding upon national courts (Melón / Repsol)
London School of Economics
Repsol Comercial de productos petrolíferos S.A. (hereinafter, “Repsol”), supplied oil products to Melón S.A. (hereinafter, “Melón”), pursuant to an agency agreement signed between the parties. Considering that it was not a “genuine” agency agreement and that Commission Regulation (EC) n° 2790/1999, of (...)

The Spanish Provincial Court of Madrid refuses to submit a preliminary reference to the ECJ considering that this would only be relevant if the agreements at stake were deemed to be agency ones (Ahigal / Melón / Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, ‘Campsa’) concluded an agency agreement concerning the distribution of oil products with two companies, Ahigal, S.A. (“Ahigal”) and Melón, S.A. (“Melón”). In 2003, Ahigal and Melón decided to bring an action against Repsol Comercial de (...)

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

A Spanish Court annuls a judgment rendered in first instance on the qualification of a so-called agency agreement in the oil products distribution sector (Repsol)
London School of Economics
Compañía arrendataria del monopolio del petróleo, S.A. (hereinafter, “Campsa”) and Caminas, S.A. (“Caminas”) concluded in July 1981, November 1981 and July 1989 several agreements related to the exploitation of a gas station (“the agreements”) by the latter. Caminas brought an action for annulment (...)

The Karlsruhe Higher Regional Court decides on passing on defence in the "Vitamins cartel" (Vitaminpreise)
Eberhard Karls University of Tübingen
The Higher Regional Court Karlsruhe decided in its judgment of 28 January 2004 on the passing on defence in a cartel damages-suit concerning the vitamins cartel (Vitaminpreise). The judgment The Higher Regional Court (Oberlandesgericht) Karlsruhe has in its judgment of 28 January 2004 refused (...)

The UK High Court makes a group litigation order in a competition case in the automobile sector (Prentice / DaimlerChrysler UK)
Reed Smith (London)
Gerald Barling is a justice of the High Court and president of the Competition Appeal Tribunal (CAT). He wrote an article “Collective Redress for Breach of Competition Law – A Case for Reform” published in Competition Law Journal Volume 10 Issue 1, 2011. In it he deals with Group Litigation Orders (...)

The Spanish Supreme Court found that an exclusive car distribution agreement falled within the scope of Regulation 123/1985 and confirmed damages (Mercedes)
London School of Economics
On 10 February 1987, the Spanish subsidiary of Mercedes-Benz (hereinafter, “Mercedes”) and Motor Lugo, S.L. (“Motor Lugo”, which later became Auto Lugo) concluded an exclusive distribution agreement concerning the cars and spare parts manufactured by the former. Both parties agreed to set a minimum (...)

A Luxembourg Commercial Court rules that a de minimis exclusive distribution agreement is not prohibited under Article 85 EC (La Pastourelle / Rolling)
Justinian Lawyers Belgium (Brussels)
1. Facts On 1 April 1982, "la Pastourelle" (hereafter "the plaintiff"), limited company under Belgian law, and "Maison Rolling" (hereafter "the defendant"), shop located in Luxembourg, concluded an exclusive sale agreement for a duration of 5 years. This agreement was extended for the same (...)

The Irish Supreme Court considers a pharmaceuticals distribution agreement to be in conformity with both domestic and EC competition law and rejects a claim in civil proceedings (Chanelle Veterinary/Pfizer)
London School of Economics
Irish High Court, 30 July 1997, Chanelle Veterinary Limited v. Pfizer (Ireland) Limited and Pfizer Animal Health Irish Supreme Court, 11 February 1999, Chanelle Veterinary Limited v. Pfizer (Ireland) Limited and Pfizer Animal Health [1999] 1 IR 365 Facts of the case The plaintiff, Chanelle (...)

The German Federal Court holds in a private antitrust enforcement case that offering varying prices in the gas retail market by different subsidiaries of the same mother company may be anticompetitive price discrimination by one economic entity (Entega)
University of East Anglia (Norwich)
In a private antitrust enforcement case the German Federal Court of Justice held that offering varying prices in the gas retail market by different subsidiaries of the same mother company may be anticompetitive price discrimination by one economic entity. Background German energy markets pose (...)

Dominance

The German Federal Court of Justice clarifies obligations of parties in SEP licensing negotiations on FRAND terms (Haier / Sisvel)
Van Bael & Bellis (Brussels)
In its judgment of 5 May 2020, the Federal Court of Justice (“FCJ”) overturned the appeal ruling of the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”) and found that Haier’s mobile telephones and tablets infringed Sisvel’s standard-essential patent (“SEP”) and that Sisvel had not abused (...)

The German Federal Court of Justice issues a judgment in a case involving SEP licensing negotiations on FRAND terms between two companies active in the mobile telecommunication market (Sisvel / Haier)
Van Bael & Bellis (Brussels)
On 5 May 2020, the German Federal Court of Justice (Bundesgerichtshof - the “FCJ”) delivered a judgment in a case pitting Sisvel against Haier which deals with the licensing of Standard Essential Patents (“SEP”) on terms that are fair, reasonable and non-discriminatory (“FRAND”). This is the first (...)

The Italian Court of Cassation rules on the limitation period of antitrust damages claims in two judgements in the telecommunications sector (Uno Communications / Telecom Italia / Vodafone Italia)
Rucellai & Raffaelli (Milan)
1.- Introduction By judgements issued on the 27th of February, 2020, No. 5381, and on the 3rd of April 2020, No. 7677, the Italian Court of Cassation (Corte di Cassazione) ruled that the antitrust damages claims brought by Uno Communications S.p.A. against Vodafone Italia S.p.A. and Telecom (...)

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

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

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

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

The EU Court of Justice clarifies for the first time when patent settlement agreements that restrict a generic pharmaceutical company’s ability to enter the market infringe the EU antitrust rules (Generics - UK)
Baker Botts (Brussels)
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Baker Botts (Brussels)
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Baker Botts (Brussels)
In a major judgment handed down on 30 January 2020 in Generics (UK) and Others, the EU Court of Justice (the Court) – the EU’s highest court – clarified for the first time the analytical framework for assessing when patent settlement agreements that restrict a generic pharmaceutical company’s (...)

The Czech Republic Supreme Court confirms that invoking trademark rights to prevent parallel imports can be an abuse of dominant position (Fiskars / Mountfield)
Skils (Prague)
On 29 May 2019, the Supreme Court (SC) partially granted an extraordinary appealed lodged by Mountfield against the previous judgment of the High Court in Prague of 23 May 2017 (Ref.No. 3 Cmo 132/2016) in a dispute with Fiskars concerning an alleged violation of Firskars’ rights to trademarks (...)

The UK Competition Authority closes its investigation into an allegedly abusive discount scheme in the pharmaceutical sector (Remicade)
White & Case (Brussels)
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White & Case (Brussels)
,
White & Case (Brussels)
The CMA Remicade decision: discount schemes and abuse of dominance – effects matter!* Summary On 14 March 2019, the UK Competition and Markets Authority (CMA) decided to close its investigation into a discount scheme by Merck Sharp & Dohme Limited (MSD). The CMA concluded that there were (...)

The Cypriot Competition Authority imposes a fine on an undertaking for abusing its dominant position by pricing water supply services in tourist area (Community Council of Kouklia)
Trojan Economics (Nicosia)
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Introduction On 12th March 2019 the Cyprus Commission for the Protection of Competition (“CPC”) issued a decision imposing a fine of €78,889.28 on the Community Council of Kouklia (“CCK”) for a violation of Section 6(1)(a) of the Protection of Competition Law (Law 13(I)/2008), as amended (“Law”). (...)

The Danish Competition Authority reaches a decision regarding abuse of dominant position that leads to a huge damages settlement (Falck / BIOS)
Szecskay Attorneys at Law
HUGE DAMAGES SETTLEMENT FOLLOWING LANDMARK ABUSE OF DOMINANCE DECISION On January 30 2019, the Danish Competition Council (the “DCC”) found that ambulance services provider, Falck, had abused its dominant position under Article 102 TFEU. The DCC held that following a failed tender bid to the (...)

The Cypriot Commission Authority rejects allegations of abuse of dominance regarding an exclusive dealing agreement for the supply of hairdressing salon products (Angela Antoniadou / A.J. Vouros)
Harris Kyriakides LLC (Cyprus)
Introduction On 30 November 2018, the Cyprus Commission for the Protection of Competition (the Commission) rejected a cοmplaint for infringement of Section 6 of the Protection of Competition Law (Law 13(I)/2008), as amended (the Law). The aforementioned alleged infringement was based on the (...)

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

The UK Competition Appeal Tribunal grants an application by the claimant in a damages action in the automobile industry for disclosure of licensing arrangements made by the defendant (Peugeot / NSK)
Latham & Watkins (London)
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Matheson (Dublin)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. CAT Rules on Disclosure in Peugeot S.A. and others v NSK Ltd and others* The CAT’s specific disclosure ruling addresses the use of licensing to support (...)

The EU Court of Justice delivers a ruling on excessive pricing in a case involving a copyright management association (AKKA / LAA)
Boğaziçi University (Istanbul)
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ACTECON (Istanbul)
Introduction The question of excessive pricing as an abusive practice has been notoriously complex and competition authorities refrain from interfering in such cases normally. One of the main reasons for non-intervention of the competition authorities in such cases is the difficulty in (...)

The EU Court of Justice modernizes abuse of dominance (Intel)
Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (Brussels)
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Cleary Gottlieb Steen & Hamilton (London)
(“CJEU”) set aside General Court’s 2014 Intel judgment, upholding a European Commission (the “Commission”) decision fining Intel €1.06 billion for abuse of dominance through exclusivity rebates . The CJEU held that the General Court had erred in failing to examine all of Intel’s arguments calling (...)

The EU Court of Justice issues landmark judgment on the legal treatment of fidelity rebates granted by dominant companies (Intel)
Van Bael & Bellis (Brussels)
On 6 September 2017, the Court of Justice of the European Union (“ECJ”) issued its long-awaited judgment in the Intel case (Case C-413/14 P), setting aside the General Court’s (“GC”) judgment. The GC must now re-assess the legality of the Commission’s decision in light of the ECJ’s ruling. Intel was (...)

The EU Court of Justice endorses an effects-based assessment of rebates (Intel)
White & Case (Brussels)
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White & Case (Brussels)
,
White & Case (Brussels)
This article has been nominated for the 2018 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel that the European Commission ("Commission") cannot (...)

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 EU Court of Justice refers a case back to the General Court for re-examination (Intel)
Norton Rose Fulbright (Brussels)
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Norton Rose Fulbright (London)
Major victory for Intel as CJEU sends case back to General Court for re-examination* On 6 September, the EU’s highest court, the Court of Justice (CJEU), released its long-awaited decision in the Intel case, in which the Commission imposed a fine of €1.06 billion – at the time, the largest fine (...)

The EU Court of Justice quashes the 2014 judgment of the General Court that upheld a fine of €1.06 billion for an abuse of dominant position by implementing loyalty rebates based on exclusivity agreements (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
On September 6, 2017 ,the Court of Justice of the European Union (CJEU) quashed the 2014 judgment of the General Court (GC) that upheld a fine of €1.06 billion ($1.5 billion) on Intel Corporation Inc. (Intel) for abusing a dominant market position by implementing loyalty rebates based on (...)

The EU Court of Justice renders its judgment in a case regarding loyalty rebates granted by dominant companies (Intel)
Baker Botts (Brussels)
An alternative view on accuracy and administrability Introduction In its judgment in Intel of 6 September 2017, the Court of Justice of the European Union (“CJEU”) rejected the notion that particular loyalty rebates granted by a dominant company are subject to a per se illegality standard of (...)

The EU Court of Justice reverses the General Court’s decision in an abuse of dominance case against a big tech company in the market for processors and rules that rebates should be judged under the rule of reason (Intel)
Compass Lexecon (Brussels)
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The Graduate Institute for International and Development Studies (Geneva)
Roundtable Discussion on the ECJ ruling in Intel* On 6 September 2017, the European Court of Justice (“ECJ”) issued a landmark judgment where it set aside the judgment of the General Court (“GC”) in the highly debated Intel matter. This judgment is of particular significance because it provides (...)

The EU Court of Justice hands down a judgment on a reference for a preliminary ruling stating that comparative advertising can be misleading if consumers are not provided with information on the different format or size of shops where the products are sold (ITM / Carrefour)
McDermott Will & Emery (Paris)
UNFAIR COMMERCIAL PRACTICES: THE EUROPEAN COURT OF JUSTICE SPECIFIES CRITERIA FOR COMPARATIVE ADVERTISING* On 8 February 2017, the European Court of Justice (ECJ) handed down a judgment on a reference for a preliminary ruling stating that comparative advertising can be misleading if consumers (...)

The Bulgarian Supreme Administrative Court quashes the Competition Authority’s decision on an abuse of dominance in the energy sector, due to a different economic analysis (Energo Pro)
Tsvetkova Bebov Komarevski (Sofia)
The Supreme Administrative Court of the Republic of Bulgaria seating in 3-member panel (the “Supreme Administrative Court”, the “Court or the “Supreme Court”) repealed the decision of the Bulgarian Commission for Protection of Competition (the “Commission”) by virtue of which the Commission imposed (...)

The Romanian High Court of Cassation and Justice confirms the right to compensation of a company that suffered damages following the imposition of discriminatory conditions by the incumbent postal service provider in relationship with its customers (Mailers Serv / Compania Nationala Posta Romana)
Romanian Competition Council (Bucharest)
On 28.7.2011, Mailers Serv S.R.L. (in insolvency) brought an action for damages before the Tribunalul Bucuresti, Sectia Civila against CNPR claiming the difference of the discounts that would have received as a customer of CNPR if the latter would have applied the same conditions as to the (...)

The UK High Court throws out a private claim for damages based on abuse of dominance in the online mapping sector (Streetmap / Google)
Constantine Cannon (London)
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Constantine Cannon (London)
Google wins court battle against StreetMap in the UK*Google won a big victory Friday in the High Court of England and Wales, which ruled that Google did not abuse its dominant position to the detriment of the now-defunct UK online mapping provider, Streetmap.The Court’s ruling against (...)

The EU Court of Justice rules on retroactive loyalty rebates and offer clarity (Post Danmark II)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
The first Post Danmark case in 2012 brought about a modest antitrust revolution on Article 102 applicable to discrimination. Rarefied economic concepts were confirmed. Price discrimination as a standalone abuse was all but confined to a historical footnote in antitrust textbooks, to be (...)

The EU Court of Justice rules on issues concerning retroactive rebates and the procedures through which these rebates can be characterized as abusive (Post Danmark II)
Herbert Smith Freehills (Madrid)
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Herbert Smith Freehills (Brussels)
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Herbert Smith Freehills (Paris)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 6 October 2015, the European Court of Justice (the Court) issued its preliminary ruling in Post Danmark A/S v Konkurrencerådet (Competition (...)

The EU Court of Justice confirms “safe harbour” for volume rebates but creates new challenges (Post Danmark II)
Gibson Dunn (Brussels)
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Gibson Dunn (Brussels)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Rethinking Rebates Policy Under EU Competition Law* On 6 October 2015, the European Court of Justice (ECJ) ruled in a case concerning rebates and when they fall (...)

The EU Court of Justice rules on retroactive loyalty rebates (Post Danmark II)
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 October 6, 2015, the European Court of Justice (the ECJ) issued an important judgment clarifying the application of Article 102 to retroactive loyalty rebates (Post Danmark AS, Case C 23/14). The case, which had been referred to the ECJ by the Danish Commercial Court, concerned rebates for (...)

The EU Court of Justice rules on whether a retroactive loyalty rebates scheme is liable to have an exclusionary effect (Post Danmark II)
Quinn Emanuel Urquhart & Sullivan (Brussels)
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Quinn Emanuel Urquhart & Sullivan (Brussels)
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Quinn Emanuel Urquhart & Sullivan (Brussels)
The EU Court of Justice has handed down its much-awaited preliminary ruling in Post Danmark II . This ruling marks an ‘evolution’ rather than a ‘revolution’ in the assessment of rebates under Article 102 TFEU. While regrettably unclear in certain passages, some aspects of the Court of Justice’s (...)

The Latvian Administrative Regional Court upholds the decision of the Competition Authority that fined and imposed remedies on the national gas supplier in a case of abuse of dominance (Latvijas Gāze)
Konkurences padome (Riga)
Court agrees with the Competition Authority to fine the National Gas Supplier* On 2 September, the Administrative Regional Court confirmed the Competition Council’s (CC) decision to impose the only natural gas supplier in Latvia – AS "Latvijas Gāze" – remedies to change the practice of debt (...)

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

The Italian Supreme Court opens the doors to standalone private actions (Cargest)
Bonelli Erede (Rome)
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Bonelli Erede (Rome)
In its decision of 6 June 2015 the Italian Supreme Court annulled the previous decision of the Court of Appeal of Rome , which had rejected the claim brought by a number of fruit and vegetable wholesalers (the “Wholesalers”) against Cargest - the company that manages the fruit and vegetable (...)

The Italian Supreme Court applies the principles of Directive 2014/104/EU in favour of claimants in a stand-alone case concerning an abuse of dominant position (Cargest)
Studio Legale Scoccini E Associati (Rome)
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Linde (Milan)
Introduction On the 4th of June 2015, the Italian Supreme Court of Cassation (hereinafter referred to as “ISC”) overruled a judgment of the Court of Appeal of Rome concerning a claim brought by 52 food distributors against Cargest Srl because of an abuse of dominant position by the defendant. (...)

The Bulgarian Competition Authority fines three power distribution companies for abusing their dominant market positions by imposing excessive prices to cable operators (CEZ / EVN / Energo-pro)
Mondelez (Sofia)
On May 27, 2015 the Bulgarian Commission for Protection of Competition adopted three separate decisions imposing sanctions on each of the three power distribution companies, and namely CEZ Distribution Bulgaria AD , EVN Bulgaria Electrical Distribution AD and ENERGO-PRO Grids AD for abusing (...)

The ECJ Advocate General Kokott deals another blow to the economic assessment of rebates (Post Danmark II)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Advocate general deals another blow to economic assessment of rebates* It is never a good sign when an advocate general’s opinion warns the European Court of Justice (ECJ) not to be swayed by “ephemeral trends” or the “Zeitgeist” of economic analysis, but instead to stick to the “legal foundations (...)

The Swedish Market Court dismisses an abuse of dominance action because the relatively scarce market data presented was not sufficient to define the relevant market and establish dominance (Pizza24 Nordic / OnlinePizza Norden)
Vinge (Stockholm)
Online Food For Thought* The Swedish Market Court’s judgment in Pizza24 / OnlinePizza A judgment of the Swedish Market Court from February 2015 is an unfortunate missed opportunity to grapple with interesting issues around online intermediary services. The case concerned online services for (...)

The EU General Court upholds the Commission’s record fine and states that exclusivity-inducing rebates are anticompetitive by default (Intel)
DG COMP (Brussels)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Intel and the future of Article 102* A test-case for the effects-based approach In a long-awaited ruling, last week’s General Court judgment has confirmed the (...)

The Milan Commercial Court rejects a damages claim of a telecommunication operator because of the limitation period (Uno Communication and Vodafone)
Studio Legale Scoccini E Associati (Rome)
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Linde (Milan)
Introduction On the 3 April 2014, the Enterprises Court of Milan rejected the damages claim brought by Uno Communication against Vodafone because of expiry of the limitation period (5 years under Italian law). This case arose as a follow-on action from a decision of the Italian Competition (...)

The Lisbon Appeal Court revises an arbitral award in a dispute between the National Pharmacy Association and IMS Health (Associação Nacional de Farmácias and Farminveste / IMS Health)
New University of Lisboa - Faculty of Law
Replacing a previous contract, the National Pharmacy Association (ANF) executed a contract with IMS Health in 2008, by which it transmitted to the latter data on purchases in its associated pharmacies, in exchange for remuneration. This data was used to provide pharma market intelligence in a (...)

The Swedish Competition Authority seeks to fine an undertaking after it was found to abuse its dominant position in a successful private antitrust action (Swedavia)
Vinge (Stockholm)
Follow-on damages inverted* Swedavia and the Swedish Competition Authority Competition lawyers in Europe are well acquainted with the steady rise of follow-on damages actions, whereby consumers harmed by a competition infringement can “piggyback” on an authority infringement decision and seek (...)

The Enterprises Court of Milan awards to a local telecom operator damages in a follow-on case of a margin squeeze decision against the incumbent operator (Brennercom / Telecom Italia)
Studio Legale Scoccini E Associati (Rome)
Introduction On the December 27 2013, the Enterprises Court of Milan awarded damages to Brennercom, a fixed-line telecom operator active in the north-east of Italy, in respect of a claim brought against Telecom Italia. This case arose as a follow-on action from a decision of the Italian (...)

The England and Wales Court of Appeal refuses interim injunction against alleged refusal to deal as claimant failed to identify any market on which the defendant could conceivably be dominant (Chemistree Homecare / Abbvie)
St John’s Chambers (Bristol)
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The UK High Court grants interim injunctions to a bank for continuing to provide financial services despite threats of irreparable harm to claimants (Dahabshiil Transfer Services / Barclays Bank)
St John’s Chambers (Bristol)
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The Lisbon Court of Appeal states that the limitation period of a claim for damages caused by anticompetitive behaviour starts with the awareness of the facts by the claimant and not with the Competition Authority’s decision (ADSL)
Pares Advogados (Lisbon)
On 31 October 2013, the Lisbon Court of Appeal confirmed the decision of the Lisbon Court of First Instance, denying the appellant the right to claim compensation for the losses suffered due to abuse of dominant position by Portugal Telecom and ZON between 2002 and 2003, fined by the Portuguese (...)

The Dutch District Court finds abuse of dominance by credit card network operator (EMS / Equens)
Allen & Overy (Amsterdam)
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Allen & Overy (Amsterdam)
I. The Parties European Merchant Services BV and Equens SE II. The Facts European Merchant Services BV (‘EMS’) is a so-called “acquirer”. That means that EMS processes credit card payment data and enters into contracts with merchants. Merchants are companies – such as retailers – that accept (...)

A Dutch Court issues a preliminary judgment in a dispute between a multinational food and beverage producer and a candy bars producer concerning discount practices with service stations (Mars / Nestlé)
Van Bael & Bellis (Brussels)
On 7 August 2013, a Dutch court issued a preliminary judgment in a dispute between Nestle, the multinational food and beverage producer, and Mars, the producer of candy bars. The dispute concerns the discount practices of Mars in its relationship with service stations. Under these (...)

The UK OFCOM dismisses the case in pricing wholesale calls and distinguishes between technical margin squeeze and abuse of dominance (Thus / Gama Telecom / BT)
United Kingdom’s Competition Authority - CMA (London)
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CRA International (London)
When is a margin squeeze not an abuse?* On 20 June 2013 Ofcom closed its long-running investigation of BT’s pricing of its Wholesale Calls product with a “no grounds for action” decision. The investigation, which commenced in August 2008, focused on allegations of margin squeeze made by THUS plc (...)

The Portuguese Supreme Court clarifies the conditions regarding the existence of an abuse of economic dependence (Toyota)
Sérvulo & Associados (Lisbon)
The recent Toyota Portugal judgment of the Supreme Court of Justice (Supremo Tribunal de Justiça) provides a clear-cut opportunity to, even briefly, examine the current stances on the abuse of economic dependency (also known as relative dominance), i.e., the practice where one undertaking (...)

The UK High Court refuses interim injunction against the refusal to grant access to airport coach terminal even though an arguable case of abuse made out as damages would be an adequate remedy if abuse established at trial (Arriva The Shires / London Luton Airport Operations)
St John’s Chambers (Bristol)
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The Italian Court of Milan issues a judgment finding an abuse of dominant position by the airline company, in violation of Article 102 TFEU, consisting in the refusal to grant to online travel agencies access to the information on its flight tickets (Ryanair)
Legance - Studio Legale Associato (Rome)
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Legance - Studio Legale Associato (Rome)
By judgement no. 7825/2013, the civil court of Milan (Tribunal of Milan) has assessed, from an antitrust perspective, the conducts carried out by Ryanair against Viaggiare S.r.l., an online travel agency (OTA) active in the sale of leisure and travel services, including the sales of Ryanair’s (...)

The UK Competition Appeal Tribunal awards exemplary damages against conduct calculated to make a profit exceeding the compensation payable (2 Travel Group / Cardiff City)
Preiskel (London)
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The UK Competition Appeal Tribunal awards damages in a follow-on claim arising from the abuse of dominance on the market for transportation and partial treatment of water (Albion Water / Dŵr Cymru Cyfyngedig)
Blackstone Chambers (London)
Albion v Dwr Cymru: Incompetence and counterfactuals* The Competition Appeal Tribunal today delivered that rarest of beasts: a judgment awarding damages in a follow-on claim. After its decade-long fight, Albion Water has been awarded around £2 million for Dŵr Cymru’s abuse of dominant position in (...)

The UK Competition Appeal Tribunal dismisses the claim for exemplary damages against a water management company (Albion Water / Dŵr Cymru Cyfyngedig)
Preiskel (London)
Exemplary Damages in Competition Litigation* Much ink has been spilt following 2 Travel v. Cardiff Bus and Albion Water v. Dŵr Cymru Cyfyngedig on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace (...)

The UK Competition Appeal Tribunal awards highest damages ever in a case involving an abuse of dominant position in the water sector (Albion Water)
One Essex Court (London)
There are approximately 45 private actions for damages pending in the United Kingdom Courts. Some are stayed pending final decisions of the Commission and the European Courts; some are at the disclosure stage; some are setting up “confidentiality rings” prior to disclosure; and others are lost in (...)

The Italian Court of Milan orders the incumbent telecoms operator to pay €1.8m damages to a licensed operator in a follow on action for abuse of a dominant position (Telecom Italia / OKcom)
Simmons & Simmons (Milano)
In a further follow on action of note, the Court of Milan published a judgment on 13 February 2013, ordering Telecom Italia to pay damages of some €1.8m to OKcom. OKcom had sought compensation for harm it claimed to have suffered through Telecom Italia, the incumbent telecoms operator, abusing (...)

The Czech Competition Authority again fines telecoms operator for abuse of dominance on the market for telecom services for business customers (Telefónica Czech Republic)
Vilímková Dudák (Prague)
Subject matter of the case: a first decision of the Office The Office for the Protection of Competition ("Office") imposed a fine of CZK 93,109,000 (approximately EUR 3,724,000 ) on Telefónica Czech Republic, a.s. ("Telefónica") for abuse of dominance on the market for public telecom services (...)

The UK Competition Appeal Tribunal awards exemplary damages for breach of competition law (Cardiff Bus)
Herbert Smith Freehills (London)
Summary The UK Competition Appeal Tribunal (CAT) has awarded damages to 2 Travel Group plc (2 Travel) for breach of the Competition Act 1998 Chapter II prohibition on abuse of dominance, ordering Cardiff City Transport Services Limited (Cardiff Bus) to pay compensatory damages for loss of (...)

The UK Competition Appeal Tribunal imposes exemplary damages in a predatory pricing case in the bus services market (2 Travel / Cardiff Bus)
Sidley Austin (London)
2 Travel v Cardiff Bus – Making Commitments in Dominance Cases Less Attractive?* In early July 2012, the UK’s specialist competition court, the Competition Appeal Tribunal (“CAT”), adopted a judgment (“Judgment”) in which it awarded a claimant (2 Travel) exemplary damages in relation to predatory (...)

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 Milan Tribunal rejects application for an injunction against the sale of the iPhone 4S (Samsung / Apple)
Ashurst (Milan)
Italian Court rejects Samsung’s request for injunction against Apple in Italy* On 5 January 2012 an Italian Court rejected Samsung’s request for an injunction against Apple in relation to the sale of the iPhone 4S in Italy. Samsung alleges that Apple is violating a number of its patents, which (...)

The Brussels Court of Appeal decides the appointment of experts to investigate abuse of dominant position in the railway sector (NMBS / SNCB / Electrabel)
Van Bael & Bellis (Brussels)
On 11 October 2011, the Brussels Court of Appeal (Hof van Beroep/Cour d’Appel) gave an interlocutory judgment designating a panel of experts in a case pitting NMBS/SNCB, the national railway company, against Electrabel. The appeal judgment overturns the initial judgment of the Court of (...)

The Irish High Court refuses to grant injunctive relief to restrain an alleged abuse of dominant position by engaging in predatory pricing
Arthur Cox (Dublin)
This case involves an application for injunctive relief to restrain an alleged breach of Competition Law, namely the abuse of a dominant position under s.5 of the Competition Act 2002 (“the 2002 Act”) by engaging in predatory pricing. Whilst the case started off as a domestic Irish Competition (...)

The Latvian Competition Authority fines an airport authority for discriminatory conditions imposed against a provider of tugboat services (PKL flote)
Konkurences padome (Riga)
The CC Repeatedly Fines Riga Freeport Authority for Abuse of Dominant Position* On 29 April 2011 the Competition Council (CC) adopted a decision to fine Riga Freeport Authority for abuse of its dominant position, as the Authority restricted actions of a competitor – provider of tugboat services (...)

The UK Department of Health seeks antitrust damages after abuse of dominant position in the pharmaceutical sector (Reckitt Benckiser)
Van Bael & Bellis (Brussels)
According to press reports, the UK Department of Health, together with 10 health authorities and 144 primary care trusts, has launched an action for damages against Reckitt Benckiser in the High Court. This follows the OFT’s decision to fine Reckitt Benckiser £ 10.2 million for abusing its (...)

A Swedish Court of Appeal awards damages due to a refusal to supply, which was considered to constitute an abuse of a dominant position (Euroclear Sweden / Europe Investor Direct)
Vinge (Stockholm)
,
Cosmetics Europe (Brussels)
Introduction In one of the first actions for damages due to a competition law infringement the Stockholm District Court and the Svea Court of Appeal awarded damages due to a refusal to supply, which was considered to constitute an abuse of a dominant position. Background Euroclear Sweden AB (...)

The German Competition Authority accepts commitments from electric heating providers to implement measures to open the market and reimburse customers
Van Bael & Bellis (Brussels)
,
Practising Law Institute (New York)
On 29 September 2010, the German Federal Cartel Office (“FCO”) announced that an investigation into twenty-four electric heating operators suspected of abusing their respective dominant positions was closed after the FCO accepted commitments to resolve the competition concerns. The (...)

The Brussels Court of First Instance dismisses the action brought by the national railway company for lack of proof (NMBS / SNCB / Electrabel)
Court of First Instance of Namur
On 20 September 2010, the Brussels Court of First Instance dismissed the action brought by NMBS/SNCB, the national railway company, against Electrabel for lack of proof. Mere reliance upon a report published by the energy regulator was found inconclusive evidence to demonstrate an abuse (...)

The French Commercial Supreme Court validates the passing-on defence in a follow-on action based on the lysine cartel (Doux aliments / Ajinomoto Eurolyne)
DG COMP (Brussels)
,
Weil, Gotshal & Manges (Paris)
In a ruling dated 15 June 2010, the French Commercial Supreme Court validated the passing-on defence in a damages action. The Court stated that, in a damages case, the judge must assess whether the claimant has passed on to its own clients the overcharge resulting from an infringement. This (...)

The Tribunal of Milan rejects a request for injunctive relief against the Italian soccer association for illegitimate award procedures of TV rights for the live broadcast of soccer matches (Conto TV / Lega Calcio)
Italian Competition Authority (Rome)
,
Luiss Guido Carli University (Rome)
,
Luiss Guido Carli University (Rome)
CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law (Law no. 106/2007 and Legislative Decree n. 9/2008) with the task of selling soccer matches audio-television rights of its (...)

An Italian Court of Appeal annuls its precedent injunctive relief against the soccer association for illegitimate award procedures of TV rights for live broadcasts of soccer matches (Conto TV / Lega Calcio)
Italian Competition Authority (Rome)
,
Luiss Guido Carli University (Rome)
,
Luiss Guido Carli University (Rome)
Introduction CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law with the task of selling soccer matches audio-television rights of its associates, Serie A and B clubs. On July (...)

The Italian Court of Appeal in Milan issues an injunctive relief against the national football league for illegitimate award procedures of TV rights for live broadcasts of soccer matches (Conto TV / Lega Calcio)
Italian Competition Authority (Rome)
,
Luiss Guido Carli University (Rome)
,
Luiss Guido Carli University (Rome)
Introduction CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law (Law n. 106/2007 and Legislative Decree n. 9/2008) with the task of selling soccer matches audio-television rights (...)

The UK High Court declines to issue a stay against a damage claim brought by tire manufacturers seeking redress from members of an alleged Butadiene Rubber and Emulsion Styrene Butadiene Rubber cartel (Cooper Tire & Rubber Company / Shell Chemicals)
DG COMP (Brussels)
The High Court of England and Wales has declined to issue a stay against a damage claim brought by tyre manufactures seeking redress from members of an alleged Butadiene Rubber and Emulsion Styrene Butadiene Rubber cartel. Background The damage claim brought by the tyre manufacturers follows (...)

The Italian Civil Tribunal in Milan holds a decision on the private enforcement of Art. 82 EC concerning the cease of purchase of advertising spaces on leading commercial networks (Sky / Mediaset)
University of Turin
On September 16, 2009 Sky Italia S.r.l. has filed a lawsuit under the Art. 700 of the Italian Code of Civil Procedure with the Tribunal of Milan against RTI and Publitalia , both owned by the Mediaset Group, for the infringement of (a) the antitrust principles under Art. 82 of the European (...)

The Portuguese Competition Authority forbids abusive behaviour and imposes commitments in the agricultural market (Sugalidal / Cifo / Heinz)
Sérvulo & Associados (Lisbon)
Last October 15th, the Portuguese Competition Authority (Autoridade da Concorrência, hereinafter “PCA”) decided that Sugalidal abused its dominant position in the market for seeds by imposing farmers to acquire and plant only Heinz seeds. According to the Press Release 20/2009, the cPCA decided (...)

The German Higher Regional Court of Düsseldorf rules on a damages claim in the postal sector (Deutsche Post)
Van Bael & Bellis (Brussels)
,
Practising Law Institute (New York)
In a published judgment of 30 September 2009, the Higher Regional Court of Düsseldorf (“Court”) upheld the decision of the Regional Court of Düsseldorf according to which a consolidator was entitled to obtain damages from Deutsche Post AG (“DPAG”) for lost profits. The consolidator was a competitor (...)

The Austrian Supreme Court does not automatically equate cartel law infringements with unfair competition law infringements (Law firm software)
Salzburg University
On 14 July, 2009, the Austrian Supreme Court ruled that cartel law infringements do not automatically qualify as unfair commercial practices under the Austrian Act against Unfair Competition. Background The plaintiff, a small-sized Austrian law firm software provider, brought an action for an (...)

The Belgian Competition Authority fines a mobile operator due to price squeeze practices (Base / Belgacom)
Altius (Brussels)
,
Altius (Brussels)
In the telecommunications sector, recent years have seen an important increase of cases concerning abuse of dominant position brought before either the European Commission or the national competition authorities. In this respect, one of the recurrent issues in these cases is the so-called (...)

The Danish Eastern High Court awards €10M damages for loss suffered as a result of an abuse of a dominant position in the postal services sector (Post Danmark)
Danish Competition and Consumer Authority (Copenhagen)
The Danish Eastern High Court awards damages in the amount On 20 May 2009, the Danish Eastern High Court awarded damages in the amount of DKK 75 million (EUR 10 million) to a Danish distributor of unaddressed mail for loss suffered as a result of the Danish Postal Service’s abuse of a dominant (...)

The German Federal Court of Justice rules on antitrust defense to infringement of standards-related patents on the market for writeable optical media (Orange-book standard)
Ashurst (Milan)
German Federal Court of Justice rules on antitrust defense to infringement of standards-related patents* On 6 May 2009 the German Federal Court of Justice handed down a landmark judgment (KZR 39/06 – Orange-Book-Standard) concerning the use of the competition law defense regarding compulsory (...)

The German Federal Court of Justice clarifies that defendants can invoke the abuse of dominance against an injunction claim of a patentee if the latter has refused a license in an abusive manner (Orange-book standard)
University of East Anglia (Norwich)
Summary In its decision of 6 May 2009 the German Federal Court of Justice held that a defendant can invoke the abuse of dominance against an injunction claim of the patentee if the latter refused a licence in an abusive manner. The patentee acts in an abusive manner if he refuses an (...)

The Italian Supreme Court underlines the need for correct market definition in a private enforcement case concerning an alleged abuse of dominant position (Cetel / Enel)
European Court of Justice (Luxembourg)
Introduction In one of the few cases involving antitrust litigation it dealt with so far, the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy’s highest civil court, the “Court”), on 13 February 2009, handed down an important judgement in which it underlined the need for accurate (...)

The Swedish District Court in Stockholm awards damages for the abuse of a dominant position in the financial services market (Europe Investor Direct / VPC)
Djungo (Stockholm)
Background The Claimants (Europe Investor Direct Aktiebolag, Rutger Kahn Kommanditbolag and OÜ E Direct) provide information to investors on behalf of large listed companies that wish to sell more shares. In order to contact investors, the Claimants had requested registers of shares, (...)

The Polish Supreme Court rules that a civil court may establish an abuse of a dominant position independently, unless the Competition Authority has already found such an abuse (Torun Timber Industry Enterprise)
WilmerHale (Brussels)
On 23 July 2008 the Polish Supreme Court ruled that if it is necessary to declare a contract to be void, a civil court may independently investigate and find an abuse of a dominant position, unless the national competition authority has already established such an infringement. The proceedings (...)

The EU Court of First Instance examines an appeal against a Commission’s decision on abuse of dominant position (Deutsche Telekom)
Van Bael & Bellis (Brussels)
,
Practising Law Institute (New York)
Details of Deutsche Telekom’s appeal against the Court of First Instance’s judgment of 10 April 2008 have been published. According to the summary of the appeal, Deutsche Telekom is arguing, inter alia, that the Court of First Instance infringed Article 82 EC and the principle of legitimate (...)

The UK Competition Appeal Tribunal rejects rival newspaper publishers complaint of alleged abusive anti-competitive practices (Brannigan)
London Borough of Barking and Dagenham
On July 26th 2007 the Competition Appeal Tribunal (“CAT”) unanimously dismissed an appeal brought by Mr. Brannigan, who challenged the OFT’s refusal to investigate the complaint under the Competition Act 1998. Mr. Brannigan was a proprietor of two local newspapers in East Sussex. He alleged that (...)

The UK High Court rejects a claim of predatory behaviour on a local bus transport services market (Chester City Transport / Arriva)
King’s College (London)
Introduction and Background to the Claim In Chester City Council and Chester City Transport Limited v. Arriva Plc, Arriva Cymru Limited and Arriva North West Limited [2007] EWHC 1373 (Ch), the High Court of Justice had to consider a claim brought by Chester City Council (‘the Council’) and (...)

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

The UK High Court rules on interim injunction for an alleged unlawful refusal to supply in the pharmaceutical sector (AAH Pharmaceuticals / Pfizer-UniChem)
King’s College (London)
This note considers one of the two cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) (See also A. Jones, The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces/British Horseracing Board), (...)

The UK Court of Appeal overturns the first ever finding by the High Court of an abuse of dominance pursuant to Art. 82 EC (Attheraces / British Horseracing Board)
White & Case (London)
,
Reed Smith (London)
Background A recent decision of the Court of Appeal has reversed the first ever High Court finding of an Article 82 infringement in litigation between private parties. Attheraces v British Horseracing Board was an appeal from the High Court decision of Justice Etherton. The Judge who had held (...)

The UK Competition Appeal Tribunal grants interim damages of £2 million in a case of abusive drugs price setting (Healthcare at Home / Genzyme)
Hogan Lovells (London)
Background GenzymeLimited ("Genzyme”) is the manufacturer of Ceredase and Cerezyme, drugs used in the treatment of Gaucher disease. Genzyme also provided home care services to administer its drugs. The home care services were initially subcontracted, firstly to Caremark and then to Healthcare (...)

The Lithuanian Court of Appeal reduces the amount of damages in the case of an abuse of dominant position by the former State-controlled company on the alcoholic beverages market (Stumbras)
Lithuanian Competition Authority (Vilnius)
On 26 May 2006 the Lithuanian Court of Appeal (“LCA”) issued a ruling ordering a reduction of the amount of damages to be paid by AB Stumbras (“Stumbras”) to one of its customers, UAB Siauliu tara (“Siauliu tara”). The ruling is the latest development of the case, the origins of which date back to (...)

The Dutch Court of First Instance of Utrecht dismisses a plea on excessive tariff rates under both Dutch competition law and Art. 82 EC (BAT / Chipknip / Tobacco vending machines)
European Commission - DG HR (Brussels)
British American Tobacco (hereafter “BAT”) produces and supplies tobacco products. It owns a large number of cigarette vending machines. Chipknip provides services in relation to banking chip cards. When equipped with specific chips, banking cards can be used as electronic wallets. In 1999, the (...)

The Athenian Court of Appeal seeks a preliminary reference in the case of a pharmaceutical company denying the supply of certain drugs to a Greek wholesaler (GlaxoSmithKline)
University College London
Factual background The plaintiff was a company operating at the wholesale level, in the pharmaceutical sector, supplying pharmacies and hospitals with drugs and other products related to that sector. The defendant was the Greek Subsidiary of the GlaxoSmithKline Company incorporated in the UK. (...)

The Madrid Commercial Court dismisses an application brought by a pay-TV against the Spanish copyright collecting society for breach of Art. 82 EC (Canal Satélite Digital / DTS / SGAE)
London School of Economics
Canal Satélite Digital, S.L. (hereinafter, “Canal Satélite”) y DTS Distribuidora de Televisión Digital, S.A. (“DTS”) are two Spanish companies whose main shareholder is Sogecable, the main pay-TV operator in Spain (which develop its pay-TV activities under the commercial name Digital+). Canal Satélite (...)

The Greek Court of Appeal of Athens examines the concept of the abuse of dominant position in the context of the mobile telephony market (2093/2006)
University of Reading
The facts An agent selling mobile phones lodged a complaint to the Court of First Instance of Athens against its supplier claiming that the latter’s decision to terminate their agreement constituted an anti-competitive unilateral behaviour breaching the relevant national competition law (...)

The German Federal Court of Justice holds that the EC motor vehicles block exemption does not create any obligation to admit a plaintiff as an authorized repairer (Qualitative Selektion)
Fresenius Medical Care (Frankfurt)
Background The defendant, a manufacturer of motor vehicles, terminated its service agreement with the plaintiff, an authorized provider of repair and maintenance services, by contractual notice effective June 30, 2002. The defendant intended to change its criteria for selecting authorized (...)

The French Court of First Instance in Pairs is ready to welcome the defendant’s counter-claim that the plaintiff abused its alleged dominant position through aggressive and spurious patenting policy on the basis of Art. 82 EC (LuK Lamellen / Valeo)
DS Avocats (Paris)
In most patent litigation cases, the defendant’s standard defence consists in challenging the validity of the plaintiff’s patents, whose infringement is claimed. In this case, the defendant’s counter-claim was also based on a far less usual weapon, i.e. the plaintiff’s alleged abuse of dominant (...)

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 (...)

The Greek Court of First Instance of Athens rejects the claim that a pharmaceutical company abused its dominant position by limiting the supply of certain drugs to the distributors in Greece in order to avoid parallel exports of its products (GlaxoSmithKline)
Stavros Niarchos Foundation Cultural Center (SNFCC) (Kallithea)
,
University of Reading
The facts In 2001 a distributor of pharmaceutical products lodged a complain to the Court of First Instance of Athens against its supplier claiming that the latter’s decision to stop supplying it with drugs (as it had been doing for 20 years) and to establish a new distribution network in the (...)

The UK High Court deals with the issue of whether a party could, in national proceedings, rely on conclusions of facts and issues reached by the Commission, the CFI and the ECJ in related proceedings (Iberia UK / Bpb Industries / British Gypsum)
DG COMP (Brussels)
"The English High Court’s Judgment In Iberia U.K. Ltd V (1) Bpb Industries Plc And (2) British Gypsum Ltd"* The facts The defendants (BPB Industries Plc and British Gypsum Ltd) are major suppliers of plasterboard to the UK and for the purposes of Article 86, occupy a dominant position in that (...)

Mergers

The Austrian Competition Authority publishes position paper on the macroeconomic effects of "shutdown mergers" in the context of the COVID-19 crisis Free
Austrian Competition Authority (Vienna)
AFCA publishes position paper on the Macroeconomic Effects of Mergers in the Context of the COVID-19 Crisis - "Shutdown Mergers"* The position paper aims to facilitate notifications of Shutdown Mergers. The COVID-19 pandemic and the restrictions put in place to deal with it have triggered a (...)

The German Competition Authority clears the merger of transport companies providing transport of goods by inland waterway vessel with no conditions because the market is characterised by overcapacities (Rhenus / Deutsche Binnenreederei)
German Competition Authority (Bonn)
Rhenus can take over Deutsche Binnenreederei* The Bundeskartellamt has cleared the planned acquisition of Deutsche Binnenreederei AG, Berlin, by Rhenus SE & Co. KG, Holzwickede. The main business of Deutsche Binnenreederei is the transport of goods by inland waterway vessel, especially on (...)

The EU Commission unconditionally clears a merger between global suppliers of optical sensors and optical semiconductors (AMS / OSRAM)
DG COMP (Brussels)
Mergers: Commission clears AMS’ acquisition of OSRAM* The European Commission has approved unconditionally, under the EU Merger Regulation, the proposed acquisition of OSRAM by AMS. The Commission concluded that the transaction would raise no competition concerns in the European Economic Area (...)

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

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

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

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

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

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

The UK Competition Authority blocks sports-fashion merger finding that even with COVID-19 significantly impacting the relevant sector there would still be negative effects on the competition if the merger proceeded (JD Sports / Footasylum) Free
United Kingdom’s Competition Authority - CMA (London)
CMA blocks sports-fashion merger* The CMA has blocked JD Sports’ purchase of close competitor Footasylum after finding it would leave shoppers worse off. Following an in-depth Phase 2 investigation, the Competition and Markets Authority (CMA) has concluded that this transaction would lead to a (...)

The UK Competition Authority blocks a sports-fashion retailer acquisition finding that even with COVID-19 significantly impacting the relevant sector, the transaction would lead to a substantial lessening of competition nationally (JD Sports / Footasylum) Free
Van Bael & Bellis (Brussels)
On 6 May 2020, the UK’s Competition and Markets Authority (“CMA”) blocked the sports-fashion retailer JD Sports’ already completed purchase of sportswear retailer Foot- asylum. The CMA concluded that the parties were close competitors and the transaction would lead to a substan- tial lessening of (...)

The EU Commission approves an acquisition between two large EEA purchasers of copper scrap following an in-depth investigation and concludes that the merger does not adversely affect competition (Metallo / Aurubis)
Van Bael & Bellis (Brussels)
On 4 May 2020, the Commission approved German Aurubis’ € 380 million acquisition of Belgian rival Metallo following an in-depth investigation. Aurubis is Europe’s largest integrated copper producer, selling copper shapes, semi-finished copper and various copper alloy products. It also processes (...)

The EU Commission clears acquisition of large specialised refiner of copper scrap by the world’s largest refiner of copper scrap (Aurubis / Metallo)
DG COMP (Brussels)
Mergers: Commission clears Aurubis’ acquisition of Metallo* The European Commission has approved, under the EU Merger Regulation, Aurubis’ acquisition of Metallo, a large copper scrap refiner. The Commission concluded that the merger would not adversely affect competition in the European (...)

The French Competition Authority clears without commitments a multidisciplinary healthcare group’s takeover of a mental health services group (Orpea group / Sinoué group)
French Competition Authority (Paris)
The Autorité de la concurrence clears, without commitments, the acquisition of sole control of Sinoué group by Orpea group* On 20 March 2020, the Orpea group notified the Autorité de la concurrence of its plan to acquire sole control of the Sinoué group. Parties to the transaction The Orpea (...)

The German Competition Authority clears acquisition of key European shunter manufacturer by Chinese state-owned manufacturer of railway vehicles because the target company’s competitiveness has been decreasing for years (Vossloh Locomotives / CRRC Zhuzhou Locomotives)
German Competition Authority (Bonn)
Chinese company CRRC can acquire Vossloh’s shunter division* The Bundeskartellamt has today cleared the acquisition of Vossloh Locomotives GmbH, Kiel, by CRRC Zhuzhou Locomotives Co., Ltd., Zhuzhou (People’s Republic of China). Andreas Mundt, President of the Bundeskartellamt: “In the present (...)

The German Competition Authority approves an acquisition between two locomotives on the basis that the company’s competitiveness decreased over the years (Vossloh / Zhuzhou)
Van Bael & Bellis (Brussels)
On 27 April 2020, the German Federal Cartel Office (“FCO”) cleared the acquisition of Vossloh Locomotives (“Vossloh”) by Chinese CRRC Zhuzhou Locomotives (“CRRC”) after an in-depth review. Vossloh is the leading manufacturer of diesel-powered shunters in the EEA and Switzerland. CRRC is a subsidiary (...)

The UK Competition Authority clears the takeover of a mobile payments company after conducting an in-depth Phase 2 probe (PayPal / iZettle)
CRA International (London)
,
CRA International (London)
,
CRA International (Boston)
Acquisitions of Potential Rivals in Digital/Tech: Valuation Analysis as Key Economic Tool - PayPal/iZettle Antitrust authorities everywhere are increasingly concerned with so-called “killer acquisitions” – cases where an established incumbent buys up a small rival which might have the potential (...)

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)
,
White & Case (Brussels)
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 European Union (“CJEU” or “Court”) dismissed the European Commission’s appeal against the annulment of its decision to prohibit the (...)

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)
,
Jones Day (Paris)
,
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 Competition Commissioner Margrethe Vestager takes the stage at the GCLC Annual Conference to discuss her vision for fairness and competition policy
FTI Consulting (London)
In January 2018 Competition Commissioner Margrethe Vestager took the stage at the GCLC Annual Conference to discuss her vision for fairness and competition policy. Most notable were her points about the role of internal documents in merger clearance investigations. Her statement, “internal (...)

The EU General Court annuls a prohibition merger decision and finds that the Commission had failed to properly communicate the final version of its econometric analysis (UPS / TNT)
Van Bael & Bellis (Brussels)
On 7 March 2017, the General Court (“GC”) annulled the European Commission’s decision to prohibit UPS’ acquisition of TNT Express under the EU Merger Regulation. By way of background, UPS notified the acquisition of TNT Express to the Commission in June 2012. Following an in-depth Phase II (...)

The EU General Court annuls the Commission’s decision to prohibit a merger in the International express package delivery sector (UPS / TNT)
CRA International (London)
,
CRA International (London)
The General Court annulled on 7 March 2017 the European Commission’s decision in 2013 to prohibit UPS’ proposed acquisition of TNT. The judgment was much awaited also because of its potential for clarifying the role of efficiencies in merger review. In practice, the Court overturned the decision (...)

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 UK Supreme Court overturns the Competition Appeals Tribunal judgment on whether acquisition of assets upon liquidation is subject to merger control (Eurotunnel / SeaFrance / MyFerryLink)
Blackstone Chambers (London)
Asset acquisitions and mergers: Eurotunnel in the Supreme Court*The Supreme Court’s recent decision in Eurotunnel II ([2015] UKHL 75) brings some much-needed clarity to what was becoming a rather opaque corner of the UK merger regime. It also contains statements of general principle which are (...)

The EU Commission study analyzes two national telecom merger cases, and finds an associated increase in prices in the Netherlands case, but not in the Austria case (T-Mobile / Orange), (T-Mobile / tele.ring)
European Commission (Brussels)
,
CRA International (Munich)
,
DG COMP (Brussels)
Ex post analysis of two mobile telecom mergers: T-Mobile/tele.ring in Austria and T-Mobile/Orange in the Netherlands* In a nutshell: Ex post evaluation of merger decisions is a valuable tool for improving the understanding of markets and to assess merger control policy. To provide reliable (...)

The EU Commission unconditionally clears acquisition of one equipment manufacturer by another in the market for the supply of aero-derivative gas turbines (Siemens / Dresser-Rand)
DG COMP (Brussels)
,
DG COMP (Brussels)
,
German Competition Authority (Bonn)
Siemens / Dresser* In a nutshell The Commission was concerned that the acquisition of Dresser-Rand by Siemens would reduce the number of significant suppliers from 3 to 2 for rotating equipment in the oil and gas industry. The in-depth investigation showed that the parties’ activities in gas (...)

The German Federal Court of Justice clarifies requirements for state liability in illegal prohibition of a merger by the Federal Competition Authority (GN Store Nord II)
Jones Day (Brussels)
The case before the Oberlandesgericht, (Higher District Court of Düsseldorf (OLG Düsseldorf)) related to a damages claim brought by Phonak against the Federal Republic of Germany based on the German rules of state liability (Section 839(1)(1) of the German Civil Code (BGB) in conjunction with (...)

The Regional Court of Cologne rejects damages claim by a hearing aid manufacturer against the Federal Cartel Office following a merger prohibition decision (GN Store Nord)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment of 26 February 2013, the German Regional Court of Cologne rejected an action for damages in the amount of more than € 1.1 billion by Danish hearing-aid manufacturer GN Store Nord A/S against the German Federal Cartel Office (FCO). GN Store sought compensation from the FCO for (...)

The EU Commission develops a novel theory of harm based on the effect of the transaction on the new entity’s bargaining power (Universal Music Group / EMI Music)
CRA International (Brussels)
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The Graduate Institute for International and Development Studies (Geneva)
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DG COMP (Brussels)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Mergers and bargaining power: back to the future? Insights from the Universal/EMI merger* The decision to approve the acquisition of EMI’s recorded music rights (...)

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 EU Court of Justice orders Commission to pay € 50,000 in damages for errors made in a merger control proceedings (Schneider Electric)
Van Bael & Bellis (Brussels)
In a recently published order of 9 June 2010, the European Court of Justice set the amount of damages that the European Commission must pay to Schneider Electric SA. This order follows the European Court’s judgment of 16 July 2009 finding that, because of errors made by the Commission in the (...)

The EU General Court examines a claim from a French local authority who seeks damages for Commission’s failure to impose conditions in a merger (Communauté de communes de Lacq)
Van Bael & Bellis (Brussels)
On 5 June 2010, details were published in the Official Journal of the European Union of a damages action before the General Court brought by Communauté de communes de Lacq (a French local authority) against the European Union, requesting compensation for injury allegedly suffered by the (...)