Preliminary ruling (Art. 267 TFEU)

Anticompetitive practices

The German Federal Supreme Court rules that the European Central Bank should have explicitly considered whether there was an appropriate balance between the monetary policy effects of the Public Sector Purchase Programme and the economic effects, and the ruling denies the primacy of EU law over the German Basic Law (Dr. W... a.e.)
Delcade Avocats & Solicitors (Paris)
On 5 May 2020, the German Federal Constitutional Court sitting in Karlsruhe adopted its Dr. W... e.a. ruling by seven votes to one which results in a genuine declaration of war at the Court of Justice of the European Union. Dr. W… e.a. denies the primacy of EU law over the German Basic Law and (...)

The EU Court of Justice finds, following a preliminary reference, that certain interchange fees imposed by a bank payable on cross-border card transaction within the EEA are anticompetitive (Budapest Bank)
Hausfeld (London)
On 2 April, the European Court of Justice (“CJEU”) issued a judgment arising from a preliminary reference from the Hungarian Supreme Court concerning a 2009 decision by the Hungarian Competition Authority against Visa Europe Ltd (“Visa”), MasterCard Europe SA (“MasterCard”) and a number of (...)

The EU Court of Justice ascertains whether the multilateral interchange fee set by the banks for credit card transactions with a merchant pursued no objective other than a simple price increase (Budapest Bank)
Van Bael & Bellis (Brussels)
On 2 April 2020, the Court of Justice of the European Union (the “Court of Justice”) delivered a preliminary ruling in which it provided clarifications and guidance to the Kúria (Supreme Court of Hungary) on the distinction between restrictions of competition “by object” and “by effect” under (...)

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

The EU Court of Justice confirms the limitations that apply before courts are able to classify anticompetitive agreements as a restriction of competition by object under Art 101 TFEU in a multilateral interchange fee credit card transaction (Budapest Bank)
Ashurst (London)
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Ashurst (London)
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Ashurst (Brussels)
On 2 April 2020, the European Court of Justice ("ECJ") delivered its judgment in Budapest Bank on a reference for a preliminary ruling from Hungary’s highest court. The judgment confirms the important limitations that apply before competition authorities and courts are able classify (...)

The EU Court of Justice clarifies the conditions under which ‘pay-for-delay’ agreements preventing generic versions of a patented medicine from entering the market or delaying such entry may constitute a restriction of competition ‘by object’ or ‘by effect” as well as an abuse of dominant position (Generics - UK)
University of Liège
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University of Liège
On 30 January 2020, the Court of Justice of the EU (‘CJEU’) ruled on the applicability of competition law to settlement agreements between a holder of a pharmaceutical patent and manufacturers of generic medicines. In a judgment issued only a week after Advocate General Kokott delivered her (...)

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 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)
Van Bael & Bellis (Brussels)
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 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 Spanish Competition Authority seeks a preliminary ruling on the framework agreement for the dock work sector
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
In Spain, the dock work sector has been traditionally regulated by Royal Decree 2/1986. This Decree provided special sectorial rules, including the obligation to hire workers from the port docker management limited companies (“Sociedades Anónimas de Gestión de Estibadores Portuarios” or “SAGEP”) (...)

The Italian Council of State confirms the national Antitrust Authority’s fine of €180 million to a pharmaceutical company for having “artificially differentiated” their medicinal products when entering into an anticompetitive agreement by object (Roche / Novartis)
Rucellai & Raffaelli (Milan)
1. Introduction The Italian Council of State, with its judgment No. 4990 of 2019, rejected the appeal proposed by F. Hoffmann-La Roche Ltd, Roche S.p.A., Novartis AG and Novartis Farma S.p.A. against the first-instance judgement by which the Regional Administrative Court of Latium (the (...)

The Spanish Competition Authority seeks a preliminary ruling from the CJEU in connection with the framework agreement for the cargo handling sector (Acuerdo Marco de la Estiba)
Callol, Coca & Asociados (Madrid)
The CNMC has requested a preliminary ruling from the CJEU on the legality of the proposed stevedoring framework agreement, within the context of the ongoing investigation launched by the said Authority in November 2017 (file S/DC/0619/17, Acuerdo Marco de la Estiba). The move is remarkable, (...)

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 Higher Regional Court of Frankfurt/Main, applying the preliminary ruling of the EU Court of Justice, finds that a luxury perfume provider can prohibit unauthorised distribution over third-party websites (Coty Germany)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
This judgment of the Higher Regional Court of Frankfurt/Main of 12 July 2018 applying the preliminary ruling of the CJEU of 6 December 2017 in the case Coty Germany GmbH v Parfümerie Akzente GmbH will reassure manufacturers of luxury products that they can protect such products from unauthorised (...)

The EU Court of Justice confirms that related undertakings are not obliged to disclose links between them to the public contracting authority, and that they can submit non-concerted offers to the same bid (Šiauliai)
CMS Albiñana y Suárez de Lezo (Madrid)
In a preliminary ruling dated 17 May 2018, the European Court of Justice (“ECJ”) considered that related companies are not obliged to disclose links between them when submitting separate offers for public procurement contracts. However, the contracting authority will be obliged to verify that (...)

The EU Court of Justice clarifies to what extent related undertakings may submit separate bids in the same tendering procedure (Lloyd’s / Aparcal)
Arendt & Medernach (Luxembourg)
This preliminary ruling relates to a tendering procedure launched by an Italian public authority, Arpacal, for the award for a public service contract for insurance. Two Lloyd’s ‘syndicates’ participated in the call for tenders. Their tenders were both signed by an agent of Lloyd’s General (...)

The EU Court of Justice holds that suppliers of luxury goods may under certain conditions restrict authorised retailers in a selective distribution system not to sell their goods via third-party online platforms to preserve their products’ ‘luxury image’ (Coty Germany)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. Introduction On 6 December 2017, the European Court of Justice (ECJ) handed down its long-awaited judgment on the permissibility of restrictions by suppliers of luxury goods to sell their products via third-party online platforms under Article 101 (1) TFEU. The question has been subject to (...)

The EU Court of Justice confirms that not all practices by agricultural producer organisations and their associations are automatically excluded from the application of competition rules (APVE)
Baker McKenzie (London)
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Baker McKenzie (Brussels)
Under certain strict conditions, agricultural producers can coordinate their pricing and quantities without risk of falling foul of the EU competition rules. However, the European Court of Justice (ECJ) has recently confirmed that not all practices by agricultural producer organisations and (...)

The EU Court of Justice Advocate General Saugmandsgaard Øe indicates that providing misleading information aimed at undermining the reputation of one drug to the benefit of another drug might constitute a restriction by object (Hoffmann-La Roche)
Liège University
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Liège University
On 21 September 2017 Advocate General Saugmandsgaard Øe (‘AG’) issued his opinion in F. Hoffmann-La Roche vs Autorità Garante della Concurrenza e del Mercato (AGCM). In his opinion the AG provides guidance to the Court of Justice of the European Union (‘CJEU’) on the various questions raised by the (...)

The Advocate General Wahl considers that agricultural producers’ organisations may be held liable under EU competition law (APVE)
Van Bael & Bellis (Brussels)
On 6 April 2017, Advocate General (“AG”) Wahl issued an opinion on a preliminary reference from the French Supreme Court arising from the Endive cartel investigated by the French Competition Authority. In his opinion, the AG con- siders that agricultural producers’ organisations and their (...)

The EU Court of Justice issues a preliminary ruling on the liability for anti-competitive behaviour by employees and outside contractors (VM Remonts)
Hogan Lovells (Brussels)
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AkzoNobel (Brussels)
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Baker Botts (London)
Liability for anti-competitive behaviour by your employees and outside contractors: when you are off the hook and when you are not* In its recent VM Remonts judgment, the Court of Justice of the EU has confirmed the strict liability of companies for the anti-competitive behaviour of their (...)

The EU Court of Justice rules that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
Blackstone Chambers (London)
License fees, invalid patents and Article 101 TFEU: Genentech v Hoechst and Sanofi Aventis* Consider an agreement under which a license fee is payable for use of a patented technology even if it transpires that the patent is invalid. Is such an agreement contrary to Article 101 TFEU? The answer (...)

The EU Court of Justice rules that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
Van Bael & Bellis (Brussels)
On 7 July 2016, the Court of Justice of the European Union (the “ECJ”) issued its judgment on a request for a preliminary ruling from the Paris Court of Appeal, which had enquired whether Article 101 TFEU precludes a licensee from paying royalties pursuant to a licensing agreement when the patent (...)

The Frankfurt Court of Appeals submits preliminary reference on how to treat bans on sales via third-party internet platforms in selective distribution systems (Coty)
Reed Smith (Brussels)
European Court of Justice to Rule on Legality of Online Sales Bans*An appeal court in Frankfurt has asked the European Court of Justiceto clarify the application of the competition rules to online sales. The Frankfurt court made its request in the context of a dispute between a leader in beauty (...)

The Lithuanian Supreme Administrative Court confirms that 29 travel agencies breached antitrust rules to limit discounts for travel packages (Eturas)
Van Bael & Bellis (Brussels)
On 4 May 2016, the Lithuanian Supreme Administrative Court (“Lithuanian Supreme Court”) confirmed that 29 travel agencies had breached antitrust rules when using an online booking system to limit discounts for travel packages. This judgment follows the ruling handed down by the Court of Justice (...)

The Frankfurt Court of Appeals submits preliminary reference on how to treat bans on sales via third-party internet platforms in selective distribution systems (Coty)
Heinz & Zagrosek (Köln)
Ban on sales via third-party internet platforms in Germany and Pierre Fabre – recent referral to the Court of Justice* The question of how to treat bans on sales via third-party internet platforms in selective distribution systems and the impact of the Court of Justice’s Pierre Fabre ruling (see (...)

The Frankfurt Court of Appeals refers the question of how to treat bans on sales via third-party internet platforms to the EU Court of Justice (Coty)
US Federal Trade Commission (FTC)
The question of how to treat bans on sales via third-party internet platforms in selective distribution systems and the impact of the Court of Justice’s Pierre Fabre ruling (see judgment of October 13, 2011, case C-439/09) have been on the agenda in Germany for some time. Recently, the Frankfurt (...)

Advocate General Wathelet concludes that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
Van Bael & Bellis (Brussels)
On 17 March 2016, Advocate General Wathelet issued his opinion on a request for a preliminary ruling from the Paris Court of Appeal, which inquired as to whether Article 101 TFEU precludes a licensee from paying royalties pursuant to a licensing agreement when the patent, which is the subject (...)

The Romanian High Court of Cassation and Justice reviews the application filed by the Competition Authority following the decision of the EU Court of Justice on the anti-competitive object of agreements to share clients (Eureko)
Romanian Competition Council (Bucharest)
On 7 September 2010, Consiliul Concurentei din Romania (Romania Competition Council) adopted Decision no 39 which found that 14 of the 18 companies on the mandatory private pension funds market (second pilar) violated Article 5 alin.(1) lit. c) of the Competition Law no 21/1996 and Article 81 (...)

The EU Court of Justice provides guidance on the notion of restriction by object in the context of commercial lease contracts (Maxima Latvija)
Simmons & Simmons (London)
Traditionally, land agreements do not attract much scrutiny under competition law, although certain restrictive covenants and rights may raise issues. When issues do arise, they tend to be considered at national level rather than European Union level, as the effect on trade is rarely (...)

The EU Court of Justice finds limited exclusivity restriction in lease agreements not to be a restriction by object (Maxima Latvija)
Van Bael & Bellis (Brussels)
On 26 November 2015, the European Court of Justice (“ECJ”) handed down its judgment in a request for a preliminary ruling in the proceedings between Maxima Latvija, a Latvian entity carrying out business predominantly in the food retail trade, and the Latvian Competition Council. By way of (...)

The EU Court of Justice Advocate General Szpunar issues opinion on circumstances where the use of an online booking system by travel agents may amount to a concerted practice (Eturas)
Ashurst (Milan)
EU Court of Justice’s Advocate General issues opinion on circumstances where the use of an online booking system by travel agents may amount to a concerted practice* On 16 July 2015 Advocate General Szupnar handed down his opinion following a request for a preliminary ruling by the Court of (...)

The EU Court of Justice provides further guidance on long-term exclusive purchase and non-compete obligations (Estación de Servicio Pozuelo / Galp Energía España)
Van Bael & Bellis (Brussels)
On 4 December 2014, the European Court of Justice (the “ECJ”) issued an order addressing two preliminary questions from the Spanish Supreme Court concerning an exclusive purchase obligation, which presumably prevented the party bound by the exclusivity from purchasing the products of competing (...)

The Advocate General Wathelet renders his opinion and provides a fresh perspective on FRAND licenses (Huawei / ZTE)
DLA Piper (Brussels)
The long-awaited Opinion delivered by Advocate General Wathelet on 20 November 2014 in the dispute opposing Huawei and ZTE (Case C-170/13) sheds a new and bright light on the legal landscape for injunctions in SEP-FRAND licensing contexts, provided the Court of Justice follows the Advocate (...)

The German Federal Court of Justice applies a case-by-case analysis in order to decide on the internal liability between joint and several debtors of a fine imposed by the European Commission (Calcium Carbide)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. The Facts The claimant seeks reimbursement from the two defendants for a fine imposed by the European Commission on all three companies for allegedly infringing European competition law rules. In 2009, the European Commission fined several suppliers of calcium carbide and magnesium (...)

The EU Court of Justice answers a request for a preliminary ruling about use of trademarks to prevent the importation of spare parts (Honda)
Van Bael & Bellis (Brussels)
On 17 July 2014, the Court of Justice of the European Union (“ECJ”) answered a request for a preliminary ruling from a Greek Court (Monomeles Protodikeio Athinon) inquiring as to whether the use by Honda Giken Kogyo Kabushiki Kaisha (“Honda”) of its trademarks to prevent the importation of Honda (...)

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 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 establishes that a horizontal in-house acquisition of goods fell within the scope of the procurement directive in force at the relevant time (Datenlotsen Informationssysteme)
University of Bristol - Law School
Has Directive 2014/24 come too late for horizontal in-house provision? (C-15/13)* In its recent Judgment in case C-15/13 of 8 May 2014 Datenlotsen Informationssysteme, the CJEU has addressed a so-called ’horizontal’ in-house provision of goods and rejected the proposal of AG Mengozzi to exclude (...)

Art. 267 TFEU preliminary rulings: An overview of EU and national case law
As European competition law continues to prosper and as the European Commission continues to innovate, the role of the European Courts in Luxemburg continues to fascinate those who practice, teach or enforce. The Courts have an appellate function and a guidance function. In this foreword I will (...)

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 Supreme Administrative Court of Lithuania refers to the Court of Justice of the European Union for a preliminary ruling about concerted practices relating to online sale of package tours (Eturas)
European Commission (Brussels)
Lithuania: Reference for Preliminary Ruling to ECJ in Case relating to Online Sale of Package Tours* On 17 January 2014, the Supreme Administrative Court of Lithuania (Supreme Court) referred to the Court of Justice of the European Union for a preliminary ruling in the case Eturas and others (...)

The Lisbon Court of Appeal confirms fines against a professional association for anticompetitive practices in the training market (OTOC)
New University of Lisboa - Faculty of Law
In July 2007, the Portuguese Order of Chartered Accountants (OTOC), legally entrusted with regulating the activities of chartered accountants in Portugal, adopted a binding regulation concerning a mandatory training system, aimed at guaranteeing the quality of these professional services. Under (...)

The EU Court of Justice rules that a general interdiction to rely on the capacities of more than one undertaking for the same qualification category imposed on tenderers is precluded by law (Mannocchi Luigino)
University of Bristol - Law School
A jigsaw of qualifications or a procurement puzzle?: CJEU launches a depth charge against certification systems (C-94/12)* In its Judgment of 10 October 2013 in case C-94/12 Swm Costruzioni 2 and Mannocchi Luigino, the Court of Justice of the EU has followed the Opinion of AG Jääskinen (which I (...)

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

The EU Court of Justice rules that reliance on legal advice or decisions of NCAs does not preclude imposition of fines for infringing Art. 101 TFEU (Bundeswettbewerbsbehörde / Schenker)
DG CNECT (Brussels)
In a reference for a preliminary ruling under Article 267 TFEU, made by the Oberster Gerichtshof (Austria) on 5th December 2011, the EU Court of Justice was asked to respond to the following question; whether a fine may be imposed, in case of an infringement of Art.101 TFEU, when the (...)

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

The Slovak Supreme Court upholds the Competition Authority’s decision in a banking cartel case (VUB Bank)
European Commission (Brussels)
Slovakia: The Supreme Court upholds Authority’s Decision in Banking Cartel Case* On 21 and 22 May 2013, the Supreme Court of the Slovak Republic (Supreme Court) upheld a decision of the Antimonopoly Office of the Slovak Republic (the Office) in a case concerning a banking cartel, vis-à-vis two (...)

The EU Court of Justice rules on the dichotomy between anticompetitive object-effect with respect to bilateral arrangements between car dealers and insurance companies (Allianz)
University of Groningen
Allianz and the Object-Effect Dichotomy in Article 101(1) TFEU: A Practical Solution Meets Not So Practical Competition Law* Two separate insurance companies Allianz and Generali concluded a number of contracts with autorepair shops on the prices and other conditions that would apply for cars (...)

The EU Court of Justice hands down preliminary ruling on circumstances in which agreements concerning the price of automotive repairs concluded between insurance companies and repair shops may have an anti-competitive object (Allianz / Generali)
Van Bael & Bellis (Brussels)
On 14 March 2013, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Hungarian Supreme Court on the application of Article 101 TFEU to certain agreements between insurance companies and car repair shops. Once a (...)

The EU Court of Justice upholds that a regulation introducing a system of compulsory training for chartered accountants may fall within the scope of the interdiction in Article 101(1) TFEU (OTOC)
Blackstone Chambers (London)
Anticompetitive behaviour by professional regulators – Wouters naturalised* The ECJ’s judgment in Case C-309/99 Wouters – that the Dutch legal regulator was an association of undertakings for the purposes of competition law, but that its prohibition on partnerships between lawyers and accountants (...)

The EU Court of Justice rules on compulsory training obligations by professional bodies (Order of Chartered Accounts)
Van Bael & Bellis (Brussels)
On 28 February 2013, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Portuguese Court of Appeal on the application of Article 101 TFEU to professional associations. The ECJ found that a professional association is (...)

The EU Court of Justice rules on the interpretation of Article 101 TFEU and finds that undertakings cannot justify restriction of competition relying on the claim that a competitor operates illegally on the relevant market (Akcenta)
ClientEarth (Bruxelles)
Vigilantes on the market: Can undertakings restrict competition to ‘help out’ public authorities?* In an interesting case decided today the CJEU held that a number of Slovak banks could not exclude a competitor even if that competitor was allegedly operating illegally on the Slovak market. It’s (...)

The EU Court of Justice sides in favour of the Slovakian Competition Authority and rules that an agreement intended to exclude a competitor is contrary to the competition rules even if the competitor is operating unlawfully on the market (Akcenta)
Kinstellar (Bratislava)
Factual background On 9 June 2009, the Antimonopoly Office of the Slovak Republic (the "AMO"), a first-level authority, found that three major banks – Slovenská sporiteľna, a.s. (the "SLSP"), Československá obchodná banka a.s. (the "CSOB") and Všeobecná úverová banka a.s. (the "VUB")(jointly refered (...)

The EU Court of Justice hands down preliminary ruling on post-term non-compete obligation in franchise agreement (La Retoucherie)
Van Bael & Bellis (Brussels)
On 7 February 2013, the Court of Justice of the European Union (“ECJ”) handed down its ruling in response to a preliminary reference from a Spanish court that had questioned the meaning of the phrase “premises and land from which the buyer has operated during the contract period” in Article (...)

The EU Court of Justice establishes that a national competition authority does not have to prove appreciable effect on competition for object agreements (Expedia)
Lancaster University
Anti-Competitive Agreements: knowing your ‘object’ from your ‘appreciable’ Posted on February 11, 2013* In October 2012 Christopher Brown posted an interesting blog on AG Kokott’s opinion in Case C-226/11 Expedia. The full judgment was delivered on 13 December 2012 and it seems appropriate to look (...)

The EU Court of Justice rules that a national competition authority is not precluded from applying Article 101(1) TFEU to an agreement situated below the threshold specified by de minimis notice (Expedia)
University of Leeds
Article published on Centre for Competition Policy blog. The Court of Justice’s Expedia ruling undermines the economic approach by eliminating the ‘de mimimis’ defence in object agreements* One of the most important holdings of the Court of Justice in recent times is buried in paragraph 37 of (...)

The EU Court of Justice rules that if there is an appreciable restriction of competition and that National Competition Authorities may apply Art. 101(1) TFEU even if de minimis threshold is not reached (Expedia)
University College London
In a reference for a preliminary ruling under Article 267 TFEU, from the Cour de cassation (France), made by decision of 10 May 2011 in relation to proceedings between the company Expedia Inc. (’Expedia’) and the Autorité de la concurrence (’the Competition Authority’) the ECJ (Second Chamber) was (...)

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 & Partners (Bucharest)
I. Introduction In the field of competition law the Commission plays multiple roles and acts against several forms of anticompetitive activities prohibited by Articles 101 and 102 TFEU, if the interstate trade criterion is satisfied. National competition authorities may apply the above named (...)

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

The ECJ Advocate General Cruz Villalón delivers his opinion concerning the interpretation of Article 101(1) TFEU in relation to a purely internal situation (Allianz Hungária Biztosító)
Mircea & Partners (Bucharest)
I. Introduction From the reference for preliminary ruling it follows unmistakably that the proceedings before the referring Court concern an infringement of the national competition law and that Article 101 TFEU is only circuitously contemplated. According to AG Cruz Villalón the reference to (...)

The ECJ Advocate General Kokott hands down her opinion on the duty of the national authorities to respect the de minimis notice, while applying Art. 101 TFEU (Expedia)
Mircea & Partners (Bucharest)
I. Essential factual and legal aspects of the Expedia Inc Case The reference for a preliminary ruling has been initiated by a dispute between Expedia, an on-line travel agency, and the French Competition Authority, henceforth called FCA, concerning a selling joint-venture agreement between (...)

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 EU Court of Justice specifies the regime of the quantitative selection criteria in a selective distribution system under the motors vehicle block exemption regulation (Auto 24/ Jaguar Land Rover)
UGGC Avocats (Paris)
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UGGC Avocats (Paris)
After a referral by the French Supreme Court (“Cour de cassation”) for a preliminary ruling on 29 March 2011, the CJEU provides interesting answers to the question of control of selection criteria in a quantitative selective distribution system. French case law has given rise to discussions as (...)

The EU Court of Justice confirms the power of the Czech Competition Authority to punish a pre-EU-accession cartel on the basis of Art. 101 TFEU (Toshiba)
Vilímková Dudák (Prague)
Proceedings before the Commission On 2 August 2006, the European Commission (the “Commission”) initiated proceedings regarding an alleged breach of competition rules by numerous companies producing gas insulated switchgear (“GIS”) who entered into a worldwide bid-rigging agreement. The cartel (...)

The EU Court of Justice renders a judgment on a Czech preliminary reference in the gas-insulated switchgear case (Toshiba)
Hong Kong Competition Commission
Upcoming judgment in case C-17/10 Toshiba and Others to shed light on the question of parallel proceedings within the ECN* On 14 February, the Court of Justice will deliver a ruling on a preliminary reference by a Czech Regional Court in Brno, which is likely to provide welcome guidance on the (...)

The EU Court of Justice rules on the division of competencies between the national and the supranational enforcers of competition law in relation to a worldwide cartel on the market for gas insulated switchgear (Toshiba)
ClientEarth (Bruxelles)
Delimitation of jurisdiction in competition law* What happens to the allocation of respective competences of the Commission and national competition authorities if an international cartel is implemented both in the EU and the Czech Republic before accession to the EU but action is taken after (...)

The Slovak Supreme Court refers a banking cartel case to the EU Court of Justice for preliminary ruling (Akcenta)
European Commission (Brussels)
Slovakia: Slovak Court refers Banking Cartel Case to ECJ for Preliminary Ruling* On 10 February 2012, the Supreme Court of the Slovak Republic (Supreme Court) has decided to submit four questions for a preliminary ruling to the Court of Justice of the European Union (ECJ) (C - 68/12) in the (...)

A Portuguese Court refers liberal professional association case to ECJ for preliminary ruling (OTOC)
European Commission (Brussels)
Portugal: The Lisbon Court of Appeal makes Reference for Preliminary Ruling to ECJ in Liberal Professions Case (case C-1/12)* A preliminary ruling is pending following a reference made by the Lisbon Court of Appeal (the Court) to the Court of Justice of the European Union (ECJ) in the (...)

The EU Court of Justice rules that absolute bans on Internet sales are prohibited (Pierre Fabre Dermo-Cosmetique)
Vogel & Vogel (Paris)
In 2006, the French Competition Council (Conseil de la concurrence) initiated proceedings regarding practices in the cosmetics and personal care products distribution sector after finding that the majority of manufacturers required that sales be carried out only in a physical space and always (...)

The EU Court of Justice validates exclusive rights for broadcasting of sports events provided they do not grant absolute territorial exclusivity (Football Association Premier League)
Vogel & Vogel (Paris)
The Football Association Premier League (FAPL), holder of the television broadcasting rights for the Premier League, the leading professional football league competition for football clubs in England, grants exclusive licences in respect of those broadcasting rights to one TV channel per (...)

The EU Court of Justice rejects the argument that the prohibition on the import, sale and use of foreign decoding devices was necessary to ensure compliance with the UK blackout rule (Football Association Premier League)
University of Leiden - Europa Institute
Premier League fans in Europe worse off after Murphy judgment* When the European Court of Justice (CJ) delivered its judgment in joined cases FA Premier League v QC Leisure and others (C-403/08) and Karen Murphy v Media Protection Services (C-429/08) (Murphy), it was deemed a radical (...)

The EU Court of Justice issues its preliminary ruling holding that restricting the sale of European foreign satellite decoder cards is “contrary to the freedom to provide services” (Football Association Premier League)
Max Findlay (London)
Little, large and not proven* The big story for British sports fans has been the recent ruling by the Court of Justice of the European Union (ECJ) in the FA Premier League / Karen Murphy case. Effectively, the ECJ has said that British viewers can buy live English Premier League football (...)

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)
,
Ashurst (Frankfurt)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 14 June 2011, the European Court of Justice (ECJ) handed down a key judgment regarding the interplay between national leniency programmes and the right of (...)

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

A Belgian Court seeks guidance from EU Court of Justice in determining damages in a lift cartel case (Kone / Otis / Schindle / ThyssenKrupp)
Van Bael & Bellis (Brussels)
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 French Civil Supreme Court refers a question to the EU Court of Justice for a preliminary ruling on the required criteria for quantitative selective distribution (Auto 24 / Jaguar Land Rover France)
Vogel & Vogel (Paris)
The question of the criteria required for quantitative selective distribution continues to create intense debate in the case law in France. There are two opposing schools of opinion on the question both from legal commentators and in the case law: The first school argues that the European (...)

The EU Court of Justice Advocate General Kokott considers that territorial exclusivity agreements relating to transmission of live football matches are contrary to EU law (Football Association Premier League)
Wiggin (London)
I. Background The Football Association Premier League (“FAPL”) is the governing body of English Premier League football. Every year FAPL organises a competition in which 20 member clubs play against each other. FAPL is authorised by its members to license broadcasters to provide audiovisual (...)

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

The English High Court refuses to make a reference to the CJEU concerning the circumstances in which an court can make a declaration of non-liability for breach of Art. 101 TFEU where a company is the subject of an ongoing European Commission investigation (Conex Banninger / European Commission)
DG COMP (Brussels)
The English High Court (Floyd J) refuses to make a reference to the Court of Justice of the European Union (‘ECJ’) concerning the circumstances in which an English court can make a declaration of non-liability for breach of Article 101 TFEU where a company is the subject of an ongoing European (...)

The Irish Supreme Court provides observations on the conditions contained in Art. 101(3) TFEU and remits the appeal to the High Court for fuller consideration (Beef Industry Development Society & Anor)
Arthur Cox (Dublin)
Competition Authority v Beef Industry Developments Society Limited & Anor concerns a rationalisation agreement in the beef processing sector in Ireland. In 1998 a report (the McKinsey Report) found that there existed significant and substantial over-capacity in the beef industry and that (...)

The Paris Court of Appeal makes a reference for a preliminary ruling to the ECJ on whether a general and absolute ban on Internet sales by approved distributors does constitute a “hardcore restriction” on competition by object within the meaning of Art. 81.1 EC (Pierre Fabre Dermo-Cosmétique)
Norton Rose Fulbright (Paris)
In a judgment dated 29 October 2009, the French Court of Appeal made a reference for a preliminary ruling under article 234 of the Treaty establishing the European Community (the “EC Treaty”), whereby the ECJ was asked to answer “the question whether a general and absolute ban on Internet sales to (...)

The EU Court of Justice clarifies the notion of concerted practice and holds that a single meeting amongst competitors where they exchanged sensitive information can be caught by EU Antitrust rules (T-Mobile Netherlands)
Bird & Bird (Brussels)
Concerted practices, greyhounds, swans and alcoholmeters* Adam Smith wrote in the Wealth of Nations that “two greyhounds, in running down the same hare, have sometimes the appearance of acting in some sort of concert. Each turns her towards his companion, or endeavours to intercept her when his (...)

The EU Court of Justice rules on the capacity of reduction agreements in an Irish beef case (Beef Industry Development Society / Barry Brothers)
Van Bael & Bellis (Brussels)
On 20 November 2008, in a ruling on a preliminary reference from the Irish Supreme Court, the European Court of Justice (ECJ) found that the object of an agreement between Irish beef processors designed to reduce overcapacity in the sector was anti-competitive. In its ruling, the ECJ followed (...)

The ECJ Advocate General Sharpston issues opinion on the repackaging of parallel-traded pharmaceuticals (The Wellcome Foundation)
Van Bael & Bellis (Brussels)
On 9 October 2008, Advocate General Sharpston issued her opinion in Case C-276/05 (The Wellcome Foundation Ltdv Paranova Pharmazeutika Handels), a preliminary reference to the European Court of Justice (“ECJ”) from the Austrian Supreme Court. These proceedings add yet another episode to the (...)

The EU Court of Justice confirms previous case-law on agency agreements (CESPA)
Van Bael & Bellis (Brussels)
On 11 September 2008, the European Court of Justice (“ECJ”) gave its ruling in a preliminary reference made by a Spanish court in the context of a contractual dispute which arose between CEPSA, a supplier of fuel and related products, and Tobar, a petrol station. It appears that in 1996 CEPSA (...)

The ECJ Advocate General Trstenjak delivers opinion in Irish beef case (Beef Industry Development and Barry Brothers)
Van Bael & Bellis (Brussels)
On 4 September 2008, Advocate General Trstenjak gave her opinion on a preliminary reference from the Irish Supreme Court to the European Court of Justice (ECJ) concerning a case between the Irish Competition Authority, on the one hand, and the Beef Industry Development Society Ltd (BIDS) and (...)

The High Court of England and Wales refers questions to the ECJ regarding whether the prohibition on the use of foreign satellite decoder equipment and cards in the UK infringes, inter alia, Art. 81 EC (Football Association Premier League / QC Leisure)
DG COMP (Brussels)
In two separate cases involving the same claimant, the High Court of England and Wales has referred questions to the European Court of Justice regarding whether the prohibition on the use of foreign satellite decoder equipment and cards in the UK infringes, inter alia, Article 81 EC. (...)

The Czech Regional Court in Brno cancels the decision of the President of the Office for the Protection of Competition concerning a well-known, long-running international cartel operating within the sector of gas insulated switchgears on the grounds of breaching the legal principle of ne bis in idem (GIS Cartel)
Weinhold Legal (Prague)
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CMS Cameron McKenna (Prague)
I. Introduction On 26 June 2008, the Regional Court in Brno cancelled the decision of the President of the Czech Office for the Protection of Competition (the „Office«) concerning a well-known, long-running international cartel operating within the sector of gas insulated switchgears («GIS»). (...)

The EU Court of Justice finds Italian legislation on lawyers’ fees in conformity with EC competition rules (Hospital Consulting and Others)
Van Bael & Bellis (Brussels)
In an order issued on 5 May 2008, the European Court of Justice (ECJ) ruled that the Italian legislation precluding national judges assessing the legal costs payable by an unsuccessful litigant from derogating from a fixed scale of legal fees, approved by a ministerial decree on the basis of a (...)

The EU Court of Justice rules against a claim by Belgian dentists on a prohibition on advertising (Doulamis)
Van Bael & Bellis (Brussels)
On 13 March 2008, the European Court of Justice (ECJ) ruled on a preliminary reference made by the Brussels Court of First Instance by finding that a Belgian law that prohibits dental services providers from advertising does not violate the EC competition rules. The Brussels court made the (...)

A Dutch Court makes a reference for a preliminary ruling to the ECJ concerning the application of Art. 81.1 EC to concerted practice between mobile phone operators (KPN Mobile)
European Commission - DG HR (Brussels)
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European Court of Justice (Luxembourg)
In December 2002, the Dutch Competition Authority (hereafter the ‘NMa’) imposed fines upon five Dutch mobile phone companies for breach of Article 6 of the Dutch Competition Act (a provision equivalent to Article 81 (1) EC). The NMa found that those mobile phone operators exchanged confidential (...)

The Slovak Competition Authority fines an international cartel while granting leniency (GIS cartel)
Havel, Holasek (Brno)
I. Relevant facts In the following decision, the Slovak Antimonopoly Office stated that the agreement between competitors restricted competition. The competitors coordinated their behaviour by pricing, dividing the markets, maintaining market shares, and limiting themselves in contracting, and (...)

A Portuguese Court upholds Competition Authority decision that imposed a fine to an association for price fixing, but reduces the amount of the fine by considering the association turnover as relevant in place of the associates’ turnover (Veterinarian Medical Association)
European Court of Justice (Luxembourg)
On 5 July 2007, the Lisbon Court of Appeals upheld the Lisbon Court of Comerce ruling which confirmed the Competition Authority (“PCA”) decision imposing a fine of € 75,935.00 (seventy-five thousand nine hundred and thirty-five euros) on the Veterinarian Medical Association (“VMA”) for price (...)

The Spanish Supreme Court declares that the “atypical agency agreements” between oil companies and Spanish petrol stations come within the scope of Art. 81.1 EC and national mirror provision, after having requested ECJ preliminary ruling (CEEES / CEPSA)
European Court of Justice (Luxembourg)
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Garrigues (Brussels)
On 4 May 1995, the Spanish Confederation of Service Station Businesses (“CEEES” in its Spanish initials) filed a complaint with the Servicio de Defensa de la Competencia (Lowest branch of the Spanish competition authority), against certain oil companies, including CEPSA. The CEEES complained that (...)

The Irish Supreme Court refers a preliminary question to the ECJ on the validity of the rationalisation programme of a crisis cartel (Beef Industry Development Society - BIDS)
London School of Economics
Background to the dispute All key players in the Irish Beef Industry benefited from support in the form of intervention pricing, private storage aid and export refunds under the Common Agricultural Policy (CAP) following Ireland’s accession to the then EEC. Following the structural reform of (...)

The Latvian Courts and NCA find out that trade between member States is not affected by an international supply agreement and refuse to ask for a preliminary ruling to the ECJ (Kempmayer Media)
Loze, Grunte & Cers
Facts On 7 June 2004, the Latvian Competition Council declared that an agreement signed on 14 November 2002 between Kempmayer Media Ltd. (a company of England and Wales) and a/s Digitlais Latvijas radio un televzijas centrs (a company of Latvia) restricted competition and thus declared the (...)

The German federal Court of justice finds, after referring the case to the ECJ for preliminary ruling, that formerly block exempted motor vehicle distribution agreements contain hardcore restrictions under the new EC Reg. 1400/2002 (“Kfz-Vertragshändler II”)
Hengeler Mueller (Dusseldorf)
I. Background The contractual relationship between the German car manufacturer BMW and its authorized car dealers is based on a formal dealer agreement. In respect of the termination of the contract, a 12 months’ instead of a 24 months’ notice applies if BMW sees the necessity to reorganise the (...)

The Brussels Court of Appeal issues a preliminary ruling on the successive application of Art. 81.3 EC to vertical agreements and concerted practices and rules on the De minimis doctrine (Emond / Brasserie Haacht)
Sheppard, Mullin, Richter & Hampton (Brussels)
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Notre Europe
This is a judgment of the Brussels Court of Appeal responding to a request for a preliminary ruling from the Court d’appel de Liège ("Court of Appeal of Liège"), on the application of Article 81 EC and vertical block exemption regulations to a beer supply agreement setting up an exclusive (...)

The Spanish Supreme Court requests a preliminary ruling to an exchange of information agreement between financial institutions in relation to clients solvency and compliance (Asnef-Equifax)
Sheppard, Mullin, Richter & Hampton (Brussels)
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Eli Lilly (Madrid)
This Order has been adopted by the Tribunal Supremo (“TS”) in the appeal lodged against a judgment of the Audiencia Nacional (“AN”) which decided on the appeal against a decision adopted by the Tribunal de Defensa de la Competencia (“TDC”) granting an individual exemption to an agreement on (...)

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 (...)

Dominance

The Brussels Court of Appeal asks the EU Commission to provide advice and information regarding the tariffs for concerts and music festivals of a copyright collecting society (SABAM)
Simmons & Simmons (Brussels)
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Simmons & Simmons (Brussels)
On 10 May 2019, by interim judgment, the Brussels Court of Appeal asked the European Commission to provide advice and information regarding the tariffs for concerts and music festivals of SABAM – the Belgian copyright collecting society – in light of the prohibition to abuse a dominant position (...)

The Antwerp Enterprise Court refers request for a preliminary ruling to the EU Court of Justice in excessive pricing case between festival organisers (SABAM / BVBA / Wecandance)
Van Bael & Bellis (Brussels)
On 10 May 2019, the Antwerp Enterprise Court (the “Court”) referred a request for a preliminary ruling to the Court of Justice of the European Union (the “ECJ”) in two separate cases between Belgian festival organisers Weareone. World BVBA (the organisers of Tomorrowland) and Wecandance NV (the (...)

The EU Court of Justice clarifies the concept of a "competitive disadvantage" arising from discriminatory pricing by a dominant undertaking on a downstream market (MEO / Serviços de Communicações e multimedia)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Paris)
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McDermott Will & Emery (Brussels)
The CJEU held that a finding of a “competitive disadvantage” as the result of discriminatory pricing by a dominant undertaking on a downstream market does not require demonstration of an actual and quantifiable deterioration of a customer’s competitive situation on that market. This notion (...)

The EU Court of Justice provides new guidance on price discrimination by dominant market players (MEO / Autoridade da Concorrencia)
Jones Day (Brussels)
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Jones Day (Amsterdam)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. In April 2018, the CJEU provided guidance in assessing the validity of discriminatory pricing practices under EU rules governing dominant market players, in a (...)

The EU Court of Justice clarifies how to assess whether a practice of differential pricing by a dominant undertaking is capable of distorting competition on a downstream market (MEO / Serviços de Comunicações e Multimédia)
Arendt & Medernach (Luxembourg)
Facts This preliminary ruling arose following a complaint lodged with the Portuguese Competition Authority by Serviços de Comunicações e Multimédia SA (“MEO”) alleging that GDA, a non-profit-making collecting cooperative which manages the rights of artists and performers, had abused its dominant (...)

The EU Court of Justice rules on requirements to establish price discrimination by a dominant undertaking (MEO – Serviços de Comunicações e Multimédia)
Van Bael & Bellis (Brussels)
On 19 April 2018, the Court of Justice of the European Union (the “ECJ”) delivered a judgment holding that investigations of price discrimination under EU competition law should involve an examination of all the relevant circumstances of the case in order to assess whether there is a “competitive (...)

The EU Court of Justice AG Mengozzi takes a new look at the exhaustion of trademark rights and seems prepared to accept the erosion of such rights (Schweppes)
Van Bael & Bellis (Brussels)
On 12 September 2017, Advocate General Mengozzi (“AG”) delivered an opinion in the Schweppes case in the context of a request for a preliminary ruling to the Court of Justice of the European Union (“ECJ”) from a Spanish Court. In particular, the AG proposed to develop the case-law on the exhaustion (...)

The EU Court of Justice accepts an alternative to the United Brands test to establish excessive pricing (AKKA / LAA)
Desogus Law Office (Cagliari)
On replying to the preliminary questions referred by the Supreme Court of Latvia (SCL), in AKKA v LAA the CJEU has accepted a methodology other than the two-limb United Brands test to establish an excessive pricing practice. The CJEU also clarifies the criteria to set the amount of the fine (...)

The EU Court of Justice AG Wahl offers guidance on the criteria to identify excessive prices in abuse of dominance case (AKKA / LAA)
Van Bael & Bellis (Brussels)
On 6 April 2016, Advocate General (“AG”) Wahl gave an opinion advising the European Court of Justice (“ECJ”) on the criteria to determine whether a Latvian royalty collecting society had abused its dominant position by charging excessive prices in breach of Article 102(a) TFEU. The matter came (...)

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 EU Court of Justice publishes details of a request by a Portuguese Court for a preliminary ruling regarding discriminatory pricing (Serviços de Comunicações e Multimédia)
Van Bael & Bellis (Brussels)
On 16 January 2017, details of a request by a Portuguese court for a preliminary ruling from the Court of Justice of the European Union (“ECJ”) were published in the Official Journal on questions relating to abusive discriminatory pricing under Article 102(c) TFEU. The request was issued in (...)

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)
Covington & Burling (Brussels)
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Linklaters (Brussels)
I. The Parties Post Danmark S/A is a Danish undertaking that provides postal services in Denmark. The undertaking provides postal services and applies uniform tariffs throughout Danish national territory. At the time of the main proceedings, in 2007 and 2008, Post Danmark was controlled by the (...)

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)
,
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 EU Court of Justice rules on the circumstances in which a presumptively dominant SEP holder who has given a FRAND commitment may seek injunctive relief (Huawei / ZTE)
Quinn Emanuel Urquhart & Sullivan (Brussels)
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Quinn Emanuel Urquhart & Sullivan (Brussels)
The application of competition law to standard essential patents (SEPs) has been the subject of significant debate. The latest instalment was provided by the Court of Justice on 16 July 2015 with its much-anticipated preliminary ruling in Huawei v. ZTE, which concerns the circumstances in which (...)

The EU Court of Justice confirms practical steps to be taken by standard essential patent holders before seeking injunctions (Huawei / ZTE)
Norton Rose Fulbright (London)
Synopsis The Court of Justice of the European Union has ruled that the holder of a Standard Essential Patent that has committed to license its Standard Essential Patent on FRAND terms may be found in breach of the competition rules (Article 102 TFEU) by seeking an injunction against a (...)

The EU Court of Justice rules on the seeking of injunctions in the context of standard-essential patents encumbered by FRAND in the technology sector (Huawei / ZTE)
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
THE EUROPEAN UNION’S HIGHEST COURT RULES ON STANDARD-ESSENTIAL PATENTS INJUNCTIONS AND ABUSE OF DOMINANCE* The long-awaited ruling on the seeking of injunctions in the context of standard-essential patents encumbered by fair, reasonable, and non-discriminatory (FRAND) terms has been delivered (...)

The EU Court of Justice holds standard-essential patent owner can abuse its position by seeking to enjoin infringement and sets out specific requirements (Huawei / ZTE)
Allen & Overy (London)
This article has been nominated for the 2016 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Background A Scattered European Landscape There is considerable inconsistency as to the availability of injunctive relief in relation to FRAND-obligated SEPs in (...)

The EU Court of Justice sets out specific requirements with which a SEP holder needs to comply to be able to seek an injunction without abusing its dominant position (Huawei / ZTE)
A patent is an exclusive right granted to an inventor for disclosing to the public an innovative technical solution. It does not necessarily oblige the patent owner to exploit that invention. Rather, it provides the right to exclude others from making, using, selling, offering for sale, or (...)

The EU Court of Justice holds standard-essential patent owner can abuse its position by seeking to enjoin infringement (Huawei / ZTE)
Constantine Cannon (Washington)
European Court Of Justice Holds Standard-Essential Patent Owner Can Abuse Its Position By Seeking To Enjoin Infringement* The European Court of Justice ruled today that the owner of a standard-essential patent abuses its dominant position when it seeks an injunction in an action for patent (...)

The Swedish Court of Appeal endorses the EU Court of Justice’s finding of abuse of dominance in margin squeeze case (TeliaSonera)
Mircea & Partners (Bucharest)
I. Introduction On the 17 of February 2011 the Court of Justice of the European Union released its preliminary ruling in Case C-52/09 Konkurrensverket v TeliaSonera. At the origin of this litigation we could find an application for summons issued by Konkurrensverket on 21 December 2004. After (...)

The German Regional Court of Düsseldorf refers to a preliminary ruling to the CJEU on standard-essential patents (Huawei / ZTE)
Ashurst (Milan)
German Court makes reference for a preliminary ruling to the CJEU on standard-essential patents* On 21 March 2013, the Landgericht Düsseldorf (“Düsseldorf Regional Court”) made a reference (the order is only available in German) for a preliminary ruling to the Court of Justice of the European (...)

The EU Court of Justice endorses an effects-based approach on the assessment of low pricing policy under Article 102 TFEU (Post Danmark)
University of Amsterdam
Post Danmark: does the ECJ take the effects based approach further than a mere price/cost-test and does it oblige the national judge to apply that effects based approach ex nunc?* In a grand chamber judgment in case C‑209/10, Post Danmark, the European Court of Justice (ECJ) handed down a (...)

The Austrian Supreme Court of Justice brings a preliminary ruling before the ECJ on the application of Article 102 TFEU to the Austrian commercial register (Compass)
Saxinger Chalupsky & Partners (Brussels)
The Compass group (“Compass”), a private provider of business information, runs a database of all Austrian businesses registered in the Austrian commercial register, for which end users have to pay. Besides the information available in the Austrian commercial register, which is run by the (...)

The EU Court of Justice clarifies powers of Competition Authorities enforcing EU competition rules under EC Reg. 1/2003 in a telecom case (Tele2 Polska)
European Commission (Brussels)
European Courts: ECJ clarifies Powers of National Competition Authorities enforcing EU Competition Rules* On 3 May 2011, the Court of Justice of the European Union gave judgment in the Tele2 Polska case concerning the interpretation of Article 5 of Council Regulation (EC) 1/2003. The Court (...)

The EU Court of Justice holds a preliminary ruling in a margin squeeze case in the telecommunications sector (TeliaSonera)
Latam Airlines (Las Condes)
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DG CNECT (Brussels)
The opinions expressed in this article are the personal views of the individual authors and do not necessarily represent the views of the employers of the authors. Warm thanks are expressed to Dilip Roy, Ben Harries and Simon Maunder for their contribution to this paper. Background Until the (...)

The Swedish Competition Authority welcomes the EU Court of Justice preliminary ruling on "margin squeeze" as a stand-alone antitrust abuse in the telecom sector (TeliaSonera)
European Commission (Brussels)
Sweden: The Competition Authority welcomes ECJ Judgment on Competition in the Telecom Sector* The Swedish Competition Authority (the Authority) welcomes the Judgment of the European Court of Justice (ECJ) of 17 February 2011 in the case C-52/09, Konkurrensverket against TeliaSonera Sverige AB. (...)

The EU Court of Justice issues a preliminary ruling in a case concerning price squeeze abuses providing clear guidance on this issue (TeliaSonera)
Jones Day (Brussels)
,
Jones Day (Brussels)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On 17 February 2011, the European Union Court of Justice ("CJ") issued a preliminary ruling in an ongoing case concerning price squeeze abuses. Questions were (...)

The EU Court of Justice holds a decision on margin squeezes in the telecommunications sector addressing the issue of indispensability (TeliaSonera)
Cleary Gottlieb Steen & Hamilton (Brussels)
How Indispensable Is Indispensability?* In its recent TeliaSonera judgment, the Court of Justice discusses whether a margin squeeze can only be abusive if the dominant company has a duty to supply the input at issue. The Court concludes that a duty to supply is not needed. The judgment, (...)

The EU Court of Justice clarifies the scope of the law about pricing practices of vertically integrated companies in the telecommunications sector (TeliaSonera)
McDermott Will & Emery (Brussels)
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Siemens (Brussels)
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Jones Day (Brussels)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 17 February 2011, the European Court of Justice (ECJ) – on a reference for a preliminary ruling by the Stockholm District Court (SDC) – clarified, (...)

The Danish Supreme Court refers to questions concerning discriminatory pricing to the European Court of Justice (Post Danmark)
European Commission (Brussels)
Denmark: The Supreme Court refers Questions concerning Discriminatory Pricing to the ECJ On 27 April 2010, the Danish Supreme Court referred to the ECJ two questions concerning discriminatory pricing in the Post Danmark case. The questions relate to abuse of dominant position on the market for (...)

The Polish Supreme Court requests preliminary ruling from the EU Court of Justice on the interpretation of Article 5 of Regulation 1/2003 (Tele2 Polska)
European University Institute (Florence)
The parallel application of European and national competition rules by the President of the Polish Office of Competition and Consumer Protection (UOKiK) in the proceedings concerning allegedly anticompetitive conduct of Telekomunikacja Polska and the question about the limitations to national (...)

The EU Court of Justice rules again on repackaging in parallel-traded pharmaceuticals (The Wellcome Foundation)
Van Bael & Bellis (Brussels)
On 22 December 2008, the European Court of Justice (“ECJ”) gave judgment in a reference for a preliminary ruling from the Austrian Supreme Court regarding the rules governing the repackaging of parallel-traded pharmaceuticals (The Wellcome Foundation Ltdv. Paranova Pharmazeutika Handels GmbH). (...)

The EU Court of Justice gives favourable ruling on collective copyright remuneration model (Kanal 5 and TV 4)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 11 December 2008, the ECJ handed down a judgment in which it responded to four questions referred to it by the Swedish Market Court. The questions arose in a dispute between the Swedish copyright collecting society STIM and two commercial TV channels, TV 4 and Kanal 5 (the “TV channels”). The (...)

The EU Court of Justice Advocate General Trstenjak delivers opinion on remuneration model applied by a Swedish copyright collecting society (Kanal 5 / TV 4 / STIM)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 11 September 2008, Advocate General Trstenjak delivered her opinion on four questions referred to the ECJ by the Swedish Market Court. The questions arose in a dispute between two commercial TV channels, TV 4 and Kanal 5 (the “TV channels”) and the Swedish copyright collecting society Stim. (...)

The European Court of Justice issues a preliminary ruling on the organisation of motorcycle events in Greece (MOTOE)
Van Bael & Bellis (Brussels)
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Practising Law Institute (New York)
On 1 July 2008, the European Court of Justice issued a preliminary ruling in a case involving a challenge to the activities of ELPA, which has responsibility for organising motorcycle events in Greece and also in entering into sponsorship, advertising and insurance contracts. The Court of (...)

The Swedish Market Court makes a preliminary reference to the EU Court of Justice on copyright management by collecting societies (Kanal 5 / TV 4 / STIM)
General Court of the European Union (Luxembourg)
Introduction Since Sweden joined the European Union in 1995, the Swedish courts have been reluctant to make preliminary references to the European Court of Justice (“ECJ”) in all fields of law. Up until 2006, the Swedish courts had made on average 5 preliminary references per year, in (...)

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. (...)

Mergers

The EU Commission opens an in-depth investigation concerning a merger in the market of music recognition for smartphones, tablets and PCs (Apple / Shazam)
DG COMP (Brussels)
MERGERS: COMMISSIONS OPEN IN-DEPTH INVESTIGATION INTO APPLE’S PROPOSED ACQUISITION OF SHAZAM* The European Commission has opened an in-depth investigation to assess the proposed acquisition of Shazam by Apple under the EU Merger Regulation. The Commission is concerned that the merger could (...)

The EU Court of Justice decides EU merger control rules can only apply to joint control transactions if the resulting entity is a ‘full-function’ joint venture (Austria Asphalt)
Shearman & Sterling (London)
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Shearman & Sterling (London)
On September 7, 2017, the European Court of Justice (ECJ) decided that, where joint control is acquired over a new or existing undertaking (or parts of an undertaking), that transaction can only fall within the scope of the EU Merger Regulation (EUMR) where the resulting entity will be (...)

The Danish Maritime and Commercial Court requests the EU Court of Justice to provide guidance on gun-jumping test (Ernst & Young / KPMG)
Szecskay Attorneys at Law
CJEU requested to provide guidance on gun-jumping test* With Post Danmark I and II under their belts, it seems Danish courts are punching above their weight when it comes to contributing to the CJEU’s development of EU competition law through preliminary rulings. Yet another interesting (...)

State Aids

The EU Court of Justice rules on a preliminary ruling request regarding the Hungarian turnover taxes in the telecoms sector (Vodafone / Tesco / Google)
College of Europe (Bruges)
* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice clarifies the conditions in which a legal person liable to pay a tax can plead its incompatibility with the EU State aid rules before a national court (Vodafone Magyarország Mobil)
Van Bael & Bellis (Brussels)
On 3 March 2020, the Grand Chamber of the Court of Justice (the “ECJ”) delivered another judgment in the field of taxation and State aid (Vodafone Magyarország Mobil Távközlési Zrt., C-75/18). While this judgment does not substantially develop the case law in this field, it contains useful (...)

The EU Court of Justice confirms that a company does not necessarily insulate from State aid if it enjoys exclusive rights and operates in a sector covered by a legal monopoly (Arriva Italia)
College of Europe (Bruges)
* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice provides a preliminary ruling relating to a dispute between several electricity and hydroelectricity producers concerning a tax on the use of inland waters for the production of electricity (UNESA)
College of Europe (Bruges)
* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice provides further guidance on the selectivity assessment of environmental taxes in the framework of autonomous communities (UNESA)
Van Bael & Bellis (Brussels)
On 7 November 2019, the Court of Justice of the European Union (the “ECJ”) delivered a judgment on a request for a preliminary ruling by the Spanish Supreme Court. The request was made in proceedings between several hydroelectricity producers and the Spanish authorities, with regard to the (...)

The EU Court of Justice rules, upon request for a preliminary ruling, whether the Lithuanian scheme for the provision of public interest services in the electricity sector and of its financing scheme must be regarded as State aid (Achema / Orlen Lietuva / Lifosa / VKEKK)
DG ENERGY (Luxembourg)
The judgment of the Court of 15 May 2019 in case C-706/17, delivered upon a request for a preliminary ruling from the Supreme Administrative Court of Lithuania (“Achema”), replicates the analysis which was previously established in Association Vent de Colère!. The judgment in Achema thus follows (...)

The EU Court of Justice provides guidance on the assessment of violations of free movement of capital in relation to State aid scheme (A-Fonds)
Van Bael & Bellis (Brussels)
On 2 May 2019, the Court of Justice of the EU (“ECJ”) delivered a judgment on a request for a preliminary ruling by the Dutch Court of Appeal of ’s-Hertogenbosch. The request was made in proceedings between A-Fonds, an investment undertaking governed by German law, and the Dutch tax (...)

The French State Council concludes that three taxes assigned to an undertaking in the audiovisual and multimedia sector cannot be regarded as an integral part of an aid scheme on the basis that they represent a growing share of revenue which is not considered as having directly influenced the amount of aid granted (National Center for Cinema & Moving Image)
France Télévisions
The junction between the financing of cinema and audiovisual media and State aid law is at the origin of a case which, initially supposed to revolve around the notion of "alteration to existing aid", has come, after a contentious detour, to clarify what constitutes a tax measure hypothecated to (...)

The EU Court of Justice provides guidance on the duty of recovery in case of non-compliance with Block Exemption Regulation (Eesti Pagar)
Van Bael & Bellis (Brussels)
On 5 March 2019, the Court of Justice of the European Union (the “ECJ”) delivered a judgment on a request for preliminary ruling by the Court of Appeal of Tallinn, Estonia, concerning a dispute on certain State aid granted by the Estonian authorities to Eesti Pagar, an Estonian bakery founded in (...)

The EU Court of Justice clarifies the concept of "existing aid" in a private enforcement case and holds that unlawful aid cannot be retroactively legalised by virtue of a limitation period that has lapsed (Fallimento Traghetti del Mediterraneo)
Willkie Farr & Gallagher (Paris)
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Willkie Farr & Gallagher (Brussels)
On January 23, 2019, the European Court of Justice (hereinafter the “Court” or the “ECJ”) handed down a preliminary ruling on the notion of “existing aid”. The Court held, in particular, that the circumstance where a new aid that becomes existing aid by virtue of the 10 years limitation period has (...)

The EU Court of Justice clarifies application of the selectivity criterion to State aid (Anged)
Van Bael & Bellis (Brussels)
On 26 April 2018, the Court of Justice of the European Union (“ECJ”) issued judgments on three requests for preliminary rulings from the Spanish Supreme Court regarding the qualification as state aid of regional taxes on large retail establishments situated in the territories of Catalonia (Case (...)

The EU Court of Justice rules that Polish renewable energy support scheme does not involve state resources (ENEA)
Van Bael & Bellis (Brussels)
On 13 September 2017, the Court of Justice of the European Union ( “ECJ”) issued its judgment on a request for a preliminary ruling from the Polish Supreme Court regarding the qualification of a national renewable energy support scheme as state aid (Case C-329/15, ENEA S.A. v Prezes Urzędu (...)

The EU Court of Justice finds that a Polish purchase obligation measure in the electricity sector does not involve state resources (ENEA)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice finds that the eligibility of a State aid applicant and the legality of the aid are determined at the point when the aid is granted (Nerea)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice rules that a Member State could not request reimbursement of an aid that had been granted to an undertaking in compliance with the General Block Exemption Regulation (Nerea)
Jones Day (Brussels)
In Short The Situation: On July 6, 2017, the European Court of Justice ruled that a Member State could not request reimbursement of aid that had been granted to an undertaking in compliance with the General Block Exemption Regulation solely because that undertaking later became the subject of (...)

The EU Court of Justice finds that the transfer of public assets between state owned companies for the purpose of extinguishing a debt may constitute State aid (Fondul Proprietatea / Complexul Energetic Oltenia)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice rules on the compatibility with State aid rules of Ministerial Orders setting out the feed-in tariffs of electricity produced by power plants using solar radiative energy (Enedis / Axa)
White & Case (Paris)
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Commission de Régulation de l’Energie (Paris)
The European Court of Justice rules on the compatibility with the European State aid rules of the Ministerial Orders of 10 July 2006 and of 12 January 2010 setting out the feed-in tariffs of electricity produced by power plants using solar radiative energy. By an order dated 15 March 2017, the (...)

The EU Court of Justice rules on the application of State aid rules in national court proeedings and the principle of res judicata (Klausner Holz Niedersachsen GmbH / Land Nordrhein Westfalen)
Van Bael & Bellis (Brussels)
On 12 November 2015, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Münster Regional Court in case C-505/14, Klausner Holz Niedersachsen GmbH v Land Nordrhein Westfalen. The case concerns the application of the EU state (...)

The EU Court of Justice rules on the application of State aid rules in national court proceedings and the principle of res judicata (Klausner Holz Niedersachsen GmbH / Land Nordrhein Westfalen)
Van Bael & Bellis (Brussels)
On 12 November 2015, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Münster Regional Court in case C-505/14, Klausner Holz Niedersachsen GmbH v Land Nordrhein Westfalen. The case concerns the application of the EU state (...)

The EU Court of Justice rules on how to determine a market price, blurring the lines of its own case law (BVVG / Landkreis Jerichower Land in Germany)
College of Europe (Bruges)
The Challenge of Calculating a Market Price* The market price of land or buildings can be determined via auction, expert valuation or other appropriate methods. Introduction On 16 July 2015, the Court of Justice delivered its judgment in case C‑39/14, BVVG Bodenverwertungs- und -verwaltungs (...)

The EU Court of Justice explains that measures that impose additional charges for the purpose of maintaining equality between operators do not necessarily qualify as State aid (Kernkraftwerke Lippe-Ems / Hauptzollamt Osnabrück)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice reminds that a new State guarantee must be notified, and when it is not, its beneficiaries do not have remedies under EU Law (OTP Bank Nyrt / Magyar Állam)
European University Institute (Florence)
*Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice renders preliminary ruling on the notion of “linked enterprises” in relation to a dispute on the calculation of the amount of an investment subsidy (HaTeFo)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog SMEs Linked through Natural Persons Two or more enterprises may constitute a single undertaking when their owners and/or managers are related in a way that they can act jointly to exercise influence over the decision of those enterprises. (...)

The Court of Justice of the EU rules that under article 4(3) TEU a national court must take into account the Commission’s statements of position on the meaning and consequences of a Commission Decision (Mediaset)
Blackstone Chambers (London)
“What’s in a Commission Decision?” and other lessons for national courts* In a decision of 13 February 2014, the Court of Justice of the European Union (“CJEU”) added a little gloss to an otherwise well-trodden path in relation to the binding aspects of a Commission Decision. For instance, it is (...)

The EU Court of Justice rules on questions referred by an Italian tribunal regarding the recovery of state aid from an Italian telecom company (Mediaset SpA / Ministero dello Sviluppo Economico)
Justinian Lawyers Belgium (Brussels)
I. Facts On 24 January 2007, the Commission adopted the decision 2007/374 which stated that the scheme of aid applied to digital terrestrial broadcasters offering pay-TV services and cable pay-TV operators in Italy was incompatible with the internal market. Following the adoption of that (...)

The EU Court of Justice rules that a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price is imputable to the state (Association Vent De Colère / Ministre de l’Écologie)
University of Bristol - Law School
CJEU follows AG Jääskinen in revisiting PreussenElektra and minimising Doux Elevages’ requirements for State imputability of aid measures (C-262/12)* In its Judgment of 19 December 2013 in case C-262/12 Vent De Colère and Others, the Court of Justice of the EU has largely followed AG Jääskinen’s (...)

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

The EU Court of Justice interprets the concept of intervention through state resources and finds that the offset of additional costs arising from the obligation to purchase green electricity constituted state intervention (Vent de Colère)
College of Europe (Bruges)
Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The EU Court of Justice rules on the matter of non-notified state aid subject to a formal examination procedure initiated by the Commission and the measures to be adopted by the national courts hearing an application for cessation or recovery (Deutsche Lufthansa / Flughafen Frankfurt-Hahn)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Non-notified State Aid and the Role of National Courts [C 284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn]* Introduction What prevents a Member State from granting State aid without first notifying it to the European Commission? Cynics would (...)

The EU Court of Justice Advocate General Mengozzi clarifies the role of national courts in case of simultaneous state aid investigation by the Commission (Lufthansa, Frankfurt airport, Ryanair)
Van Bael & Bellis (Brussels)
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AbbVie (Chicago)
On 27 June 2013, Advocate General Mengozzi rendered an opinion clarifying the role of national courts in case of simultaneous state aid investigation by the European Commission (the “Commission”). The case stems from a dispute between Lufthansa and the Frankfurt airport regarding the (...)

The EU Court of Justice rules on the interpretation of the Commission’s decision concerning regional existing regional aid schemes for processing and marketing of German agricultural products (Magdeburger)
DLA Piper Weiss-Tessbach (Vienna)
This decision by the Court of Justice concerns the interpretation of Article 2 of Commission Decision 1999/183/EC of 20 May 1998 regarding State aid granted on the basis of existing regional aid schemes for processing and marketing of German agricultural products. The preliminary reference has (...)

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

The European Court of Justice rules on two state aids in the books distribution sector holding that their twenty-year duration is not an “exceptional situation” under European law (CELF, SIDE)
Cleary Gottlieb Steen & Hamilton (Brussels)
Court of Justice: A twenty-year duration of a State aid case does not amount to an “exceptional situation” under the State aid rules.* On March 11, 2010, the Court of Justice of the European Union (the “ECJ”) rendered a judgment (preliminary ruling) in response to two State aid questions referred (...)

The French State Council orders stay in proceedings regarding the recovery of unlawful aid in the CELF case and refer to the ECJ the question of the extent of the national courts’ obligation in such "exceptional circumstances" (CELF II)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Court of Justice (Luxembourg)
Factual background CELF is a cooperative society in public limited company form and operates as an export agent. It aims to process orders from abroad and from the French overseas territories and departments for books, brochures and any communication media and, more generally, to perform (...)

The Belgian Supreme Court applies the ruling of the EU Court of Justice and holds that the tax on slaughterhouses does not constitutes unlawful State aid as it is part of an aid scheme declared compatible (Slachthuis Swaegers)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Court of Justice (Luxembourg)
Factual Background Under the Belgian Animal Health Act 1987 (the “1987 Act”), compulsory charges were levied on slaughterhouses. These charges were subsequently used to finance animal welfare measures that improve the hygiene, health and quality of life of animals. This scheme had, however, (...)

The Italian Supreme Court refers for preliminary ruling to the EU Court of Justice the question of whether Italian tax relief measures for cooperative societies constitute State aid within Art. 87 EC (Famiglia Coop Agricola Carli Albino)
EUJUS Law Firm (Rome)
Factual background Under Italian tax rules, cooperative societies benefit from significant fiscal reliefs. The ability to benefit from the reliefs is dependant upon the not-for-profit nature of the activity performed by the cooperative. Similarly to tax purposes, the not-for-profit nature is (...)

The Portuguese Supreme Administrative Court receives preliminary ruling from the EU Court of Justice on State aid case in public transport field (Antrop)
New University of Lisboa - Faculty of Law
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University of Coimbra - Faculty of Law
Brief description of the facts and legal issues Parties: The applicant: Associação Nacional de Transportadores Rodoviários de Pesados de Passageiros (hereinafter referred to as "Antrop") and Others; The defendant: Conselho de Ministros, Companhia Carris de Ferro de Lisboa SA ("Carris"), (...)

The French Administrative Court of Appeal of Lyon rules that a claim questioning the validity of a EU Commission’s decision not to raise objection against alleged State aid measures, raised serious difficulties requiring a preliminary ruling (Régie Networks)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Court of Justice (Luxembourg)
Factual Background Régie Networks, an undertaking selling advertising space for the NRJ Group’s local radio stations, paid EUR 152 524 by way of parafiscal charge levied on advertisements broadcast on radio and television in 2001. It claimed reimbursement of that sum from the local tax (...)

The Spanish Supreme Court brings a preliminary question before the ECJ on State aid issue relating to obligatory investments for the financing in advance of European and Spanish cinematographic and TV films (Unión de Televisiones Comerciales Asociadas)
Hogan Lovells (Madrid)
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Allianz (Brussels)
Factual Background: An appeal before the Supreme Court by the Union of Associated Commercial Televisions ("UACT") against Royal Decree 1652/2004 on obligatory investments for the financing in advance of European and Spanish cinematographic and TV films ("Royal Decree 1652/2004") on the grounds (...)

The European Court of Justice rules that pharmaceutical laboratories liable to a tax on direct sales of medicines are entitled to claim the reimbursement of the tax where the exemption of wholesale distributors constitute an illegal State aid (Boiron)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
Opinion of Advocate General Antonio Tizzano, 30 March 2006 EU Court of Justice, Laboratoires Boiron, Case C-526/04, 7 September 2006 In a preliminary ruling requested by the French Civil Supreme Court in the Boiron case, the ECJ rules that pharmaceutical laboratories liable to a tax on direct (...)

The French Council of State refers to the ECJ for preliminary ruling on the extent of the recovery obligation of an unlawful aid later declared compatible by the Commission (CELF I)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Court of Justice (Luxembourg)
Factual background CELF is a cooperative society in public limited company form and carries on the activity of export agent. Its aims are to process directly orders for abroad and the French overseas territories and departments for books, brochures and any communication media and, more (...)

The French Administrative Supreme Court confirms that subsidies granted for orders of French-language books are State aid, but refers for a preliminary ruling a question concerning the extent of the recovery of unnotified aid (CELF I)
Schmitt Avocats (Paris)
By a decision of 5 October 2004, the Administrative Court of Appeal of Paris classified as a State aid the subsidies granted by the French State to the Centre d’Exportation du Livre Français (“CELF”), entity created at the end of the 70’s to contribute to the diffusion of French-language books (...)

The Italian Supreme Court holds that a cooperative societies’ tax break should be qualified as a State aid because it involves a lower tax income into the public budget and refers the case to the ECJ for a preliminary ruling (Maricoltori Alto Adriatico)
EUJUS Law Firm (Rome)
Factual background Under Italian tax rules, cooperative societies benefit from significant tax exemptions. After an inspection of the Italian tax policy, the local tax office of Monfalcone decided that Mr. F.M.’s individual income tax return, for the years 1984, 1985 and 1986, was inaccurate. (...)

The French Social Security Court seeks ECJ preliminary reference on whether tax financing retirement benefits amounted to State aid (Casino)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Commission (Brussels)
Brief description of the facts and legal issues The claimant and other parties brought an action for reimbursement of certain social security contributions for retiring craftsmen and traders, from ORGANIC which they had paid during the period from 2000 to 2002. The claimant requested the (...)

The French Council of State makes preliminary reference to ECJ to confirm its interpretation of GEMO State aid ruling (Doux)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Court of Justice (Luxembourg)
Brief description of the facts and legal issues The claimant requested the Conseil d’Etat to annul an order ("arrêté") of the Ministry of the Economy, which laid down the method of calculation and rates of slaughter tax, allocated to the financing of the elimination of animal waste and (...)

The French Administrative Courts apply the ECJ’s preliminary ruling qualifying a tax on meat purchases as a State aid (GEMO / Nevers viandes / Lianoudis / Sobledis / Uni service Distribution / Honfleur / Picard surgelés)
European Court of Justice (Luxembourg)
Despite the efforts of public authorities in order to inform citizens about the importance of fruits and vegetables for health, Europeans and especially French, remain attached to the taste and proteins brought by meat. Like every industrial activity, the meat industry produces waste that has (...)

The French Supreme Court refers to the ECJ for a preliminary ruling concerning (i) the repayment of a mandatory contribution based on the turnover of pharmaceutical laboratories and (ii) national rules of procedure leading to State aid classification (Laboratoires Boiron)
Schmitt Avocats (Paris)
By decision of 14 December 2004, the French Cour de Cassation referred to the European Court of Justice (ECJ) for a preliminary ruling concerning the classification as state aid of the contribution instituted by Article L. 245-6-1 of the Social Security Code and the way to obtain its (...)

The French Civil Supreme Court requested a preliminary ruling from the ECJ with regards to the implementation of the Ferring case law : Advocate General Tizzano supports the reimbursement of the tax on direct sales paid by French pharmaceutical laboratories (Boiron / ACOSS)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
Background Law n° 97-1164, of 19 December 1997, on social security funding for 1998 set up a special 2.5 % tax payable only by pharmaceutical laboratories on sales of medicines made directly to pharmacies. Proceeds from the tax were aimed at financing the social security system. However, (...)

The French Supreme Court refers questions to the EU Court of Justice relating to social security exemptions for French laboratories (Laboratoires Boiron)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Commission (Brussels)
Brief description of the facts and legal issues A laboratory filed an action for the refund of a Sociàl Security contribution arguing that this contribution was unlawful State aid, because certain laboratories were exempt. Referring to the Banks case (Joined Cases C-390/98, Banks & Co v (...)

The French Supreme Court refers to the ECJ for a preliminary ruling concerning the qualification as State aid of the French mutual assistance tax for the benefit of traders and craftsmen (Magasins Galeries Lafayette)
Schmitt Avocats (Paris)
By decision of 16 November 2004, the French Supreme Court, the Cour de Cassation, referred to the ECJ for a preliminary ruling, under Article 234 EC, concerning the classification as state aid of the French mutual assistance tax for the benefit of traders and craftsmen (the Tax). This Tax, (...)

The French Tribunal in charge of social security cases applies to the EU Court of Justice for a preliminary ruling on whether a tax exemption can be considered not State aid but a mere compensation of public service costs (Ferring)
CRDEI - Centre de Recherche et de Documentation Européennes et Internationales (Bordeaux)
The important case law of the ECJ often finds its origin in a preliminary question raised by national judges of first instance (e. g. ECJ, April 30th, 1986, Asjes a. o., Joined Cases 209/84 209/84, 210/84, 211/84, 212/84, 213/84 and 213/84, [1986] ECR 1425, “Nouvelles Frontières”, preliminary (...)

The Social Security Court makes preliminary reference on the application of Article 87 EC to a tax advantage to medical undertakings performing a public service (Ferring)
Sheppard, Mullin, Richter & Hampton (Brussels)
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European Commission (Brussels)
Brief description of the facts and legal issues The Social Security Court of Créteil requested a preliminary ruling from the ECJ on a tax advantage enjoyed by undertakings entrusted with the operation of a public service, such as wholesale distributors supplying medicines to pharmacies. In a (...)

The French Administrative Supreme Court refers to the ECJ for preliminary ruling a case on tax deduction that is limited to expenditure for research carried out in the State of taxation (Baxter)
University Aix-Marseille
Three pharmaceuticals companies engaged an action for the annulment of a State ordinance which established emergency measures aiming at the re-establishment of the balance of social security consisting in exceptional contributions to be paid by pharmaceuticals companies. One of these (...)

The French Supreme Administrative Court implements the ECJ "Saumon" ruling while limiting the time-period of annulment of the un-notified aid (Saumon)
University Aix-Marseille
The Fédération nationale du commerce extérieur des produits alimentaires and the Syndicat national des négociateurs et transformateurs de saumon brought an action against the interministerial order of 15 april 1985 implementing decree n° 84-1297 of 31 december 1984 imposing parafiscal charges for (...)

Procedures

The EU Court of Justice clarifies the eligibility requirements of claims for indirect damages caused by a violation of Art. 101 TFEU (Otis / Land Oberösterreich)
University of Liège
The parties Otis GmbH, is an Austria based manufacturer and provider of maintenance services for elevators and escalators. Taken over in 1969, they are now a subsidiary of the American Otis Elevator Company Corp. Schindler (Schindler Liegenschaftsverwaltung GmbH and Schindler Aufzüge und (...)

The EU Court of Justice holds that national rules on limitation of antitrust damages claims may violate the principle of effectiveness (Cogeco)
Sérvulo & Associados (Lisbon)
The first preliminary ruling on Directive 2014/104/EU: Case 637/17 Cogeco* Introduction With two major decisions, March 2019 was an interesting month with regard to the Court of Justice’s (also ‘ECJ’) case-law on private enforcement of competition law: Skanska (C-724/17) and Cogeco (C-637/17). (...)

The EU Court of Justice rules on the scope of a national limitation period in light of the Damages Directive (Sport TV / Cogeco)
Van Bael & Bellis (Brussels)
On 28 March 2019, the Court of Justice of the European Union (“ECJ”) ruled on a preliminary reference from a Portuguese court on the scope of the Portuguese limitation period in light of Directive 2014/104 on certain rules governing actions for damages under national law for infringements of the (...)

The EU Court of Justice holds that national rules on limitation of antitrust damages claims may violate the principle of effectiveness (Cogeco)
Hogan Lovells (Munich)
,
Hogan Lovells (Munich)
The European Court of Justice in Cogeco rejects a direct effect of the Damages Directive in the pre-implementation phase, but establishes that the principle of effectiveness may itself render national rules on limitation of antitrust damages claims ineffective. The European Court of Justice (...)

The EU Court of Justice Advocate General Juliane Kokott recommends that the EU Damages Directive not apply to proceedings that begun in a Member State before the transposition of the Directive (Cogeco / Sport TV Portugal)
Gomez Acebo & Pombo (Brussels)
,
Gomez Acebo & Pombo (Brussels)
,
Gomez Acebo & Pombo (Brussels)
Following the decision of the Portuguese Competition Authority finding that Sport TV had engaged in an abuse of dominance between 2006 and 2011, in February 2015, Cogeco, a Canadian cable company, brought an action for damages against Sport TV Portugal . Cogeco claimed that the EU Damages (...)

The EU Court of Justice clarifies jurisdiction in tortious claims and claims relating to acts of branches, which arise from competition infringements (Flylal-Lithuanian Airlines)
McDermott Will & Emery (Brussels)
,
McDermott Will & Emery (Paris)
,
McDermott Will & Emery (Brussels)
On 5 July 2018, the CJEU handed down a judgment in response to a request for a preliminary ruling from the Lithuanian Court of Appeal in which it provided welcome clarifications of the interpretation of Articles 5(3) and 5(5) of Regulation No 44/2001 (Brussels I Regulation). These articles (...)

The EU Court of Justice clarifies territorial jurisdiction criteria for damages proceedings resulting from competition infringements (FlyLAL)
Van Bael & Bellis (Brussels)
On 5 July 2018, the Court of Justice of the European Union (ECJ) rendered a preliminary ruling on territorial jurisdiction in a long-running dispute brought by Lithuanian Airlines (“flyLAL”) against Air Baltic and Riga Airport. The case was referred to the ECJ by a Lithuanian court in order to (...)

The EU Court of Justice receives the first preliminary ruling request on the applicability of the EU Damages Directive (Cogeco / Sport TV Portugal)
Gomez Acebo & Pombo (Brussels)
,
Gomez Acebo & Pombo (Brussels)
,
Gomez Acebo & Pombo (Brussels)
A Portuguese court (Tribunal Judicial da Comarca de Lisboa) has referred the first preliminary ruling request on Directive 2014/104 ("the EU Damages Directive") to the Court of Justice of the EU. The reference of the case is C-637/17. The main question referred by the Portuguese court aims at (...)

The EU Court of Justice rules the prohibition on selling at a loss laid down by Spanish legislation relating to retail commerce contrary to EU law (Europamur Alimentación)
CMS Albiñana y Suárez de Lezo (Madrid)
In the context of a preliminary ruling, the European Court of Justice (“ECJ”) concluded, through judgement of 19 October 2017 (Case C-295/16, Europamur Alimentación, S.A.), that the prohibition on selling at a loss (or sale at a loss) stated in Article 14 of Law 7/1996, regulating retail commerce (...)

The German Regional Court of Berlin refers the extradition of an Italian citizen from Germany to the United States for cartel charges to the EU Court of Justice to rule on whether Member State extradition can violate the principle of non-discrimination under EU law (Romano Pisciotti)
AkzoNobel (Brussels)
,
Hogan Lovells (Munich)
On 18 March 2016, the Regional Court of Berlin (RC Berlin) in Romano Pisciotti v. Federal Republic of Germany referred four questions to the European Court of Justice to seek guidance on whether Mr Pisciotti could argue that he had suffered discrimination and claim compensation from the German (...)

The German Regional Court of Berlin refers to questions on extradition discrimination to the EU Court of Justice in the case of the first business executive extradited to the USA on cartel charges (Romano Pisciotti)
McDermott Will & Emery (Brussels)
,
McDermott Will & Emery (Washington)
,
McDermott Will & Emery (Washington)
CJEU TO RULE ON EXTRADITION OF EU CITIZENS IN CRIMINAL ANTITRUST PROCEEDINGS The first European citizen to be extradited from Europe to the United States for criminal antitrust conduct recently succeeded in having a Berlin court refer the matter of his extradition to the Court of Justice of (...)

The EU Court of Justice establishes that national provisions on civil liability for loss caused by a cartel shall include compensation for loss resulting from price setting above the level expected in competitive conditions by a non-party to the cartel (Kone / ÖBB-Infrastruktur)
University of East Anglia (Norwich)
,
University of Bristol - Law School
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. When the CJEU opens the umbrella, lawyers and economists get ready for a warm shower of damages claims (C-557/12)* In its Judgment in Kone, C-557/12, (...)

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

The German Regional Court of Düsseldorf refers to the EU Court of Justice questions concerning the availability of remedies to holders of FRAND-pledged SEPs prevailing in patent infringement actions (Huawei / ZTE)
Jones Day (Dusseldorf)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Regional Court of Düsseldorf, Germany, has asked the Court of Justice of the European Union ("CJEU") to clarify a number of questions at the intersection of EU (...)

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

EU Court of Justice Advocate General Jääskinen concludes that the Austrian consent rule impedes access to justice by damages claimants and it is precluded by Union law (Donau Chemie)
Mircea & Partners (Bucharest)
I. Introduction The main pursuit of this article is to use the opportunity given by the present case in order to revisit the apparent dichotomy existent between private and public enforcement of competition law. My claim is that the two avenues must be seen as complementary rather than (...)

The European Court of Justice rules that the EU Commission can bring follow-on actions for damages on behalf of the EU in cartel cases (Otis)
Jones Day (Brussels)
,
McDermott Will & Emery (Paris)
,
McDermott Will & Emery (Washington)
EU Commission Can Bring Follow-On Actions for Damages on Behalf of the European Union in Cartel Cases* On 6 November 2012, the Court of Justice of the European Union (CJEU) ruled that the European Commission was entitled to represent the European Union in an action for damages before national (...)

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

The EU Court of Justice further defines the status of public authorities under EU competition law in commercial registry database case (Compass)
Van Bael & Bellis (Brussels)
In a preliminary ruling delivered on 12 July 2012, the Court of Justice of the EU ("ECJ") provided important guidance on the status, under EU competition law, of public authorities that maintain a commercial registry database of companies and that make data contained therein publicly (...)

The Austrian Cartel Court brings a preliminary ruling before the European Court of Justice on the question of access to cartel files by third parties adversely affected by a cartel (Printing chemical producers)
Saxinger Chalupsky & Partners (Brussels)
In 2010, several printing chemical producers were fined by the Austrian Cartel Court for their participation in a printing chemicals cartel in Austria. The investigation was initiated due to a leniency application by one of the cartel members. After the conclusion of the procedure, an (...)

The EU Court of Justice acknowledges the need to weigh the different interests at stake when granting access to documents containing leniency applications in the context of civil claims for damages, in line with US courts (Pfleiderer)
Callol, Coca & Asociados (Madrid)
The European Court of Justice has issued a Judgement (Decision of 14 June 2011, Pfleiderer, Case C-360/09) on a preliminary ruling from a national court, on a key matter regarding antitrust damages claims. The situation encountered by the national court, in essence, referred to a petition by a (...)

The EU Court of Justice rules that EU law does not exempt leniency documents lodged with national competition agencies from requests for disclosure in private actions (Pfleiderer)
Morgan Lewis (London)
,
Squire Patton Boggs (London)
On 14 June 2011, the European Court of Justice ("ECJ") ruled that EU law does not exempt leniency documents lodged with national competition agencies ("NCAs") from requests for disclosure in private actions. In a reference for preliminary ruling from a German court, Pfleiderer v (...)

The EU Court of Justice adopts a preliminary ruling in a telecom case depriving Competition Authorities of the power to take negative decisions while enforcing competition rules under EU Reg. 1/2003 (Tele2 Polska)
European University Institute (Florence)
The Perverse Effects of the Court’s Ruling in Tele2 Polska* In its recent Tele2 Polska ruling, the Court deprived the National Competition Authorities "NCAs" of the ability to take "negative decisions" (C-375/09, Prezes Urzędu Ochrony Konkurencji i Konsumentów contre Tele2 Polska sp. z o.o., 3 (...)

The EU Court of Justice rules that a National Competition Authority cannot adopt a decision ruling Articles 101 and 102 TFEU inapplicable (Tele2 Polska)
Vogel & Vogel (Paris)
The number-one Polish telecom operator – former State owned monopoly - was suspected of a violation of Article 8 of the Polish law on competition and consumer protection and of Article 102 of the Treaty on the Functioning of the European Union (TFEU). At the end of the procedure the Polish (...)

The European Court of Justice declines jurisdiction to rule on preliminary reference from a national TV regulator (RTL Belgium)
Van Bael & Bellis (Brussels)
On 22 December 2010, the European Court of Justice (“ECJ”) declined jurisdiction to answer a question for a preliminary ruling referred by the Licensing and Control Authority (Collège d’autorisation et de contrôle) of the Belgian French-speaking Broadcasting Authority (Conseil supérieur de (...)

The European Court of Justice rules on the right of national competition authorities to participate in appeals against their own decisions (VEBIC)
Van Bael & Bellis (Brussels)
In a judgment of 7 December 2010, the European Court of Justice (“ECJ”) adopted a preliminary ruling relating to the right of a national competition authority to participate in appeals before a judicial court against its own decisions. The preliminary questions were raised by the Brussels Court (...)

The ECJ Advocate General Mazák finds that NCAs have no competence to acquit companies of infringements (Tele2 Polska)
Van Bael & Bellis (Brussels)
,
Practising Law Institute (New York)
On 7 December 2010, European Court of Justice (“ECJ”) Advocate General (“AG”) Jan Mazák published his opinion in Tele 2 Polska, advising the Court to rule that national competition authorities (“NCAs”) should not be entitled to declare certain practices compatible with Articles 101 or 102 of the (...)

The Amsterdam Court of Appeal holds, after having heard the EU Commission’s submissions provided as amicus curiae on the basis of Art. 15.3 Reg. 1/2003, that fines imposed by the EU Commission for breach of competition rules are not deductible from taxable profits (X B.V. Belanghebbende / Inspecteur Belastingdienst)
European Commission - DG HR (Brussels)
,
European Court of Justice (Luxembourg)
The present judgement from the Gerechtshof Amsterdam (the Court of appeal of Amsterdam) follows the preliminary ruling issued by the European Court of Justice on 11 June 2009 in case C-429/07, Inspecteur van Belastingdienst v. X BV. The case at hand relates to a dispute between company X and (...)

The Local Court of Bonn asks the ECJ for clarification on the relationship between acces to the file for claimants and leniency (Pfleiderer)
European Commission (Brussels)
Germany: Access to the File for Claimants vs. Leniency - Local Court of Bonn asks ECJ for Clarification In a cartel case which was based inter alia on Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union), a customer applied for access to the file (...)

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

A Belgian Court makes preliminary reference to the ECJ regarding compatibility of Belgian procedural rules with EC regulation 1/2003 (VEBIC)
Sheppard, Mullin, Richter & Hampton (Brussels)
,
Adyen (Amsterdam)
,
European Court of Justice (Luxembourg)
Introduction On 30 September 2008, the Brussels Court of Appeal made a preliminary reference to the European Court of Justice (“ECJ”) relating to the compatibility of the Belgian procedural rules governing appeal cases with EC Regulation (EC) n° 1/2003 on the implementation of the rules on (...)

The Brussels Court of Appeal refers several preliminary questions to the ECJ on the involvement of a NCA in appeal proceedings (VEBIC)
Arendt & Medernach (Luxembourg)
,
NautaDutilh (Luxembourg)
Facts of the case 1. On 25 January 2008, the Belgian Competition Council (Conseil de la concurrence) has condemned VEBIC, a professional association of Flemish bakeries, for having established a common cost index inciting Flemish bakeries to increase their prices in violation with the national (...)

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

The Polish Supreme Court sheds light on the notion of the Court of last instance under the Polish law in the light of Art. 234.3 EC (Polish telecommunications regulator)
European University Institute (Florence)
In September 2005 the President of the URTiP (the predecessor of the UKE, the Polish telecommunications regulator) issued a resolution, wherein it declared the market for access and call origination in the public mobile networks not to be efficiently competitive. One of the operators active on (...)

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

An Italian Court awards to a consumer damages amounting to twofold the loss suffered as a result of a cartel among insurance companies after obtaining an ECJ preliminary ruling (Manfredi)
Shearman & Sterling (Rome)
The decision is the final step of the same Manfredi case (ECJ, July 13th, 2006, Manfredi, Joined Cases C-295/04 C-295/04, C-296/04, C-297/04 and C-298/04, [2006] ECR I-6619) which prompted, after Courage (ECJ, September 20th, 2001, Courage and Crehan, Case C-453/99, [2001] ECR I-6297), a (...)

The European Court of Justice renders a preliminary ruling under article 234 EC considering issues raised in the European Commission’s Green Paper on antitrust damages actions (Manfredi)
DG COMP (Brussels)
,
DG COMP (Brussels)
"The Manfredi judgment of the ECJ and how it relates to the Commission’s initiative on EC antitrust damages actions"* The reactions to the Green Paper On 20th December 2005, the Commission published a Green Paper on damages actions for breach of the EC antitrust rules. The Green Paper has been (...)

The EU Court of Justice rules that the Greek Competition Authority is not a “court or tribunal” in the meaning of Art. 234 EC and therefore can not apply for an ECJ preliminary ruling (Syfait / GlaxoSmithKline)
White & Case (Brussels)
On 31 May 2005 the European Court of Justice (ECJ) delivered its judgment in Case C-53/03, Syfait and others v. GlaxoSmithKline AEVE and GlaxoSmithKline plc (“Syfait”), which raises the question of whether a dominant pharmaceutical undertaking is under a duty to supply unlimited quantities of (...)

The Hungarian Supreme Court refuses to apply EU law to cases started before Hungary’s accession to the EU (HCM)
Oppenheim (Budapest)
,
Oppenheim (Budapest)
,
Oppenheim (Budapest)
Under the applicable provisions of Hungarian law it is (i) the parties to the administrative procedure (in this case the parties in the proceedings initiated by the HCO) or (ii) those whose rights or legal interests are directly affected by the case who are entitled to request the judicial (...)

The Queen’s Bench Division of the High Court of England & Wales refers to the ECJ on the fact for parties to an agreement to use allegations of breach of competition law to avoid honouring their obligations under a commercial contract (SUNAG)
Reed Smith (London)
This was a commercial private arbitration case which ended up before the English High Court, Queen Bench Division (Case C-339/95), and was referred to the European Court of Justice for a preliminary ruling. A unanimous arbitration award to enforce the agreement was appealed in the commercial (...)

The EU Court of Justice rules that the creation of a single agency grouping sector regulators and the competition authority breaches EU law
Callol, Coca & Asociados (Madrid)
The European Court of Justice (ECJ) rules that the creation of the current SCA breached EU law (ECJ Judgment of 19 October 2016 (Case C-424/15)). The ECJ has issued its ruling on a request by the Supreme Court regarding the compatibility of the SCA creation back in 2013, when Spain integrated (...)

Regulations

The EU Court of Justice holds in response to a request for a preliminary ruling by the Netherlands that the definition of "service" in the Services Directive includes retail trade in goods (X BV)
Lemstra Van der Korst (Amsterdam)
,
Jones Day (Amsterdam)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On January 30, 2018, the European Court of Justice ("ECJ") rendered a judgment with far­ reaching consequences for the European retail trade (ECLI:NL:C:2018:44). (...)

The UK High Court of Justice rules that an auction website cannot be held responsible for fake products sold through its web site and refers to the ECJ for some other key issues (L’Oréal / eBay)
EDHEC (Lille)
Is eBay primarily and/or jointly liable for trademark infringements committed by some of its users selling counterfeit items through the auction website? Does the online auctioneer itself commit infringements by using luxury brands as advertising keywords, in order to promote its online (...)

Public sector

The EU Court of Justice declares that a scheme of compulsory minimum tariffs for certification services addressed to tenderers in a public procurement procedure is not illegal per se under the EU competition and free movement rules (SOA Nazionale Costruttori)
University of Bristol - Law School
CJEU rubber stamps Italian minimum tariffs for certification in public procurement, subject to proportionality (C-327/12)* In its Judgment of 12 December 2013 in case C-327/12 Soa Nazionale Costruttori, the Court of Justice of the EU has followed rather closely AG Cruz Villalon’s Opinion (...)

The AG Villalón of the CJEU finds that a tariff calculation formula that automatically multiplies the rate payable for the certification activities according to the number of tenders is precluded by EU law (SOA Nazionale Costruttori)
University of Bristol - Law School
AG Cruz Villalon opposes Italian minimum #tariffs for #public procurement #certification (C-327/12)* In his Opinion of 5 September 2013 in case C-327/12 Soa Nazionale Costruttori (not available in English), AG Cruz Villalon analyses the compatibility with EU free movement (ie freedom of (...)

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

The EU Court of Justice reaffirms its dictum on in-house providing as an exception to the applicability of the EU public procurement directives (Econord / Varese)
University of Bristol - Law School
In-house providing and (minimum) "effective" public control: Sunset or breaking dawn for purely public (commercial) service providers? (C‑182 and 183/11)* In its Judgment of 29 November 2012 in Joined Cases C‑182/11 and C‑183/11, Econord SpA v Comune di Cagno and Comune di Varese (C-182/11) and (...)

The EU Court of Justice leaves for the referring court to determine whether the procured material could be regarded as specially designed and developed for military purposes in order to decide on compliance with the duty to organize a tender procedure (Insinööritoimisto InsTiimi)
ClientEarth (Bruxelles)
Procuring military equipment under the public procurement directive* As one of the last bastions of purely national competence, trade in arms is excluded from the application of the Treaty rules. Article 346 TFEU provides that the Treaties do not preclude Member States to trade and procure war (...)

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