We each began professional life as advocates, zealous in our support of the causes upon which we were engaged. Each of us had the huge good fortune to work on big cases with good teachers, giants of the bar, and then the even huger fortune to work in professional maturity with skilled colleagues before robust judges and tough-minded officials. One of us had a practice which involved more big (...)
Due Process Research Program
Unilateral Practices
The EU General Court annuls the Commission’s decision to fine a Bulgarian gas supplier for abuse of dominance by refusing access to strategic gas infrastructures in the country (Bulgarian Energy Holding)
In its Bulgargaz judgment of 25 October 2023, the General Court annulled a 2018 Commission decision finding that the Bulgarian BEH Group – comprised of the State-owned Bulgarian Energy Holding (“BEH”) and its two subsidiaries, the public gas supplier Bulgargaz and the gas transmission network (...)
The EU General Court annuls the Commission Decision which fined a State-owned energy holding company for abusing its dominant position by refusing access to strategic gas infrastructures in Bulgaria (Bulgarian Energy Holding)
The General Court annuls the Commission Decision according to which the BEH Group abused its dominant position by refusing access to strategic gas infrastructures in Bulgaria*
At the time of the facts, Bulgarian Energy Holding (BEH), a company wholly owned by the Bulgarian State, had several (...)
The French Competition Authority notifies its objections to a Big Tech company concerning its practices in the distribution of mobile apps sector (Apple)
Advertising on iOS mobile applications: the General Rapporteur confirms having notified the Apple group of an objection*
The General Rapporteur of the Autorité de la concurrence has confirmed that an objection has been notified to the Apple group, concerning practices in the distribution of (...)
The EU General Court annuls in its entirety the Commission’s decision to fine a chipmaker €1B for exclusivity payments to a smartphone manufacturer on the grounds that the economic analysis was unsubstantiated and procedural errors undermined the rights of the defence (Qualcomm)
On 15 June 2022, the General Court of the European Union (“GC”) upheld all of Qualcomm’s arguments and therefore annulled the decision of the European Commission (“Commission”) fining Qualcomm € 1 billion for abuse of dominant position on the Long-Term Evolution (“LTE”) chipsets market. In (...)
The EU Commission confirms unannounced inspections in the German natural gas sector
On 29 March 2022, the European Commission carried out unannounced inspections at the premises of several companies in Germany active in the supply, transmission and storage of natural gas.
The Commission has concerns that the inspected companies may have violated EU competition rules that (...)
The EU Commission carries out unannounced inspections at the premises of a pharmaceutical company active in animal health in Belgium due to suspected abuse of dominance
Antitrust: Commission carries out unannounced inspections in the animal health sector in Belgium*
The European Commission is conducting unannounced inspections at the premises of a pharmaceutical company active in animal health in Belgium.
The Commission has concerns that the inspected (...)
The Italian Council of State refers to the EU Court of Justice questions concerning the interpretation and application of Art. 102 TFEU following an abuse of dominance in the electricity market (Enel)
On 20 July, the Italian Supreme Administrative Court (Consiglio di Stato, CDS) referred to the Court of Justice (CJ) several questions concerning the interpretation and application of Article 102 TFEU.
In the context of the dispute following the Italian Competition Authority’s decision to (...)
The Italian Supreme Administrative Court rejects an appeal lodged by a multinational drug company against a previous decision asserting it as having abused its dominant position by imposing unfair prices for drugs (Aspen)
On 13 March, the Italian Supreme Administrative Court ("Consiglio di Stato") rejected the appeal lodged by the multinational Aspen Group against the decision of the Regional Administrative Court of Lazio (“TAR”), which fully upheld the decision adopted by the Italian Competition Authority (...)
The Portuguese Competition Authority issues a statement of objections to a company for abuse of dominance to the detriment of consumers in the electricity market (EDP Produção)
AdC issues Statement of Objections to EDP Produção for abuse of dominance to the detriment of consumers*
The Portuguese Competition Authority (Autoridade da Concorrência – AdC) issued a Statement of Objections against EDP – Gestão da Produção de Energia, S.A. (EDP Produção) for abuse of (...)
The EU Court of Justice revisits forty years of case law on when a dominant company’s rebate scheme may be abusive (Intel)
In its ruling on the European Commission’s 500 page Intel decision, in a crisp 150 paragraphs, the EU Court of Justice (the Court) revisited forty years of jurisprudence on when a dominant company’s rebate scheme may be abusive. Though no final decision for Intel, the case marks a potentially (...)
The Paris Court of Appeal denies a utility company’s request for information regarding rival’s settlement with the French Competition Authority (ENGIE / Direct Energie)
The settlement procedure in France
The major change is that parties willing to conclude a settlement procedure will be informed of the minimum and maximum fine that may be imposed (and not of a percentage of reduction relating an amount of sanction which is not yet known).
The disclosure (...)
The Brazilian Competition Authority issues two legal opinions in investigations related to sham litigation practices (Eli Lilly do Brasil)
On August 20, 2014, the General Superintendence of the Administrative Council for Economic Defense (“CADE”) rendered two legal opinions in investigations related to sham litigation practices recommending to CADE’s Tribunal: (i) the conviction of the companies Eli Lilly do Brasil Ltda. and Eli (...)
The EU General Court upholds the Commission’s decision in consideration of two exclusionary practices on the market for the supply of CPUs, opening the door to a further appeal to the Court of Justice and a possible application before the ECtHR (Intel)
Could Intel challenge its 1bn Euro fine on grounds of ’corporate human rights’*
After last week’s General Court Judgment in Intel v Commission, T-286/09, EU:T:2014:475, the 2 month period for Intel to appeal the confirmation of its 1bn Euro fine before the Court of Justice of the EU on (...)
The UK Competition Authority decides it has no grounds to take further action against fuel card operator over alleged abuse of dominance (CH Jones)
The facts CH Jones is a subsidiary of Fleetcor Inc and in the course of its practice it issues fuel cards under its ‘Keyfuels’ brand. The latter are payment cards to access diesel on the road and are often used by firms with a fleet of large goods vehicles. CH Jones’ customers purchase diesel (...)
The Swiss Supreme Court upholds fines against media sales and marketing services group in an abuse of dominance case (Publigroupe)
In a much awaited decision, the Swiss Supreme Court dismissed an appeal directed against the decision of the Swiss Federal Administrative Tribunal confirming a fine of CHF 2.5 million (approximately € 2 million) imposed by the Swiss Competition Commission ("Comco") on Publigroupe for abuse of (...)
The England & Wales High Court grants an interim injunction against the use by private hire vehicles of bus lanes marked for taxis (Transport for London)
Taxi wars in London – does EU law have a role to play?*
On Thursday of last week the High Court granted Transport for London (TfL) an interim injunction relating to the high-profile raising of the stakes in its battle with Addison Lee (AL), the largest “private hire” (ie minicab) operator (...)
The EFTA Court sanctions for abuse of dominant position a company active in the market for business-to-consumer parcel services with over-the-counter delivery, thus addressing the issue of judicial review (Posten Norge)
A lesson on judicial review from the other European Court in Luxembourg*
Legal change sometimes takes unpredictable paths: mid-April, something important happened for European law in Luxembourg, but this did not come from the European Court of Justice (the “ECJ”). Not every reader of this (...)
The Spanish Supreme Court rules that isolated conduct in the daily energy market constitutes a continuous abuse of dominance (Iberdola Generación)
I. The Spanish generation market
As has been described in previous bulletin articles the Spanish generation market is extremely complex and heavily intervened by burdensome regulation. In a nutshell, tenders (pools) are organised every hour of the day by a public entity in order to fulfil (...)
The US Senate Committee on the Judiciary, Subcommittee on Antitrust conducts hearings in an abuse of dominance investigation on the web search industry (Google)
Google Antitrust Hearing: 5 Takeaways*
While yesterday’s Senate antitrust hearing on Google practices may have been more about spectacle than action, it was an opportunity to gain insights into the mindset of Google and the government officials that may seek to intervene in their operations. (...)
The US Court of Appeals for the Seventh Circuit rules that the campaign of a hospital holding to block a potential rival does not violate s. 2 of the Sherman Act and is protected from antitrust liability under the Noerr-Pennington doctrine (Mercatus Group / Lake Forest Hospital)
First Amendment Rights Provide Antitrust Shield for Successful Petitioning to Block Potential Rival*
How far can a competitor go in an effort to convince a local government to block a potential rival from setting up shop in its area without running afoul of the antitrust laws?
Last week, (...)
The Lisbon Court of Commerce quashes the Competition Authority’s first-ever abuse of dominant position infringement decision in the underground ducts’ telecom network access case, upheld on appeal (PT Comunicações)
I. The case, the PCA’s decision and the judgments
After receiving complaints from telecom undertakings “TvTel Comunicações” and “Cabovisão”, the Portuguese Competition Authority (hereinafter “PCA”) launched an investigation in 2003 into the allegations that Portugal Telecom Comunicações (...)
The EU Commission sends statements of objection following a complaint lodged by several associations representing investors against financial service company (Standard & Poor’s)
Commission sends statement of Objections to Standard & Poor’s*
On 16 November 2009 the Commission sent a Statement of Objections (“SO”) to Standard & Poor’s (“S&P”), a division of McGraw-Hill Companies, Inc. The SO follows a complaint lodged by several associations representing (...)
The Latvian Supreme Court upholds the Competition Authority’s decision on abuse of dominance in the telecommunication sector (Lattelecom)
Supreme Court Upholds the Decision on Abuse of Dominant Position by Telecommunication Company*
With the decision of 5 May 2009 the Senator Collegium of the Department of Administrative Cases of the Senate of the Supreme Court has dismissed legal proceedings concerning the 17 July 2002 (...)
The EU General Court upholds Commission’s decision against a maritime company (Compagnie Maritime Belge)
On 1 July 2008, the Court of First Instance (“CFI”) issued its judgment on Compagnie Maritime Belge’s appeal of the Commission decision of 30 April 2004 (the “Decision”), which had fined it € 3.4 million for the infringements of Article 82 EC established in the Commission original decision of (...)
The EU Commission closes proceedings against US chipset manufacturer for alleged abuse of dominance in the mobile phone technology sector (Qualcomm)
"The Last Hundred Days Strategy"- Is the Qualcomm Case Over?*
Milton Friedman and his wife Rose Friedman are known for having theorized that recently elected governments generally enjoy a period of political immunity following elections, which allows them to push reforms, including tough (...)
The Spanish Competition Authority fines for the third time an electric utility for excessively high prices (Iberdrola Castellón)
The time has come for Spanish main utilities to carry out a serious competition law assessment before putting a price to the power they offer within the framework of the Spanish electricity market. Spanish antitrust authorities have fined for the third time in a row a major utility on grounds (...)
The England & Wales High Court gives important guidelines as to the standard of proof for claiming damages in competition cases (Arkin)
Arkin v. Borchard Lines Ltd., [2003] All E.R. (D) 173, [2003] EWHC 687 (Comm) (10 April 2003), is important as one of the first damages claims brought in a United Kingdom court for breach of Articles 81 and 82 of the Rome Treaty involving private enforcement of competition law. It was decided (...)
Rights of defence and competition law: An overview of EU and national case law
Decisions of the Commission are reviewable for their legality under Article 263 of the Treaty on the Functioning of the European Union (“TFEU”). It is not necessary to set out the full range of decisions that are capable of challenge under Article 263 TFEU, but they include (purely by way of (...)
Rights of Defence and competition law: An overview of EU and national case law
Ask a lawyer to name the most basic procedural right, he/she will likely reply: “the rights of defence”. To many lawyers, these rights appear – maybe even before access to justice – as the most immediate and natural guarantee in criminal or quasi-criminal proceedings. After all, before Adam (...)
Mergers
The EU General Court confirms the Commission may review a merger between two biotech companies even though the EU and national turnover thresholds are not reached (Illumina / Grail)
Yesterday, the General Court of the European Union came down on the side of the European Commission (the Commission ) in that agency’s dispute with genomics firm Illumina and held that the Commission has jurisdiction to examine Illumina’s acquisition of cancer detection test start-up Grail, (...)
The EU General Court rules that the Commission has the power to review a merger even though the turnover thresholds have not been triggered (Illumina / Grail)
In Illumina v Commission, the General Court has confirmed the authority of the European Commission (EC) under Article 22 EU Merger Regulation (EUMR) to examine a transaction that does not have a European dimension, but which is the subject of a referral request made by a Member State – even if (...)
The EU General Court dismisses a damages action for €1.74B brought by a courier delivery services company against the Commission for the losses and costs resulting from the annulment of a merger prohibition decision (UPS / TNT)
On 23 February 2022, the General Court dismissed UPS’s damages action for EUR 1.74 billion against the European Commission for the losses and costs resulting from the annulment of the UPS/TNT merger prohibition decision.
Key takeaways Annulment of a merger prohibition decision will not (...)
The EU General Court dismisses a €1.7B claim for damages brought by a courier delivery services company in which it sought compensation for losses resulting from the Commission’s decision to block a merger with its rival (UPS / TNT)
On 23 February 2022, the EU’s General Court (GC) dismissed a €1.7 billion claim for damages brought by United Parcel Service Inc. (UPS) against the European Commission (EC). UPS sought compensation for the losses resulting from the EC’s decision to block UPS’ merger with TNT NV (TNT). The GC, (...)
The French Administrative Supreme Court rejects an appeal by an employee representative body concerning a merger approval (Mondadori)
On 9 March 2021, the French Administrative Supreme Court (Conseil d’Etat) rejected an appeal by Mondadori’s social and economic committee ("SEC") in relation to the French Competition Authority’s ("FCA") decision to approve Reworld Media’s takeover of Mondadori France. The French (...)
The Italian Supreme Court reinstates remedies imposed by the Italian Competition Authority to mitigate the effects of the acquisition of certain assets of the digital terrestrial Pay-TV (Sky / R2)
On 28 May 2020, the Italian Administrative Supreme Court ("CoS") reinstated remedies imposed by the Italian Competition Authority ("ICA" or "Authority") to mitigate the effects of the acquisition by Sky Italia Holding S.p.A. ("Sky") of certain assets of the digital terrestrial Pay-TV owned by (...)
The EU Court of Justice dismisses the Commission’s appeal against the annulment of its decision to prohibit a merger in the parcel delivery market (UPS / TNT)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
EU Court confirms the need for transparency and full disclosure of economic analyses in EU merger cases (UPS/TNT)*
On 16 January 2019, the Court of Justice (...)
The EU Court of Justice rules the Commission violated the rights of the defence when it failed to share the final economic model used in its decision to block a merger (UPS / TNT)
In Short
The Development: The European Court of Justice ("ECJ") ruled that the European Commission ("Commission") violated UPS’s rights of defense when it failed to provide UPS with the final economic model used in its decision to block UPS’s proposed acquisition of TNT in 2013.
The (...)
The EU Court of Justice Advocate General Kokott issues an opinion supporting the rights of defence of merging parties (UPS / TNT)
On 25 July 2018, Advocate General (“AG”) Kokott issued an Opinion in which she concludes that the General Court (“GC”) was correct to annul the Commission’s 2013 decision to prohibit UPS’s acquisition of its package delivery rival, TNT Express.
In the decision, the Commission relied upon a (...)
The EU Commission clears the merger of semiconductor companies subject to interoperability and quasi-structural remedies designed to address conglomerate concerns (Qualcomm / NXP)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On 26 July 2018, US company Qualcomm Inc announced the abandonment of its proposed acquisition, through its subsidiary Qualcomm River Holding BV (Qualcomm), of (...)
The EU General Court annuls a Commission decision prohibiting a merger in the parcel delivery sector on due process grounds (UPS / TNT)
Background
On 15 June 2012, the global specialist transport and logistics provider United Parcel Services (“UPS”) notified the European Commission of its proposed acquisition of TNT Express NV (“TNT”) under the EU Merger Regulation. UPS and TNT are both active on international express small (...)
The Irish Competition Authority clears the first otherwise anticompetitive merger using the failing firm defense (Baxter / Fannin)
Introduction
1 On 21 October 2015 the Competition and Consumer Protection Commission (CCPC), Ireland’s competition agency, cleared the acquisition by Baxter Healthcare Limited (Baxter) of Fannin Compounding Limited (Fannin), a business division of Fannin Limited which was, in turn, a (...)
The Stockholm District Court authorises dawn raids based on documents disclosed during a merger review (Assa)
Stockholm District Court allowed the Swedish Competition Authority to carry out an unannounced inspection based on documents disclosed by the notifying party during a merger filing process.
Authority shuts the door on locks merger
The Swedish company ASSA AB (“ASSA”), part of the (...)
The Portuguese Competition, Regulation and Supervision Court annuls decision imposing a fine on a non-notified merger due to shortcomings related to rights of defence (ANF / Farminveste)
Following the Portuguese Competition Authority (PCA) decision dated 28 December 2012 imposing a total EUR 149,278.79 fine on the National Pharmacy Association (Associação Nacional de Farmácias - ANF) and two of its subsidiaries, Farminveste 3 – Gestão de Participações, S.G.P.S., Lda. (...)
The French Supreme Administrative Court upholds the Competition Authority’s decision sanctioning a food distributor for failing to notify a concentration (Colruyt)
On 24 June 2013, the French Supreme Administrative Court confirmed the French Competition Authority (“FCA”)‘s decision n°12-D-12 dated 11 May 2012 imposing a €392.000 fine on Etablissements Fr. Colruyt (“Ets Fr Colruyt”), the parent company of group Colruyt, for failing to comply with article (...)
The Finnish Parliament approves the Competition Act introducing amendments to both merger and antitrust rules
Finland: New Competition Act approved by the Parliament*
On 11 March 2011, the Finnish Parliament approved the new Finnish Competition Act. The Act will enter into force in autumn 2011. The main amendments are the following. One of the major changes brought by the new law relates to the (...)
The Serbian Competition Authority clarifies that if it does not issue individual merger decision within the specified timeframe, the notified merger should be considered prohibited (Delta M)
On 15 October 2009 DELTA M. d.o.o. (DELTA M) , Serbian company with operations in agribusiness, food processing, retail, distribution, automotive business, real estate development and financial brokerage applied to the Serbian Competition Authority (KZK) asking for clarification of the merger (...)
The EU General Court clarifies Commission’s duty of care and third parties’ right to be heard in merger control proceedings (NVV)
In a judgment of 7 May 2009, the Court of First Instance dismissed an appeal against the Commission’s decision unconditionally clearing the acquisition by Sovion of Hendrix Meat Group. The appellants (three interested third parties in the Commission’s Sovion/HMG proceedings) argued before the (...)
The German Federal Court of Justice confirms the prohibition of an energy merger considering that the national market for primary sales of electricity is dominated by a duopoly (E.ON / Stadtwerke Eschwege)
In a judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) upheld a previous decision of the Higher Regional Court of Düsseldorf (Higher Regional Court) which had itself confirmed a decision of the Federal Cartel Office (FCO) blocking E.ON’s plan (...)
The EU General Court denies the application for annulment of Commission decision on merger prohibition, though it finds that the assessment of the conglomerate effects resulting from the concentration was erroneous (GE / Honeywell International)
General Electric/Honeywell merger prohibition upheld by European Court of First Instance – “Conglomerate effects” analysis represents “manifest errors of assessment”*
On December 14, 2005, the European Court of First Instance (“CFI”) denied the application of General Electric Company (“GE”) (...)
The EU General Court annuls a Commission decision prohibiting a merger in the packaging industry for insufficient evidence in the examination of the potential leveraging methods (Tetra Laval / Sidel)
THE COURT OF FIRST INSTANCE ANNULS A COMMISSION DECISION PROHIBITING THE MERGER OF TETRA LAVAL AND SIDEL AND THE RELATED DIVESTITURE DECISION.*
The economic analysis of the immediate anti-competitive effects, of conglomerate effects and of the foreseeable conduct of the companies in question (...)
State Aid
The EU General Court confirms the Commission ruling on the calculation of the amount of compensation resulting from contractual obligations in the motorways sector (Autostrada Wielkopolska)
COMPENSATION TO A TOLL ROAD OPERATOR*
Introduction
When is a company entitled to compensation by the state? The easy answer is “when the state is liable for damage”. However, it may be possible for a company to claim compensation from the state when the state has assumed contractual (...)
The EU General Court affirms a Commission decision finding that Greek container terminal operators received incompatible State aid which must be recovered (Piraeus / Cosco)
* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)
The EU General Court affirms a Commission decision that compensation for public services and a capital increase granted by Sardinia to a maritime company is aid incompatible with the internal market (Regione autonoma della Sardegna)
* Article published on StateAidHub (click here). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships with a party or related third party. Article will need (...)
The EU General Court upholds a Commission decision finding that a Danish aid scheme in favour of the print media sector is compatible with the internal market (Søndagsavisen)
* Article published on StateAidHub (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships (...)
The EU General Court confirms the Commission decision holding that the Greek scheme of exclusive rights for lottery did not contain State Aid (Club Hotel Loutraki)
In Brief: Case T-58/13, Club Hotel Loutraki AE and Others v Commission (judgment of 08.01.2015)*
On Thursday the 8th January the GC dismissed all four pleas in the action for annulment of the Commission Decision finding that the exclusive rights granted to operate 35 000 Video Lottery (...)
The EU General Court reminds Member States that when they claim that an exemption follows from the logic of the tax system they have to make sure that they treat equally and consistently all similar cases (Aer Lingus / Ryanair)
* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)
The EU General Court confirms that the Commission has a large margin of discretion in determining the compatibility of restructuring aid (ABN Amro)
* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)
The EU Court of Justice reinforces the Plaumann test and re-emphasizes the role attributed to the national courts within the framework of the preliminary ruling procedure to ensure judicial review of the legality of EU acts (Telefónica)
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 (...)
The EU General Court rules that an unlimited State guarantee granted to the postal services company constitutes incompatible State aid (La Poste)
Two Judgments: a) Unlimited State Guarantees and b) The Discretion of the Commission in Restructuring Measures* Main points Unlimited state guarantees are never compatible with the internal market. The existence of an unlimited guarantee and its benefits can be inferred from the relevant (...)
The EU General Court annuls the Commission’s decision by which it approved all of the measures adopted by France in favour of Corsica ferries (Corsica Ferries France)
A. Essential factual and legal aspects
The shipping company, Corsica Ferries France SAS, applicant in the present dispute, offers regular ferry services to Corsica departing from continental France (Marseille, Toulon and Nice) and Italy. The shipping company and beneficiary of the aid (...)
The EU General Court confirms the Commission’s decision ruling that the Province of Burgenland had granted State aid that was not compatible with the common market (Land Burgenland)
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 (...)
The EU Court of Justice upholds the General Court’s decision addressing the issue of the admissibility of action in state aid cases under the Plaumann test (Comitato Venezia vuole vivere)
Death in Venice: The end of a Commission’s locus standi theory in State aid cases?* Following my previous post, I would like to briefly refer to another interesting battlefield within the State aid area: the locus standi of the beneficiaries of aid schemes (think, for instance, of tax (...)
A Slovakian Regional Court rules on the central office on employment failure to issue formal decisions on its refusal to grant de minimis State aid (Emil Krajèík)
The Regional Court ruled that the Central Office on Employment as well as regional employment offices breached rules on administrative proceedings by omitting to issue formal decisions on refusal to grant the de minimis state aid and incorrectly assessed criteria for provision of de minimis (...)
Procedures
The EU Court of Justice clarifies the application of optional exclusion grounds and the right to self-cleaning (RTS Infra / Aannemingsbedrijf Norré-Behaegel)
On 14 January 2021, the Court of Justice of the European Union (CJEU) held that tenderers who find themselves in one of the optional grounds for exclusion referred to in Article 57(4) of Directive 2014/24/EU of 26 February 2014 on public procurement (the Directive) are only obliged to (...)
The EU General Court relies on secretly-recorded telephone conversations obtained in the context of unannounced inspections (North Sea Shrimps)
Under Article 2 of Regulation 1/2003, the Commission has the burden of proving an infringement of Article 101 TFEU. In the present case, as evidence of the cartel infringement, the Commission relied on secretly-recorded telephone conversations, and the transcripts or notes made thereof, which (...)
The UK Competition Appeal Tribunal sets new precedent on the ability of defendants to rely on their own experts in the field of competition economics in multi-defendant private actions (PSA / Autoliv)
The Competition Appeal Tribunal has set new precedent on the ability of defendants to rely on their own experts in the field of competition economics in multi-defendant private actions. In a groundbreaking ruling handed down yesterday, the Tribunal held that there is no presumption that (...)
The Italian Administrative Court requests a preliminary ruling in a €3.7M abuse of dominance case against a ferry operator asking for clarity on the application of general principles of the right of defence and the effectiveness of public enforcement (Caronte & Tourist)
Timely Launch of Antitrust Investigations: The Right of Defence Vis-à-Vis The Effectiveness of Public Enforcement – Are There Any Elephants in the Room? The Word to the CJEU (Case C-511/23)*
The contested decision
With decision No. 30086 of 29th March 2022, the Italian Competition (...)
The Belgian Competition Authority confirms the use of data room in merger control proceedings (Ter Beke / Colruyt)
On 29 June 2023, the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence – the BCA ) announced in a press release the confirmation of the competition prosecutor’s decision regarding the creation of a data room in the second phase merger (...)
The Turkish Constitutional Court rules a judge’s decision is necessary for conducting on-site inspections (Ford)
Introduction
The Constitutional Court published a significant decision (“Decision”) which includes critical assessments on whether the on-site inspections conducted by the Turkish Competition Authority (“TCA”) violate the inviolability of domicile protected under Article 21 of the (...)
The EU Court of Justice rules that legal professional privilege extends to all communications from external counsel (Orde van Vlaamse Balies)
On 8 December 2022, the Court of Justice of the European Union (“CJEU”) handed down a judgment (C-694/20, Orde van Vlaamse Balies) which appears to strengthen the protection afforded by legal professional privilege (“LPP”) under EU law. In its judgment, the CJEU has held for the first time (...)
The EU Court of Justice rules that ‘relevant evidence’ under the Damages Directive is not limited to pre-existing documents (PACCAR / DAF Trucks / AD and others)
On 10 November 2022, the European Court of Justice (“ECJ”) clarified the meaning of ‘relevant evidence’ within the meaning of Directive 2014/104/EU of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions (...)
The EU General Court dismisses four appeals against price-fixing decisions which were re-adopted nearly two decades after the initial decision against 11 steel producers (Feralpi / Alfa Acciai / Ferriera Valsabbia / Valsabbia Investimenti / Ferriere Nord)
On 9 November 2022, the General Court dismissed in their entirety appeals lodged by a number of Italian manufacturers against the European Commission’s (“Commission”) re-adopted decision of 2019 in the Reinforcing steel bars cartel case. (T-655/19, Ferriera Valsabbia and Valsabbia (...)
The Italian Regional Administrative Court of Latium overturns an Article 101 TFEU infringement decision of the Italian Competition Authority against two Big Tech companies for violation of general administrative law and procedural defence rights (Apple / Amazon)
An Administrative Court overturns an Article 101 TFEU infringement decision of the Italian Competition Authority against Apple and Amazon
In Apple and Amazon v AGCM, the Regional Administrative Court of Latium (the Court) annulled the previous decision made by the Italian Competition (...)
The EU Commission launches a consultation seeking feedback on its antitrust procedural framework
On June 30, 2022, the European Commission (“EC”) launched a public consultation seeking feedback on the performance of Regulation 1/2003 and Regulation 773/2004 (the “Regulations”), which govern the enforcement procedure of EU antitrust law. Interested parties are invited to provide comments (...)
The EU General Court quashes the Commission’s €1B fine against a chip manufacturer due to multiple procedural failings and flawed analysis of the effect on competition (Qualcomm)
On 15 June 2022, the General Court quashed the European Commission’s 2018 decision which found that Qualcomm had abused its dominant position by making exclusivity payments to Apple in relation to the supply of LTE chipsets. The General Court annulled the decision in its entirety, on the (...)
The EU General Court annuls the commission’s decision imposing a €1B on an LTE chipset manufacturer due to procedural irregularities which affected the rights of defence and invalidated the Commission’s analysis of the alleged conduct (Qualcomm)
Abuse of dominance on the LTE chipsets market: the General Court annuls the Commission decision imposing on Qualcomm a fine of approximately €1 billion*
The General Court observes that a number of procedural irregularities affected Qualcomm’s rights of defence and invalidate the Commission’s (...)
The EU General Court rules that the Commission must ensure a “best placed” national competition authority can safeguard fundamental rights (Sped-Pro)
In its Sped-Pro judgment of 9 February 2022, the General Court of the European Union (“General Court”) for the first time examined the impact of deficiencies in the rule of law in an EU Member State on determining which competition authority in the EU is best placed to examine a complaint (...)
The EU General Court dismisses a truck manufacturer’s action and maintains the Commission’s fine of €880.52M for participation in a cartel (Scania)
The General Court dismisses Scania’s action and maintains the fine of €880.52 million imposed by the Commission for Scania’s participation in a cartel between truck manufacturers*
The General Court provides clarification on, first, the legality of a ‘hybrid’ procedure combining the (...)
The EU General Court confirms the case law on the presumption of innocence in cartel cases where only some parties are given leniency for cooperation (Scania)
On 2 February 2022, the General Court of the European Union delivered a judgment in which it upheld the European Commission’s (“Commission”) decision to impose a fine of €880.5 million on Scania for participating in a cartel for 14 years with five other truck manufacturers (Case T-799/17, (...)
The Italian Administrative Court of First Instance annuls a resolution from the Competition Authority to grant the alleged victim of antitrust infringement access to the infringement investigation file (Italcementi)
On December 21, 2021, the Italian administrative court of first instance (“TAR Lazio”), which has jurisdiction to review the decisions of the Italian Competition Authority (AGCM or “ICA”), annulled a resolution from the latter to grant the alleged victim of an antitrust infringement access to (...)
The EU Court of Justice partially annuls a judgment of the General Court reducing to €2.6M the fine imposed on a company for its participation in the steel abrasives cartel (Pometon)
In March 2021, the Court of Justice of the EU ("CJEU") partially annulled a judgment of the General Court ("GC"), reducing from €3.8 million to €2.6 million the fine imposed on Pometon S.p.A ("Pometon") for its participation in the steel abrasives cartel.
The CJEU granted the fine reduction (...)
The EU Court of Justice issues its first ruling on the use of so-called ’hybrid settlement’ procedures in cases in which settlement decisions do not cover all parties to an infringement (Pometon)
In its ruling in Pometon (C-440/19 P), the European Court of Justice ("ECJ") issued its first ruling on the use of so-called ’hybrid settlement’ procedures in cases in which settlement decisions do not cover all parties to an infringement.
What you need to know – key takeaways The ECJ has (...)
The French Supreme Court extends legal privilege to all attorney-client correspondence relating to rights of defence (EDF / Dalkia)
On 20 January 2021, the criminal chamber of the French Supreme Court held that in the context of a dawn raid carried out by a competition authority, all attorney-client correspondence relating to the right of defence is protected and therefore exempt from seizure. Contrary to what previous (...)
The EU Court of Justice confirms that the General Court is not bound to accept a request for the examination of witnesses when it has sufficiently proven that an undertaking took part in an anti-competitive agreement (Silver Plastics)
Witness Hearings In Competition Cases – The Silver Plastics Judgment*
On 22 October 2020, the European Court of Justice (ECJ) confirmed in Silver Plastics that the General Court (GC) is not bound to accept a request for the examination of witnesses when it has sufficiently proven that an (...)
The US DoJ announces updates to civil investigative demand forms and deposition process
The DOJ’s Antitrust Division announced updates late last week to its Civil Investigative Demand (CID) form, explicitly codifying it intent to potentially use materials received in response to CIDs to launch secondary investigations or refer matters to other government enforcement authorities (...)
The US DoJ announces changes to its civil investigative demand forms and deposition process
Department of Justice Civil Investigative Demands and Hidden Risks*
The United States Department of Justice Antitrust Division recently announced changes to its Civil Investigative Demand (CID) forms and deposition process. While these changes are cosmetic—the Antitrust Division (...)
The US DoJ announces updates to civil investigation demand forms and deposition process
Antitrust Division Announces Updates To Civil Investigative Demand Forms And Deposition Process*
Assistant Attorney General Makan Delrahim of the Justice Department’s Antitrust Division announced today that the Antitrust Division has implemented two uniform updates to its Civil Investigative (...)
The Paris Court of Appeal annuls dawn raids conducted by the Competition Authority to find evidence of an alleged price-fixing cartel in the domestic appliance sector (Whirlpool)
On 8 July 2020, the Paris Court of appeal ("the Court") annulled dawn raids conducted by the French Competition Authority ("the FCA") at Whirlpool’s premises in 2014.
On 27 and 28 May 2014, the FCA raided Whirlpool’s premises to find evidence of an alleged price-fixing cartel in the domestic (...)
The Finnish Deputy Chancellor of Justice declares that the Competition Authority’s policy to prohibit recordings of hearings is declared unlawful under the national Competition Act
According to the decision of the Deputy Chancellor of Justice ("DCJ"), responsible for monitoring the lawfulness of the operations of public authorities, the Finnish Competition and Consumer Authority ("FCCA") cannot restrict the right of attorneys to record the hearings conducted by the FCCA (...)
The EU Commission launches consultations on ex-ante competition enforcement in platform-based and other industries
Recently, the European Commission (“EC”) launched two major public consultations for new legislative tools intended to step up antitrust enforcement in digital and other markets. One consultation relates to a new competition enforcement tool that would allow the EC to pro-actively intervene in (...)
The EU Commission consults stakeholders on a possible competition tool that would allow addressing structural competition problems, such as tipping markets, in a timely and effective manner
Antitrust: Commission consults stakeholders on a possible new competition tool*
The European Commission has published today an inception impact assessment as well as an open public consultation inviting comments on exploring the need for a possible new competition tool that would allow (...)
The Lithuanian Competition Authority publishes an explanatory note clarifying its dawn raids procedure
Konkurencijos Taryba Publishes Explanatory Note on Inspections Performed at Business Premises*
The Lithuanian competition authority Konkurencijos taryba has prepared an explanatory note for companies and their lawyers to give more clarity on the procedures of the inspections carried out at (...)
The EU Court of Justice confirms the right of access to documents contained in the file of a marketing authorisation application for a medicinal product (PTC Therapeutics / MSD Animal Health)
The Court confirms the right of access to documents contained in the file of a marketing authorisation application for a medicinal product*
An objection to such access must explain the nature, purpose and scope of the data whose disclosure would undermine commercial interests
In the (...)
The US District Court for the District of Arizona receives a complaint challenging the constitutionality of the FTC’s administrative process in merger review (Safariland / Axon / VieVu)
AXON SUES FTC OVER USE OF ADMINISTRATIVE ADJUDICATION IN MERGER INVESTIGATIONS *
On January 3, 2020, Axon Enterprises Inc. filed a complaint against the Federal Trade Commission in the United States District Court for the District of Arizona challenging the constitutionality of the FTC’s (...)
The OECD holds a roundtable on access to the case file and protection of confidential information
Providing access to evidence in a competition agency’s case file protects the parties’ rights of defence and promotes the transparency of the system. The extent and the timing of this access vary across jurisdictions.
Agencies depend on access to confidential information provided by parties (...)
The Mexican Competition Authority releases guidelines that recognise attorney-client privilege in antitrust investigations
In Short
The Development: Mexico’s antitrust authority, the Comisión Federal de Competencia Económica ("COFECE"), released guidelines that recognize the attorney-client privilege in antitrust investigations.
Background: Mexican law requires that lawyers maintain professional secrecy, which (...)
The EU General Court annuls a €33.6 million fine imposed in relation to the Euro Interest Rate Derivatives cartel because of the Commission’s insufficient reasoning on the applied calculation method (HSBC)
In yet another bank cartel case, the EU General Court (“GC” or “the Court”) takes a position consistent with its previous case law as regards the right to defence of the parties and annuls the fine imposed on HSBC due to insufficient reasoning. In addition, the GC assesses the conditions for (...)
The Philippine Supreme Court issues rules for inspections for administrative investigations by the Competition Authority
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
Recent Developments
The Supreme Court has recently issued A.M. No. 19-08-06-SC or the "Rule on Administrative Search and Inspection under the Philippine (...)
The US Supreme Court issues a decision limiting the circumstances under which a federal agency may be compelled to disclose the confidential information received by the agency, from a private party (Food Marketing Institute / Argus Leader Media)
On June 24, 2019, the Supreme Court of the United States issued an important decision limiting the circumstances under which a federal agency may be compelled to disclose “confidential” information the agency received from a private party, and which the agency seeks to withhold under the (...)
The Indonesian Competition Authority publishes its regulation in the procedure for cases of monopolistic practices and unfair competition
In mid-April 2019 the Business Competition Supervisory Commission (Indonesian acronym: KPPU) published its Regulation No.1 of 2019 on the Procedure for Cases of Monopolistic Practices and Unfair Competition (Regulation No.1 of 2019), replacing KPPU Regulation No. 1 of 2010 of the same name. (...)
The International Competition Network adopts a tool of cooperation to identify the main principles guaranteeing procedural fairness in procedures that implement competition law
A new tool of international cooperation to boost procedural fairness*
The International Competition Network (ICN), gathering 138 international competition authorities, has adopted a new tool of cooperation, the Framework on Competition Agency Procedures (thereafter the “CAP”).
The CAP (...)
The Turkish Competition Authority fines a fertiliser supplier for hindering an on-site inspection (Ege Gübre Sanayii)
On May 3rd, 2019 the Turkish Competition Board (“Board”) published its reasoned decision dated February 7th, 2019 and numbered 19-06/51-18 with respect to the hindering of the on-site inspection conducted in Ege Gübre Sanayii A.Ş. (“Ege Gübre”). The decision concerns the evaluation on whether (...)
The EU Commission publishes guidelines to facilitate access to antitrust files
On 12 December 2018, the European Commission (“Commission”) published two new guidance documents facilitating access to the Commission’s files by undertakings subject to antitrust proceedings. These documents are part of the Commission’s efforts to increase the transparency of competition (...)
The OECD holds a roundtable on the treatment of legally privileged information in competition proceedings
Most OECD jurisdictions protect the confidentiality of the relationship between a client and its attorney, and grant parties in competition proceedings the right to resist disclosure of protected information to public bodies and third parties. Legal professional privilege is a corollary of the (...)
The Spanish Supreme Court recognises the investigated companies’ rights of opposition to dawn raids in an energy sector case (Repsol)
On 17 September 2018, the Spanish Supreme Court reinforced the necessary requirements for the Spanish Competition Authority (“CNMC”) to carry out competition dawn raids by recognizing the investigated companies’ “right of opposition” to inspections when the inspectors refuse to inform them of (...)
The High Court of Delhi rejects a company’s appeal and clarifies several procedural issues including the period when the recall application can be filed (Cadila Healthcare)
Delhi High Court Division Bench clears procedural and jurisdictional issues in antitrust enquiry by the CCI*
In a landmark judgement dated September 12, 2018, on a LPA filed by Cadila Healthcare Limited (“Cadila”), the division bench of the Delhi High Court, comprising of Justice S. Ravindra (...)
The German Federal Constitutional Court upholds limitations to the prohibition of seizure of evidence at law firms (Volkswagen)
The protection from seizure by law enforcement, which the client-attorney privilege affords to the findings gathered by lawyers who are commissioned with internal investigations at businesses, has narrow limits. The affiliate of a law firm’s client has been denied protection from seizure by (...)
The EU Court of Justice rejects an appeal against the publication by the Commission of confidential information (Nexans)
On 12 June 2018, the Court of the Justice of the European Union (“ECJ”) rejected the appeal lodged by Nexans against the Order of the President of the General Court of 23 November 2017, which had rejected Nexans’ request to prevent the publication by the Commission of confidential information (...)
The EU Court of Justice rejects a cartel participant’s appeal concerning the inclusion of allegedly confidential information in the non-confidential version of the infringement decision (Nexans)
By order of 12 June 2018, the Vice President of the CJEU dismissed the appeal lodged by Nexans France SAS and Nexans SA (collectively, Nexans) against the order of the President of the GCEU of 12 July 2017. The latter rejected Nexans’s application for an interim injunction to prevent the EC (...)
The High Court of Delhi upholds the right to counsel during antitrust investigation by Director General but restricts the scope of counsel to exclude direct consultation with client (Oriental Rubber)
Delhi High Court upholds right to counsel during DG investigation*
The division bench of the Delhi High Court by its judgement dated May 24, 2018 in Competition Commission of India and Anr. v. Oriental Rubber Industries Pvt. Ltd. has upheld the right of a person summoned by the Director (...)
The High Court of Delhi refuses to interfere with the prima facie order passed by the Competition Authority post submission of the Director General’s Investigation Report (Cadila Healthcare)
Delhi High Court refuses to interfere with prima facie order passed by CCI post submission of DG Investigation Report*
The High Court of Delhi in a recent judgement dated March 9, 2018 has refused to interfere in a pending inquiry after the submission of the Director General’s (DG) (...)
The Brussels Court of Appeal clarifies the obligation of the Competition Authority to provide statement of reasons regarding documents seized during dawn raids (Distripaints / Novelta)
On 13 December 2017, the Brussels Court of Appeal (the “Court”) held that documents seized by the Belgian Competition Authority (“BCA”) during an inspection had been legally included in the scope of the investigation as the BCA had provided a satisfactory statement of reasons following a (...)
The Moldovan Competition Authority fines three companies for failure to submit to an on-site inspection (Cifroteh / Interacces-M / Glamis)
On 16 October 2017 the Competition Council (CC) fined three undertakings for the failure to submit to an on-site inspection and providing false or misleading information to the representatives of the CC thus obstructing the ongoing investigation.
The Competition Law authorizes the CC to (...)
The Moldovan Supreme Court clarifies the rules on the appointment of the members of the Competition Authority (Feodor Gladii)
On 19 July 2017, the Supreme Court of Justice (SCJ) of the Republic of Moldova has clarified the procedural rules concerning the appointment of the members of the Competition Council (CC) in a case concerning the alleged discrimination at the workplace.
The Moldovan Competition Law provides (...)
The Polish Supreme Court provides guidance on setting fines for resale price maintenance and recognizes the privilege against self-incrimination in the national competition law (Polifarb Cieszyn – Wrocław)
Introductory remarks
In its decision of 18 September 2006, the President of the Office of Competition and Consumer Protection (hereinafter referred to as the ’President of UOKiK’) imposed fines on Polifarb Cieszyn - Wrocław S.A. (hereinafter referred to as ’PCW’) Praktiker Polska, OBI, (...)
The Irish Supreme Court upholds the High Court judgement restraining the Competition Authority from reviewing certain electronic documents seized in a dawn raid (CRH)
Introduction
On 29 May 2017, the Irish Supreme Court handed down a judgment in the case of CRH plc, Irish Cement Limited & Séamus Lynch v The Competition and Consumer Protection Commission in relation to the application of the statutory powers of entry, search, seizure and retention of (...)
The English High Court rules that notes of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by legal advice privilege or lawyers’ working papers privilege (RBS Rights Issue Litigation)
In December 2016, the English High Court ruled that transcripts, notes and other records of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by either legal advice privilege (“LAP”) or lawyers’ working papers privilege. (...)
The Mexican First Collegiate Tribunal recognises attorney-client privilege in the field of competition law
Mexican Court recognises attorney-client privilege in the field of competition law*
In December 2016, a Mexican court Specialised in Competition (the First Collegiate Tribunal) recognised, for the first time in this field of law, the existence of the legal privilege as a protection of (...)
The Spanish Competition Authority holds that mobile phones are not safe from dawn raid scrutiny (Nougat cartel)
Employee’s mobile phones not safe from dawn raid scrutiny, Spanish court finds*
On 7 April 2016, the CNMC (Spain’s National Authority for Markets and Competition) Council imposed fines totalling €6.12 million on six Spanish nougat (“turrón”) producers for agreeing to share the market of the (...)
The Irish High Court finds that the Competition Authority has exceeded its dawn raid powers in seizing digital material in bulk (CRH)
Introduction
In CRH plc v The Competition and Consumer Protection Commission the Irish High Court found that the Irish Competition and Consumer Protection Commission (“CCPC”) had exceeded its dawn raid powers in seizing digital material in bulk. The High Court granted orders preventing the (...)
The EU Court of Justice requires the Commission to provide adequate reasons for its requests for information from cement manufacturers during the course of a cartel investigation (Cement Case)
THE EUROPEAN COURT OF JUSTICE REQUIRES THE EUROPEAN COMMISSION TO PROVIDE ADEQUATE REASONS FOR ITS REQUESTS FOR INFORMATION*
On March 10, 2016, the Court of Justice of the European Union (CJEU) rendered its judgment in the so-called Cement case, (C-247/14 P HeidelbergCement v Commission, (...)
The Supreme Court of British Columbia denies disclosure based on public interest privilege (Pro-Sys / Microsoft)
Documents and information that the Competition Bureau collects from third parties during its investigations are protected by public interest privilege from disclosure to plaintiffs in private actions, the BC Supreme Court has ruled.
The plaintiffs in a class action alleging that Microsoft (...)
The Indian Competition Appeal Tribunal sets aside cartel fines against cement companies (Cement Cartel Case)
COMPAT sets aside cartel fines against cement companies*
The most significant cartel development of 2015 happened to come right at the end. On 11 December 2015, the Competition Appellate Tribunal (COMPAT) set aside an order of the CCI imposing fines amounting to approx. USD 945.4 million on (...)
The Indian Competition Appellate Tribunal dismisses application for review of its earlier decision and delineates the difference between “power of review” and that of “appeal” (TDI Fun Republic Shops Owners’ Welfare Association / E-City Property Management and Services)
Competition Appellate Tribunal (COMPAT) pronounces decision on the scope of review*
The COMPAT in its order dated 18.11.2015, has dismissed an application for review of COMPAT’s decision dated September 1, 2015 through which it had dismissed the appeal preferred by the Informant against a (...)
The EU Commission publishes an explanatory note on its powers of investigation
Call My Bluff*
The European Commission (or to be more precise, and to point the finger in the right direction, DG Competition) has sweeping powers of investigation in cases of suspected infringement. Indeed, it has even sought and obtained powers that it then seems reluctant to use, such as (...)
The Canadian Federal Court provides practical guidance for parties responding to compulsory production orders from the Competition Authority (Bell Mobility)
Responding to Compulsory Production Orders from the Competition Bureau: Federal Court of Canada Provides Practical Guidance*
Canada’s Commissioner of Competition is armed with a variety of compulsory powers that he can use in pursuing investigations. One such power is the ability, with the (...)
The EU Court of Justice clarifies the ban of "fishing expeditions" during dawn raids (Deutsche Bahn)
Dawn raids – EU’s highest court prevents circumvention of the ban on using dawn raids for fishing expeditions*
The Court of Justice of the European Union has now delivered its judgment in the Deutsche Bahn case. This case concerns important practical principles which govern the conduct of (...)
The US Congress passes a bill that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation
Antitrust Whistleblowers Get Another Shot at Federal Protection from Retaliation by Employers*
A bill is advancing through the U.S. Senate that would protect employees who report suspected criminal antitrust activity to their employer or the federal government from workplace retaliation. The (...)
The US Congress passes antitrust whistleblower protection act
Should There Be an Antitrust Whistleblower Statute?*
On July 22cd, the Senate passed the Criminal Antitrust Anti-Retaliation Act of 2015. The bill now goes to the House for consideration. If signed into law the Act will create for the first time whistleblower protections for employees who (...)
The England & Wales High Court renders a judgment regarding a cartel damages settlement exploring what “collateral defence” means (W.H. Newson Holding / IMI)
Settling cartel damages actions: contribution defendants beware*
Anyone who has ever tried to settle a cartel damages case will know that the law relating to settlements is fraught with difficulty. The recent judgment of the High Court in IMI Plc v Delta Ltd [2015] EWHC 1676 (Ch) highlights (...)
The English Court of Appeal answers the question of when a decision should be remitted to a different decision-maker (HCA International)
When should a decision be remitted to a different decision-maker?*
The Court of Appeal’s answer to this question in HCA International Limited v CMA [2015] EWCA Civ 492 was, in effect: rarely. The judgment, which contains some serious criticism of the CMA even though it won the case, (...)
The Australian Federal Court rules against submissions on agreed penalties (Fair Work Building Industry Inspectorate / Construction, Forestry, Mining and Energy Union)
On 1 May 2015 the Full Court of the Federal Court of Australia ruled that it was not permissible for parties to make joint submissions as to the appropriate ‘pecuniary penalty’ to be imposed: Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (...)
The EU Court of Human Rights rules that dawn raids carried out at the premises of two companies by the French Department for Competition, Consumer Protection and Fraud violates both the rights of defense and the right to privacy (Vinci / GTM)
The European Court of Human Rights (ECtHR) recently ruled that dawn raids carried out at the premises of two French construction companies by the DGCCRF (French Department for Competition, Consumer Protection and Fraud) violated both the rights of defense and the right to privacy, due to (...)
The EU Court of Human Rights rules that French dawn raids breached fundamental rights (Vinci / GTM)
The European Court of Human Rights (the “ECtHR”) has ruled in the Vinci case that the circumstances surrounding the electronic removal of documents and computer files during a dawn raid violated two companies’ privacy rights enshrined in the European Convention on Human Rights (“ECHR”) . The (...)
The Italian State Council sheds light on the scope of parties’ right of access to confidential documents held by the Competition Authority for the purpose of their defence in civil proceedings (Esso Italiana)
Introduction
By judgment n. 1585/2015 of 25 March 2015, the Italian Council of State (Consiglio di Stato, hereinafter “CoS”), upheld the decision of the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter “ICA”) not to grant Esso Italiana S.r.l. (...)
The Czech Competition Authority announces that it will recommence dawn raids
The Prohibition on Dawn Raids in the Czech Republic has Ended*
Last autumn, the Czech Antitrust Office had announced that it halted its dawn raids. The decision came from – what many felt – was a surprise decision of the European Court of Human Rights in Strasbourg (ECHR) dated 2 October (...)
The UK Competition Appeal Tribunal holds that interveners may be in the same position as appellants, and that the test for admitting new grounds is substantially the same as that for fresh evidence (British Telecommunications / OFCOM)
Fresh grounds and evidence before the CAT*
On the face of it, BT was the main winner in this week’s ruling from the Competition Appeal Tribunal: see British Telecommunications plc v Office of Communications [2015] CAT 6. However, the decision, which makes interesting comments on the rights (...)
The Indian Competition Appellate Tribunal orders to the Competition Authority to follow due process by ensuring neutrality and fairness in adjudication and raising the bar for the standard of proof (Board of Control for Cricket in India / CCI)
Introduction
The role of procedural justice and it’s value in shaping antitrust jurisprudence in India has never felt stronger than now. Due process has evolved as the most contemporary buzzword in the story of antitrust enforcement in India. Many of notable orders passed by the Competition (...)
The EU Advocate General Nils Wahl recommends the avoidance of "fishing expeditions" during dawn-raid (Deutsche Bahn)
European Commission dawn raids – Advocate General recommends the avoidance of “fishing expeditions”*
Earlier this month, Advocate General Wahl delivered his opinion in the Deutsche Bahn1 case. This case concerns important practical principles which govern the conduct of European Commission (...)
The Slovak Supreme Court outlines the principles of effective ex-post court review of dawn raids (Stengl Consulting)
Introduction
The Slovak Supreme Court (SSC) issued in February 2015 a ruling concerning the ex-post court review of unannounced inspections (dawn raids). Following the decision of the ECHR in Delta Pekárny which stressed the importance of national judges overseeing the seizures und (...)
The Belgian Constitutional Court confirms the legality of a separate appeal procedure against investigative measures of the Competition Authority (Ordre des barreaux francophones et germanophone)
In brief
In a judgment of 10 December 2014 the Constitutional Court confirmed the legality of a separate appeal procedure against investigative measures of the Belgian Competition Authority. The Constitutional Court ruled that the appeal procedure, which is only available following the (...)
The Spanish Supreme Court annuls, in two landmark rulings, two decisions from the Competition Authority due to a violation of the fundamental right to inviolability of the home by the Authority (UNESA)
The Spanish Supreme Court annuls, in two landmark rulings, two decisions from the Competition Authority due to a violation of the fundamental right to inviolability of the home by the Authority
The Supreme Court has annulled inspections carried out by the National Competition Commission (...)
The Spanish Supreme Court annuls inspections on a professional association on grounds of insufficient reasons for the inspection decision (UNESA)
On December 10, 2014, the Spanish Supreme Court issued judgment number 4201/2011, allowing the appeal that the Asociación Española de la Industria Eléctrica (“UNESA”) filed against the judgment of the Audiencia Nacional (Spanish Court of Appeal, “AN”) of June 2, 2011. The AN’s judgment had (...)
The England & Wales High Court of Justice orders the disclosure of a four-years old unpublished decision of the EU Commission to a confidentiality ring of claimants and defendants (Emerald Supplies)
High Court tests the limits of confidentiality in EC infringement decisions*
The European Commission came in for some stern criticism from the High Court this week, in a case which looks set to test the boundaries of confidentiality in EC infringement decisions: see Emerald Supplies v BA (...)
The Canada Supreme Court rules that civil antitrust plaintiffs may receive wire-tap evidence obtained in a criminal investigation (Imperial Oil)
Civil Antitrust Attorneys Receive Wire-Tap Evidence*
The Canada Supreme Court ruled earlier this month that civil antitrust plaintiffs may receive wire-tap evidence obtained in the criminal investigation into an alleged price-fixing scheme by several large gas companies. During the criminal (...)
The Canadian Supreme Court confirms plaintiffs’ ability to obtain disclosure of wiretap evidence obtained in connection with criminal competition law investigations (Imperial Oil)
Canadian Supreme Court Clears Criminal Wiretap Evidence For Use in Competition Class Actions*
In an important decision released on October 17, 2014, Imperial Oil v. Jacques, 2014 SCC 66, the Canadian Supreme Court confirmed plaintiffs’ ability to obtain disclosure of wiretap evidence (...)
The Canadian Supreme Court holds that class action plaintiffs can obtain wiretap evidence (Imperial oil)
This article has been nominated for the 2015 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
Class action plaintiffs can obtain wiretap evidence*
Class action plaintiffs can obtain court-ordered disclosure of wiretap evidence obtained by the (...)
A US District Judge holds that an antitrust compliance policy can fall outside of attorney-client privilege (Domestic Drywall)
Are Antitrust Compliance Programs Protected by Attorney-Client Privilege?*
We’ve previously written about the components of effective antitrust compliance programs and the potential benefits corporations may achieve by adopting them. (Read some of our posts here and here.) In drafting (...)
The EU Court of Human Rights condemns the Czech Republic for lack of effective independent control of competition dawn raids (Delta Pekarny)
No More Dawn Raids in the Czech Republic*
For a few weeks now, the Czech Antitrust Office has stopped its dawn raids. The reason for this stems from the surprising decision of the European Court of Human Rights in Strasbourg (ECHR) dated 2 October 2014 (DELTA PEKARNY a.s., complaint number (...)
The UK Competition Appeal Tribunal rules in favour of applicants seeking disclosure of documents from the Competition Authority case file concerning completed investigations (HCA)
Introduction
In a judgment published in July 2014, the Competition Appeal Tribunal (the CAT) ruled in favour of applicants seeking disclosure of documents from the Competition and Markets Authority (the CMA) case file concerning completed investigations. The judgment arose in connection with (...)
The Ontario Superior Court of Justice holds the presumption that possession of documents, persons, or firms implies knowledge of their contents is unconstitutional in a criminal context (Marina Durward / Devon Group / Spearhead Management / TPG Technology Consulting)
Canadian Cartel News – Volume 5 – One Place Where Possession is not Nine Tenths of the Law*
Section 69(2) of the Competition Act provides that, by possessing documents, persons and firms are deemed to know their contents and to have done what the documents say was done. Particularly in the (...)
The EU Court of Justice upholds the Commission’s first withdrawal of immunity for cartel whistleblower but finds the General Court failed to timely adjudicate (Deltafina / FLS Plast)
The European Court of Justice has upheld a €30 million fine against cartel whistleblower Deltafina, which was imposed following the withdrawal of Deltafina’s conditional immunity as a result of the breach of its duty to cooperate under the European Commission’s leniency program. This ruling (...)
The EU General Court holds that a duty to procure specific documents might be imposed on the Commission at the request of an undertaking which is the subject to an antitrust investigation under certain circumstances (Intel)
Access to documents not to be found in the Commission’s possession
I. Background
The Intel Cases have occupied the international arena of antitrust litigation for the past ten years and a definitive resolution has not been reached yet. The administrative proceeding initiated by the (...)
The EU General Court dismisses an action for annulment on a claim of the excessive length of the proceedings since the applicant did not show any negative consequences impeding the right to a fair trial (Reagens)
Case T-30/10 Reagens SpA v Commission: unsubstantiated pleas and length of proceedings
The General Court’s judgment in Case T-30/10 Reagens SpA v Commission EU:T:2014:253 (alternative link here) doesn’t really break new ground. But it does remind applicants of a few basic truths. In some (...)
The Slovenian Parliament adopts amendments to the Competition Act
Slovenia: Amendments to the Competition Act*
On 10 May 2014, recent amendments to the Slovenian Competition Act came into force. The main changes concern the adjustment of the powers of the Slovenian Competition Protection Agency (CPA) to conduct inspections. The new system foresees that (...)
The US DoJ announces its first-ever successfully litigated extradition of a foreign citizen to the US in a federal criminal antitrust case (Romano Pisciotti)
The United States Department of Justice has announced “its first-ever successfully litigated extradition of a foreign citizen to the United States in a federal criminal antitrust case” – the extradition to the US from Germany of an Italian citizen, indicted in the so-called marine hose cartel, (...)
The US Supreme Court affirms the judgment of the Court of Appeals for the Sixth Circuit and gives voice to criticism against the traditional standing test for antitrust claims (Lexmark International / Static Control Components)
Supreme Court Creates New Standing Test For Asserting False Action Claim Under Lanham Act*
On March 25, 2014, the Supreme Court issued a unanimous opinion, authored by Justice Scalia, in Lexmark International, Inc. v. Static Control Components, Inc. In a previous post, I discussed my (...)
The EU Commission examines a complaint against Germany on the matter of discriminatory treatment of EU citizens in connection with the extradition of an Italian citizen to the US on an antitrust charge (Romano Pisciotti)
Cartel offender takes action against EU*
In early April, the US Department of Justice’s Antitrust Division (DoJ) successfully extradited Romano Pisciotti – an Italian national - from Germany on an antitrust charge. It has been revealed this week that Mr Pisciotti has raised a legal challenge (...)
The EU General Court confirms the practice of the Commission regarding requests for information based on simple presumptions (Cementos Portland Valderrivas)
On March 14, 2014, the General Court of the European Union (General Court) has confirmed the practice of the European Commission (Commission) regarding requests for information based on simple presumptions. The judgments demonstrate a bias in favour of the effectiveness of inspections (...)
The UK Parliament adopts a proposal for an opt-out regime from contingency fees in collective actions
Sharing Risk in Collective Actions*
With legislation to introduce collective actions currently making its way through Parliament (see our previous blog here), we are pleased to welcome a guest blog from Elaine Whiteford of King & Wood Mallesons LLP and Oliver Gayner of Burford Capital (...)
The German Federal Court of Justice recognizes that information which became known to lawyers in the process of acquiring new clients may be subject to the right to refuse testimony
In its decision of 18 February 2014, the Federal Court of Justice (the “Court”) considered the right to refuse testimony to apply to any information which became known to a lawyer in the course of two telephone calls he made for the purpose of the acquisition of a new client. As a consequence, (...)
The EU Parliament presents a report comprising amendments to the Commission’s legislative proposal concerning the regime of actions for damages prompted by infringements of competition law
Introduction
In the beginning of the process of decentralization of the enforcement of competition law in the EU the necessity to encourage the development of private enforcement appeared to be more of a theoretical proposition than a tangible reality. Ten years after the adoption of the (...)
The Dutch Competition Authority allows blocking certain internet services onboard trains of the national railway company as an exception from the net neutrality rule (T-Mobile)
Telecom company T-Mobile is allowed to restrict free internet access on board trains*
The Netherlands Authority for Consumer and Markets (ACM) has concluded that Dutch telecom company T-Mobile is allowed to block certain services such as YouTube and Spotify on the free Wi-Fi-network on board (...)
The New Zealand Competition Authority sets guidelines for international information requests
Commerce Commission sets guidelines for international information requests*
The Commerce Commission has today released its guidelines for Overseas Requests for Compulsorily Acquired Information and Investigative Assistance.
The guidelines explain how the Commission deals with requests from (...)
The Swedish Competition Authority finds a breach of the proportionality principle in relation to the exclusion of suppliers who use more qualified nursing personnel than the minimum imposed in the tender specifications (Systrarna Odh)
Best country to grow old
The UN ranked Sweden in a recent study as best country in the world for treatment of elderly. The Swedish public procurement markets for care services have been opened to competition via the system of public procurement and more recently via a system based on freedom (...)
The EU Court of Justice consolidates view on an effective remedy for the excessive length of proceedings before the General Court in competition cases (Groupe Gascogne)
In the Groupe Gascogne judgment delivered on 26 November 2013, the Court of Justice consolidates its conception on issues of effective judicial protection in competition law adjudication. The case originated in an action for annulment against the General Court (GC) judgment T-72/06 Groupe (...)
The EU Court of Justice rules on the procedural and substantial provisions applicable to an antitrust claim and establishes that court proceedings of an excessive duration violated Article 47 of the Charter of Fundamental Rights of the EU (Groupe Gascogne)
It’s for the GC to decide, but it’s not ok: CJEU rules on ’excessive duration’ of competition law litigation (C-40/12 P)*
In a batch of impatiently expected Judgments of 26 November 2012, the CJEU has ruled on the procedural and substantial rules applicable to a claim that (competition law) (...)
The Paris Court of Appeal rules on the communication by the Competition Authority of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private enforcement claim (Ma liste de courses)
In its judgment dated November 20, 2013, the Paris Court of appeal (the Court of Appeal) ruled on the communication by the French Competition Authority (the FCA) of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private (...)
The EU Court of Justice establishes that avoidance of litigation does not constitute an overriding reason of general interest that can be invoked in order to uphold a direct award of a concession contract (Belgacom)
CJEU rejects avoidance of litigation as a valid ’overriding reason in the public interest’ justifying a direct award of a concession contract (C-212/12)*
In its Judgment of 14 November 2013 in case C-221/12 Belgacom, the CJEU has rejected that the avoidance of litigation can be considered a (...)
The Canadian Supreme Court establishes that specific authorisation is needed for computer searches in Canada, raising questions on the same matter in EU law (Vu)
Introduction The Supreme Court of Canada (“court”) ruled on November 7, 2013 in R v Vu (“Vu”) that specific warrant authorisation is needed to execute searches of computers and mobile phones. While the judgment concerned alleged offences in relation to the production and possession of (...)
The Canadian Supreme Court rules that investigators cannot search personal electronic items without a warrant providing them with an express authorization (Vu)
The Supreme Court of Canada: A Computer is Not a Cupboard*
When investigating cartel violations in Canada, the Competition Bureau’s tool of choice is the “search and seizure” (the Canadian equivalent of the “dawn raid” in Europe). The Bureau execises its search and seizure powers pursuant to (...)
The Canadian Supreme Court rules that specific authorisation needed to search computers and mobile phones (Vu)
Introduction The Supreme Court of Canada (“court”) ruled on 7 November 2013 in R v Vu that specific warrant authorisation is needed to execute searches of computers and mobile phones. While the decision concerned alleged offences related to the production and possession of marijuana, it most (...)
The EU Court of Justice AG Cruz Villalón deals in his opinion with the exceptions to the right of access to public documents implying that it cannot be excluded that the commercial interests of the leniency applicants may be damaged by disclosure (Energie Baden-Württemberg)
AG Cruz Villalon on access to leniency applications: A stringent test. Really? (C-365/12)*
In his Opinion of 3 October 2013 in case C-365/12 EnBW Energie, Advocate General Cruz Villalon has proposed a holistic interpretation of the regulatory schemes relating to access to documents of the (...)
The Belgian Competition Authority dismisses a claim from the College of Prosecutors concerning geographical allocation agreements between laboratories active in BSE testing, slaughterhouses and their professional organization (BSE laboratories)
I. The Facts
In the 1990s Great Britain was affected by the outbreak of BSE (“bovine spongiform encephalopatie"), causing the European Union to take immediate action. Member States were obliged to comply with the imposed obligations by the European Union and to carry out tests urgently. The (...)
The District Court of Rotterdam disallows the Dutch Competition Authority from using data obtained through wiretaps in two cases (Groep / Burando)
ACM to appeal Court’s ruling against use of wiretap data*
The District Court of Rotterdam has prohibited the Netherlands Authority for Consumers and Markets (ACM) in two cases from using data obtained through wiretaps, which ACM had been provided by the Dutch Public Prosecution Service (OM). (...)
The EU Court of Justice dismisses the appeal supported by pleas on the violation of fundamental rights in elevators cartel case (Schindler)
I. Background
The Schindler Group is a leading supplier of elevators, escalators and related services. Schindler’s operations cover 140 countries worldwide and involve a large number of national subsidiaries, including Schindler Belgium, Schindler Luxembourg, Schindler Netherlands and (...)
The EU Court of Justice rules on the compatibility of the antitrust procedure with the fundamental rights of the EU in elevators cartel case (Schindler)
The Schindler Ruling of the Court of Justice of the European Union: Potential Implications for Fundamental Rights and EU Competition Law*
I. Background
Defense counsel in European antitrust proceedings have long bemoaned the fact that “fundamental rights” did not effectively find their (...)
The EU Court of Justice holds that EU Member States cannot adopt legislation depriving plaintiffs of all rights to access evidence in a cartel file of an antitrust authority (Donau Chemie)
The European Union’s Court of Justice (CJEU) has handed a victory to cartel damage claimants. In its 6 June Donau Chemie ruling, the CJEU held that EU Member States cannot adopt legislation that deprives plaintiffs of all rights to access evidence in a cartel file of an antitrust authority. (...)
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)
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 (...)
The US DoJ and US FTC testifies at a Senate subcommittee antitrust oversight hearing
Federal Antitrust Agency Heads Testify at Senate Subcommittee Antitrust Oversight Hearing*
FTC Chairwoman Edith Ramirez and William J. Baer, Assistant Attorney General in charge of the Department of Justice Antitrust Division, testified before the Senate Judiciary Committee’s antitrust (...)
The Romanian Supreme Court rejects an appeal against a dawn raid order on points of law that relied on claims of non-compliance with the right to inviolability of domicile (BRD-Group Société Générale)
The irremediable impairment of the rights of defence may arise from the disregard of the right to the inviolability of domicile
Introduction ...whilst it is true that the rights of the defence must be observed in administrative procedures which may lead to the imposition of penalties, it (...)
The Dutch Supreme Court confirms legal privilege for in-house lawyers
On 15 March 2013, the Dutch Supreme Court (Hoge Raad der Nederlanden) confirmed the existence of a general legal privilege for in- house lawyers. The Supreme Court considered that the Akzo case law of the European Court of Justice (ECJ) is not applicable beyond EU competition law and (...)
The Brussels Court of Appeal holds that communications between a company and its in-house counsel are entitled to the protection of the attorney-client privilege under Belgian law (Belgacom)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
The Brussels Court of Appeal held that communications between a company (Belgacom Group) and its in-house counsel were entitled to the protection of the (...)
The EU Court of Justice Advocate General Jääskinen postulates that the prohibition of reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria is precluded by EU public procurement law (Mannocchi Luigino)
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 (...)
The EU Court of Justice Advocate General Jääskinen puts forward that an absolute level of protection should be afforded by legislative means to the leniency applicants (Donau Chemie)
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 (...)
The Dutch Trade and Industry Appeal Tribunal holds that former employees have the right to remain silent in antitrust investigations carried out by the Dutch Competition Authority (College van Beroep voor het bedrijfsleven)
On 21 December 2012, the Dutch Trade and Industry Appeal Tribunal (College van Beroep voor het bedrijfsleven) held that former employees of companies subject to an antitrust investigation have the right to remain silent when being questioned by the national competition authority.
In (...)
The Bucharest Court of Appeal confirms the restrictive interpretation of the legal professional privilege in the Romanian competition law
Romania is among the last countries in the European Union to have introduced the concept of the Legal Professional Privilege (“LLP”) in its national legislation. This took place in 2010 when the Romanian Competition Law (RCL) has been amended to a great extent and the relevant provision has (...)
The Indian Ministry of Corporate Affairs proposes a significant change in respect of the search and seizure powers granted to the investigating office of Competition Authority
The Ministry of Corporate Affairs, Government of India which is the authority responsible for the functioning of the Competition Commission of India (CCI) has proposed a bill in the Lower House of Parliament of India on 10 December 2012 to amend the Competition Act, 2002 (Act). This proposal (...)
The US District Court for the Northern District of California recognizes indirect purchasers’ standing in cases where component products have little independent utility (Flat Panel Antitrust Litigation)
In re TFT-LCD (Flat Panel) Antitrust Litig., 2012 U.S. Dist. LEXIS 145935 (N.D. Cal. 2012)
Even though many states have chosen to part company with federal antitrust laws by permitting antitrust standing for so-called "indirect purchasers" under state law — despite the holding of the Supreme (...)
The EU Court of Justice rejects an appeal by the German energy company for failing to substantiate the reversed burden of proof and the allegedly incorrect assessment of the fines imposed for breaching a seal during an EU dawn raid (E.ON)
I. Introduction
Breaching of a seal constitutes a serious violation of the Commission’s investigative powers in the competition field for which fines not exceeding 1 % of the undertaking’s turnover may be imposed. On 15 April 2008, E.ON Energie brought an action for annulment against a (...)
The EU General Court confirms that fact-finding measures conducted under article 20(4) of the Regulation No 1/2003 does not bring about a distinct change of the legal position of the applicant, thus may not be the subject of an action for annulment (Nexans)
I. Introduction
The applicants in the present case seek the annulment of Commission decision of 9 January 2009 ordering them to submit to an inspection in accordance with article 20(4) of Regulation No 1/2003 as well as the way in which it was executed. In the context of an investigation the (...)
The EU General Court curtails Commission’s powers to dawn raid companies for suspected competition law infringements (Nexans)
I. The Parties
Nexans SA and its wholly-owned subsidiary Nexans France SAS – are two French companies which carry out their activities in the electric cable sector.
II. The Facts
The EU Commission (hereinafter “the Commission”) received information via leniency applications that electric (...)
The EU General Court hands down a judgment concerning the Commission’s power when conducting dawn raids (Nexans)
The Court of Justice of the European Union (General Court) handed down a judgment on 14th December 2012 in Nexans v Commission case concerning the power of the Commission to conduct dawn raids. The judgment confirmed that the Commission does not have the power to conduct “fishing expeditions” (...)
The EU Court of Justice establishes rules of procedure
The European Court of Justice ("ECJ") has adopted new rules of procedure, replacing previous rules that had remained largely untouched since their adoption in 1953. The goal of these changes is to speed up ECJ proceedings, but these new rules may also reduce transparency and undercut parties’ (...)
The US District Court for the Eastern District of New York authorizes disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges (Air Cargo Shipping Services)
The U.S. magistrate judge in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges has authorized disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation conducted earlier by the U.S. Department (...)
The EU General Court establishes a demanding standard for the duty to give reasons in procurement cases (Sviluppo Globale GEIE)
Duty to give reasons under EU procurement law and EU trademark law: is there a contradiction?*
Even if they may seem two – rather disconnected – areas of legal practice, reading cases on EU public procurement and on EU trademark law sometimes offers interesting insights into broader issues (...)
The EU General Court issues a decision concerned with the extent of the duty to provide reasons to disappointed tenderers (Sviluppo Globale GEIE)
Again on procurement debriefing and its excesses: Extent of the duty to give (very detailed) reasons to bidders and right to a fair trial (T-183/10)*
In its Judgment of 10 October 2012 in case T‑183/10 Sviluppo Globale GEIE v Commission, the General Court has issued a new decision concerned (...)
The President of The Hague District Court holds that the Dutch Competition Authority cannot engage in "fishing expeditions"
On 5 October 2012, President of The Hague District Court ruled in interim proceedings that the Dutch Competition Authority (“NMa”) cannot order third parties to provide information incriminating undertakings against which the NMa has insufficient information to initiate competition law (...)
The EFTA Court establishes that when no judicial remedies is provided under national law, an advisory opinion in compliance with their duty of loyalty can be requested (Irish Bank Resolution / Kaupthing Bank)
Case E-18/11: Small steps towards a preliminary reference procedure for the EEA EFTA countries?*
The EFTA Court handed down an interesting decision in September 2012 which merits a short comment. The Surveillance and Court Agreement of the EEA EFTA countries does not foresee a procedure akin (...)
The EU Court of Justice dismisses an appeal and rules that in-house lawyers should not be permitted to appear before EU courts (Polish Electronic Communications Office)
Introduction
On 6 September 2012 the Court of Justice of the European Union (ECJ) upheld an earlier decision of the General Court (formerly the Court of First Instance) in the Prezes Urzedu Komunikacji Elektronicznej case that in-house lawyers cannot represent their client companies before (...)
The Osaka District Court orders the Japan FTC to submit documents concerning a shareholder derivative suit (Sumitomo Electric)
On July 15, 2012, the Osaka District Court ordered the Japan Fair Trade Commission (the “JFTC”) to submit (i) written statements of employees of Sumitomo Electric Industries (“Sumitomo Electric”) and (ii) Sumitomo Electric’s report to the JFTC in relation to the shareholder derivative suit (...)
A Czech Court confirms that phone recordings may be lawfully used as evidence in antitrust proceedings (Husky)
Introduction
In April 2012 the Regional Court in Brno confirmed the decision of the Czech Office for Protection of Economic Competition (“Czech Competition Authority”) fining HUSKY CZ for resale price maintenance. Based on the findings of the Czech Competition Authority, HUSKY CZ set the (...)
The Maltese Competition and Consumer Appeals Tribunal rejects the Competition Authority’s claim to be a party in proceedings but allows it to a limited right for attending and participating (Joe Mizzi)
In terms of Article 13A of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ’MCA’), the Director General (Competition) (hereinafter referred to as ’Director’) applied to the Competition and Consumer Affairs Tribunal (hereinafter referred to as ’Tribunal’), (...)
The Paris Court of Appeal sets aside secret tape recordings and all related elements in competition law proceedings (Avantage / Sony / Philips)
On 16 February 2012, the Paris Court of Appeal finally endorsed a judgment of the French Supreme Court of 7 January 2011, according to which tape recordings of conversations made without the participants’ knowledge constitute inadmissible evidence in competition law proceedings. The (...)
The Portuguese Constitutional Court confirms position of Competition Authority regarding oral hearings (A, B, C, D, E and F)
Portugal: The Constitutional Court confirms Position of Portuguese Competition Authority regarding Oral Hearings*
On 8 February 2012, the Constitutional Court issued a ruling whereby it concluded that it is not unconstitutional to interpret article 26(2) of the Portuguese Competition Act in (...)
An Italian Administrative Court clarifies the boundaries of third parties’ right to access the file in antitrust matters (Alitalia)
With its judgment of February 2, 2012, the Tribunale Amministrativo del Lazio (i.e. the lower Italian administrative Court which adjudicates appeals against decisions issued by the Autorità Garante della Concorrenza e del Mercato, «IAA«) clarified the boundaries of third parties’ right to (...)
The EU Court of Justice upholds the judgments of the General Court and the Commissions decisions relating to the two cartels in the copper industrial and copper plumbing tubes sectors and confirms the unlimited jurisdiction of the Courts in relation to the amount of fines (Chalkor) (KME)
The Court of Justice upholds the judgments of the General Court and the Commission’s decisions relating to the two cartels in the copper industrial and copper plumbing tubes sectors*
The review carried out by the General Court in respect of Commission decisions imposing fines in competition (...)
The Paris Commercial Court allows the production of documents that are necessary for the rights of defence (Outremer Telecom / Orange Caraïbe / France Télécom)
Background
On 9 December 2009 the French Competition Authority fined Orange Caraïbe and France Telecom in the amount of EUR 63 million for having abused their dominant position on the market of mobile telephony or fixed telephony in French Caribbean. This decision was partially overturned (...)
The EU Court of Justice annuls fines imposed on Belgian chemicals company for anticompetitive conduct due to a breach of essential procedural requirements (Solvay)
European Court of Justice annuls antitrust fines due to a breach of essential procedural requirements*
On October 25th, 2011 the European Court of Justice annulled antitrust fines that were imposed on the company Solvay by the European Commission in the year 2000 (and approved by European (...)
The EU Commission reforms antitrust procedures and expands role of hearing officer
European Commission reforms Antitrust Procedures and expands Role of Hearing Officer*
On 17 October 2011, the European Commission adopted a package of measures aimed at increasing interaction with parties in antitrust proceedings and strengthening the mechanisms for safeguarding parties’ (...)
The Paris Court of Appeal rejects an appeal lodged against the conditions of search and seizure operations conducted by the Competition Authority at the premises of a leading international group in the transport and delivery service sector (TNT Express)
On October 4, 2011, the delegate of the first President of the Paris Court of Appeal issued three orders relating to competition search and seizure operations conducted by the French National Competition Authority (the «NCA«) at the premises of TNT Express and TNT Express France («TNT«), SARL (...)
The EU Court of Human Rights confirms that the Italian antitrust fining regime is compatible with human rights (Menarini)
On 27 September 2011 the European Court of Human Rights (ECHR or the Court) ruled the Italian system of antitrust sanctions to be compliant with the law of fundamental rights.
Specifically, the ECHR deemed the Italian system, consisting of a decision by the Italian Competition Authority (...)
The Dutch Trade and Industry Appeals Tribunal confirms that separation of functions must be applied within administrative authority (ETB)
1. Facts and procedure
Following an extensive investigation into fraud and anticompetitive practices in the Dutch construction sector, the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, hereinafter "NMa") imposed a fine on ETB Vos B.V. (hereinafter "ETB") for infringing (...)
The US Supreme Court reverses class action certification raising hurdles for antitrust collective redress cases (Wal-Mart Stores / Dukes)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On June 20, 2011, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court handed down its decision holding that discrimination claims on behalf of (...)
The French Criminal Supreme Court takes side in favour of the admissibility of the appeal by the Rapporteur général of the Competition Authority in a case concerning emails seizure (Orange)
House searches carried out by the French competition authority (“Autorité de la concurrence”), a shared prerogative since 2009 with the Ministry of Finance & Economy (“DGCCRF”), are in principle governed by the Code of Criminal procedure. Furthermore, it has been held by the Supreme Court (...)
The Belgium Supreme Court rules on the exact scope of the "full jurisdiction" of the Brussels Court of Appeal in competition cases (Honda)
1. Background
Complaints and decision of the Belgian Competition Council
Further to complaints lodged by twelve independent distributors of motorcycles before the Belgian Competition Council, five official importers of motorcycles (Honda, Suzuki, Ducati, Yamaha and Kawasaki) were condemned (...)
The EU Competition Commissioner Almunia proposes changes to the Commission’s procedural practice in antitrust investigations
On 30 May 2011, Competition Commissioner Joaquín Almunia announced a number of modifications he intends to introduce to the procedural rules governing antitrust proceedings before the Commission. The contemplated modifications concern DG Competition’s procedural Best Practices and the revision (...)
The Maltese Parliament creates the Competition Authority and makes amendments to the Competition Act
Malta: The Office for Competition becomes part of a wider Authority and significant Changes are made to the Competition Act*
On 23 May 2011, the Malta Competition and Consumer Affairs Authority Act 2011 (the Act) entered into force. The Act provides for the establishment of the Malta (...)
The Brussels Court of Appeal requests the Supreme Court to rule on use of languages in competition proceedings
In a judgment of 3 May 2011, the Brussels Court of Appeal has requested the Supreme Court (Hof van Cassatie/Cour de Cassation) to give a preliminary ruling on questions relating to the use of languages in proceedings before the College of Competition Prosecutors.
The case concerns a (...)
The Chinese Supreme Court issues rules on Private Actions under the Anti-Monopoly law
On 25 April 2011, the Supreme People’s Court of China (the “SPC”) published on its website a draft of the long-awaited Provisions by the Supreme People’s Court on the Issues Regarding the Application of Law in Handling Anti-monopoly Civil Litigation Cases (the “Provisions”) for public (...)
The Chinese Supreme Court issues judicial interpretation on antimonopoly civil procedure
The Supreme Court Issued Judicial Interpretation on the Anti-monopoly Civil Procedure*
On April 25th, the Supreme Court issued Provisions On a Number of Issues Applicable to the Trial of Monopoly Civil Dispute Cases (the “Exposure Draft”) for public comments. Totalling 20 articles, (...)
The Belgian Competition Authority finds breach of due process in confectionary cartel investigation (Ferrero)
In a recently published decision of 7 April 2011, the Belgian Competition Council found that the rights of defence of companies, investigated for alleged coordinated price increases in the confectionary sector, had been infringed.
In April 2008, the College of Competition Prosecutors opened (...)
The Belgian Competition Authority dismisses a claim from the Prosecutor concerning a coordinated price increase due to the non-respect of the rights of the defence (Ferrero)
1. The Parties
The present procedure was launched at the initiative of the Competition Prosecutor who opened an office instruction after having detected serious indications of concerted practices in the food industry.
The following companies are targeted: Ferrero SA (hereinafter: Ferrero), (...)
The UK Competition Authority announces the trial of an adjudicator role to resolve disputes on procedural issues to speed up investigations under the Competition Act 1998
United Kingdom: Trialling of Procedural Adjudicator at the Office of Fair Trading (OFT)*
Alongside its procedural guidance, the OFT also announced the trial of a new adjudicator role to resolve disputes on procedural issues, as part of a drive to speed up investigations under the Competition (...)
The Spanish Competition Authority fines a manufacturer of office supplies for obstructing an inspection carried out at its head office (Grafoplas)
On March 1, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined GRAFOPLAS DEL NOROESTE, S.A. (“GRAFOPLAS”) €161,600 for obstructing an inspection carried out at its head office.
Background
GRAFOPLAS is a prominent Spanish manufacturer of office (...)
The Polish Competition Authority proves again that obstruction of an inspection does not pay off and imposes a record-breaking penalty of €33 million for its obstruction (Polkomtel)
An inspection of Polkomtel S.A’s ("Polkomtel" or the "Company") premises took place on 2 December 2009 as part of a number of simulataneous dawn raids carried out by the President of the Office of Competition and Consumer Protection (the "OCCP") as part of its investigation into mobile (...)
The Spanish Competition Authority fines an association for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics sector (STANPA)
On February 7, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia, the “CNC”) fined Asociación Nacional de Perfumería y Cosmética (“STANPA”) €901,518.16 for exchanging commercially sensitive information capable of restricting competition in the perfume and cosmetics (...)
The EU General Court dismisses a leading low cost airline’s action for annulment of Commission decisions rejecting access to documents (Ryanair)
On 10 December 2010, the General Court rejected a series of claims for annulment brought by Ryanair against implied decisions of the Commission refusing access to documents relating to State aids allegedly granted to Ryanair by several airports.
Ryanair sought mainly access to the complaints (...)
The French Court of Cassation quashes a ruling of the Paris Court of Appeal that had annulled a Competition Authority decision for excessive duration of the investigation procedure (Luxury perfumes)
A new development has arisen in the luxury perfumes case. The Paris Court of Appeal, ruling on a referral back to it from the Court of Cassation, had exceptionally annulled a Competition Council (now Competition Authority) decision for excessive duration of the investigation procedure . This (...)
The Paris Court of Appeal reviews the legality of searches and seizures of electronic documents during dawn raids
Called upon to review the practice of untargeted searches and seizures of digital data by the investigators of the French Competition Authority, a judge delegated by the President of the Paris Court of Appeal (the "President’s delegate") recently stayed proceedings and requested an expert (...)
The Luxembourg Government issues a proposal to amend the Competition Act and to merge the two Competition Authorities of the country
In 2007 the Minister of Economy filed on behalf of the Luxemburg government a law proposal to the Luxembourg Parliament (Chambre des députés) to amend the 2004 Competition Act (Loi du 17 mai 2004 relative à la concurrence). The proposal in essence aims to integrate the Competition Inspection (...)
The England & Wales Court of Appeal rejects claims of apparent bias in the supply of airport services market investigation (BAA / Ryanair)
The UK Court of Appeal recently rejected claims made by BAA that the Competition Commission’s Report into the common ownership of the UK’s main airports was tainted by apparent bias. One member of the Competition Commission’s inquiry group had indirect links to a potential bidder for one of (...)
The EU Competition Commissioner speaks on due process and competition enforcement underlining the importance of judicial review by European Courts
The scope of judicial review in question*
In a speech delivered on 17 September 2010 at the IBA annual competition conference, Commissioner Almunia engaged the audience on the sensitive topic of due process and competition enforcement. Among the reasons justifying his overall satisfaction (...)
The EU Court of Justice rules that legal professional privilege does not cover communications between in-house lawyers and other employees at a company (Akzo Novel Chemicals)
INTRODUCTION
On 14 September 2010, the Court of Justice, the highest court in the European Union (“EU”), ruled that, in the context of EU competition law investigations, legal professional privilege (“LPP”) does not cover communications between in-house lawyers and other employees at a (...)
The EU Court of Justice confirms that communications with an in-house lawyer are not legally privileged (Akzo Nobel)
1. Following approximately seven years of extended litigation, discussed in previous issues of Concurrences the last phase of the Akzo litigation relating to the personal scope of legal professional privilege ("LPP") has finally come to an end with the European Court of Justice’s ("ECJ") (...)
The EU Court of Justice confirms that legal professional privilege under EU law does not extend to communications with in-house lawyers (Akzo Nobel)
Background
In February 2003, the Commission, with the assistance of the UK’s Office of Fair Trading, conducted a dawn raid at the UK premises of Akzo Nobel and Akcros Chemicals on suspicion of possible anti-competitive practices. During the raid, a dispute arose between the investigation (...)
The EU Court of Justice holds that in-house lawyers are not protected by legal professional privilege in antitrust investigations (Akzo)
On September 14, 2010, the Court of Justice (the Court) issued its judgment in Akzo v. Commission (Case C-550/07 P, hereinafter the Judgment) dismissing an appeal brought by Akzo Nobel Chemicals Ltd. (Akzo) against a judgment of the Court of First instance (now the General Court) of September (...)
The US District Court for the Eastern District of New York admits the confidentiality of documents emanating from the EU Commission’s investigation (Visa / MasterCard)
European Commission: Recent Developments on Discovery following Amicus Curiae*
On 27 August 2010, the US District Court of the Eastern District of New York, Judge John Gleeson, on appeal issued an order whereby access by the plaintiffs to a Statement of Objections and to a transcript of an (...)
The Czech Constitutional Court rules that an inspection at the business premises of a company does not require prior judicial authorization (Delta Pekarny)
Introduction
On 26 August 2010 the Czech Constitutional Court rendered a judgment whereby it rejected as manifestly ill-founded a constitutional appeal of business company Delta Pekarny (one of the largest companies on the bakery market in the Czech Republic) against the judgment of the (...)
The Dutch Competition Authority adopts guidelines on dawn raids
On 16 August 2010, the Dutch Competition Authority (the “NMa”) published new guidelines on dawn raids. These guidelines were adopted after a consultation round among stakeholders held at the beginning of 2010. These guidelines amend and replace the NMa‘s former guidelines on dawn raids of (...)
The EU Court of Justice sets aside the first judgment of the General Court annulling a commitment decision and dismisses breaches of the principle of proportionality and due process standards by the Commission (Alrosa)
Alrosa, negotiated procedures and the procedural economy/due process conundrum – one step forward, three steps back?*
Friends of the blogosphere: greetings!
There was something refreshing in the judgment rendered in 2007 by the General Court (GC) in the Alrosa case (T-170/06). If somewhat (...)
The Austrian Supreme Court holds that records from competition proceedings cannot be withheld from the public prosecutor in a following criminal proceeding on the grounds of protecting trade secrets according to the Anti-Cartel Act (Elevator cartel)
Background:
Following on from the elevator cartel case («Aufzugskartell»), in which the involved undertakings were fined 25 million Euros for breaching Art 81 ECT (Art 101 TFEU), the public prosecutor («Staatsanwaltschaft Wien») brought proceedings against a number of involved persons (...)
The Paris Court of Appeal defines and applies a demanding standard of proof for justification of dawn raids targeting press groups (Amaury)
Dawn raids vs. the freedom of the press*
Relying on what seems to be unprecedented reasoning, the President of the Paris Court of Appeals has quashed a judicial order authorizing a dawn raid against several companies belonging to Amaury, a French news group that publishes mainly sports (...)
The EU General Court imposes a high burden on the Commission to refuse access to its confidential records (Editions Odile Jacob)
On June 9, 2010, the EU’s General Court (Court) issued its judgment on an appeal by Editions Odile Jacob (EOJ) against a decision by the European Commission (the Commission) refusing to disclose certain documents relating to the Commission’s review under the EC Merger Regulation of the (...)
The Paris Court of Appeal applies the EU "harmless error rule" in a commitment procedure where a party has been denied full access to the French Competition Authority’s file (Canal 9)
The harmless error rule and the French commitment procedure*
Merely one month before the ECJ delivered its very expected judgment in the Alrosa case, a ruling of the Paris Court of Appeals confirmed that the exercise of the rights of the defense in commitment procedures raises delicate (...)
The US Supreme Court shows in its recent antitrust decisions a concern about the burdens of US litigation process (Stolt-Nielsen / AnimalFeeds)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process*
Many of the most important U.S. judicial decisions in antitrust have been driven by judicial concern with aspects of the U.S. litigation process that are perceived by some to impose excessive (...)
The Japanese Government proposes to reform the Fair Trade Commission’s hearing procedure for antitrust violations
The Japanese government has proposed significant changes to the procedures for challenging orders issued for antitrust violations by the Japanese Fair Trade Commission (JFTC). The Cabinet submitted a bill of amendments to the Antimonopoly Act (AMA) to the House of Representatives (Shugiin) on (...)
The Luxembourg Administrative Court dismisses the appeal of the state of Luxembourg and confirms the annulment of the decisions imposing interim measures against national incumbent telecom operator (P&T)
1. Facts
Several telecommunications companies introduced a complaint for abuse of dominant position against “Entreprise des Postes et Télécommunications” (hereafter “P&T”) to the Luxembourg Competition Inspectorate. The latter requested the President of the Luxembourg Competition Council (...)
The OECD holds a roundtable on procedural fairness: issues in civil and administrative enforcement proceedings
The roundtable discussion highlighted the importance of transparency and procedural fairness for the parties involved in competition proceedings, as well as for efficient and effective case management by the competition authority. Delegates observed that an established and predictable (...)
The EU Commission publishes documents on best practices in competition law enforcement and on the role of the hearing officers
European Commission: Best practices improve Transparency and Predictability of Proceedings
In order to further enhance the transparency and the predictability of Commission antitrust proceedings, detailed explanations concerning how European Commission antitrust procedures work in practice (...)
The Bratislava Regional Court confirms strict criteria that courts have on the reasoning of decisions of the Competition Authority (Slovnaft)
Factual background
Regional Court Bratislava (“Court“) overruled, in its judgment dated 15 December 2009, two decisions of the Slovak Antimonopoly Office (the “AMO”), namely the first instance decision No. 2006/DZ/2/1/140 dated 22 December 2006 and the appellate decision No. 2007/DZ/R/2/102 (...)
The Spanish Supreme Court passes an important judgment concerning the violation of the right to rely on all relevant evidence in an antitrust case (SOS Cuetara)
Introduction
On 10 December 2009, the Spanish Supreme Court (Tribunal Supremo) passed an important judgment concerning the limits of the notion of due process under Spanish law. In particular, the Supreme Court shed some light on the consequences of the violation of the right to rely on all (...)
The Spanish Supreme Court’s ruling on the breach of the rights of defence of a company subject to a competition investigation improves due process (SOS Cuetara)
This judgment marks the end of a case which began in April 2005, when the Spanish Competition Authority (ANC) opened an investigation into the Spanish olive oil market following a complaint from a consumer protection association. A number of food distributors and a major olive oil producer (...)
The Hungarian Supreme Court defines the extent of client-attorney privilege in competition proceedings
In December 2009 the Supreme Court published a significant individual decision (under No. BH 2009.364), in which it confirmed that communication between client and attorney, even if occurred before the initiation of the respective competition proceedings by the HCO, may still be subject to (...)
The Paris Court of Appeal overturns a decision of the Competition Authority for excessive duration of the proceedings for the first time (Perfumes)
In a ruling dated 10 November 2009, the Paris Court of Appeal overturned a decision of the national competition authority (the "Authority") for excessive duration of the proceedings for the first time. This decision of the Authority related to alleged anticompetitive practices by several (...)
The Czech Regional Court in Brno sets a deadline for the decision of the Competition Authority due to its inaction (Sokolovská)
On 3 November 2009, the Regional Court in Brno (the “Court”) issued a judgment in which it ordered the Czech Competition Office (the “Office”) to issue a final decision in its investigation regarding the alleged breach of competition rules by Sokolovská uhelná, právní nástupce, a.s. (...)
The Paris Court of Appeal holds that, in compliance with the adversarial principle, the parties to the commitments procedure shall have access to all documents which the case handler had drafted its preliminary assessment (Canal 9 / Les Indépendants)
Following the quashing of its first decision , the Paris Court of Appeal held, in the present decision , that in compliance with the adversarial principle, the parties to the commitments procedure shall have access to all documents on the basis of which the French Rapporteur (the “case (...)
The Spanish Court of Appeal issues a decision that renders illegal some of the Competition Authority’s inspection practices (CNC)
Spanish Court of Appeal strikes down CNC’s Inspection Practices*
The Audiencia Nacional (‘AN’) – i.e. the Spanish Court in charge of the review of decisions adopted by the Spanish National Competition Commission (‘CNC’) – recently delivered an important judgment quashing some of the CNC’s (...)
The England & Wales High Court criticizes the Office of Fair Trading for violating the principles of equal treatment and fairness in a "fast-track” settlement procedure (Crest Nicholson)
The Office of Fair Trading (OFT) was found to have violated the principle of equal treatment and procedural fairness in its construction cartel investigation when it disregarded that Crest Nicholson, a former parent company of a construction firm accused of bid rigging, was unable to accept in (...)
The Bulgarian Supreme Administrative Court discusses in detail the legal consequences of failure to comply with the obligation to inform the EU Commission (Insurance Cartel)
Abstract: The case provides an useful illustration of the impact the national institutional and procedural autonomy principle may have on the present EU antitrust enforcement system. Indeed, since Regulation 1/2003 is directly applicable within the national legal orders and consequently the (...)
The Russian Constitutional Court confirms the constitutionality of certain provision of the Competition Law regulating the powers of the national competition authority (Gazenergoset / Nizhnekamskneftkhim)
In 2006 two companies, applicants in the present case, OAO “Gazenergoset” and OAO “Nizhnekamskneftkhim” have been found in violation of the competition law. Russian Competition Authority (Федеральная Антимонопольная Служба) (FAS) found that undertakings concerned participated in the concerted (...)
The Paris Court of Appeal opposes the Supreme Court on the admissibility of evidence obtained without the knowledge of the companies under investigation (Avantage / Sony / Philips)
On 29 April 2009, the Paris Court of Appeal dismissed for the second time the appeal of Philips and Sony against a decision of the Competition Council in 2005 condemning an agreement between the two companies and their respective distributors. In so doing, the Court of Appeal expressed its (...)
The EU Court of Justice Advocate General Bot proposes to annul General Court’s ruling on rights of defence in carbonless paper cartel appeal (Papierfabrik August Koehler)
On 2 April 2009, Advocate General Bot issued his opinion in the appeal against the judgment of the CFI in the carbonless paper cartel case. This judgment upheld a Commission decision of December 2001, which found that eleven undertakings had infringed Article 81 EC by participating in a series (...)
The Hungarian Constitutional Court quashes rules introducing director disqualification
The Hungarian Constitutional Court declares new rules on director disqualification unconstitutional as the procedure leading to the imposition of the sanction violates the right to a fair trial. Due to the constitutional defect of the procedure, director disqualification will not become (...)
The Romanian Constitutional Court confirms the constitutionality of provisions relating to the investigative and decision-making powers of the Competition Authority (Astral Impex / Gabi’s / BDM)
Summary
Addressing the challenge of constitutionality of certain provisions of the Competition Law regulating the investigative and decision-making powers of the Competition Council, the Romanian Constitutional Court adhered to its preceding jurisprudence and dismissed the applicants’ (...)
The English High Court rules on the right of the Competition Authority to close a competition act investigation due to resource constraints (Cityhook)
Background
Cityhook Limited ("Cityhook") was founded in 1999 by three British engineers to exploit a patented technology invented by one of its founders. The patented technology consisted of a foreshore ducting system for drilling a tunnel under the foreshore and sea-bed to enable the (...)
The Dutch Trade and Industry Appeals Tribunal holds that Art. 6 ECHR implying a foreign language defendant has the right to translations of all documents necessary to prepare its defence in a Dutch antitrust procedure (North Sea Shrimps II)
Background
On 19 January 2009, the Dutch Trade and Industry Appeals Tribunal (the "CBb") ruled on two joint cases in which both a number of producer organisations and the Netherlands Competition Authority (the "NMa") had appealed decisions of the District Court Rotterdam (Rechtbank (...)
The US FTC issues interim final rules governing trials held before the EU Commission
On December 23, the Federal Trade Commission published a set of interim final rules governing trials held before the Commission. The interim final rules incorporate most, but not all, of the rules changes first proposed by the FTC in October 2008. The interim final rules are likely to have a (...)
The Swiss Supreme Court rules on legal privilege in a cartel conducted by road transports and warehousing companies (Panalpina)
On October 28, 2008, the Swiss Supreme Court finally dismissed the claim from several companies which had been subject to dawn raids and opposed the use by the Swiss Competition Commission (“Comco”) in a cartel investigation of certain internal documents issued for or by in-house counsel on (...)
The Spanish Competition Authority launches dawn raids giving rise to controversy over defense rights (Colgate Palmolive España / L’Oreal / Stanpa)
The entry into force of the new Spanish leniency program has significantly stepped up cartel investigations undertaken by the Spanish Competition Authority (hereinafter “CNC”). Under the new regulatory framework enacted by the Spanish Competition Act in July 2007, the CNC has initiated 48 (...)
The EU General Court rejects damages claim for losses suffered as a result of the annulment of the Commission’s decision to prohibit a merger (MyTravel)
On 9 September 2008, the Court of First Instance ("CFI") dismissed in its entirety the damages action brought by MyTravel (formerly Airtours) for losses resulting from its inability to complete its bid for First Choice as a result of the Commission’s prohibition of the Airtours/First (...)
The Dutch Trade and Industry Appeals Tribunal confirms that a fair and public hearing within a reasonable time can be interpreted as a period of up to two years or longer in an antitrust procedure (Aesculaap)
Introduction
The Aesculaap case concerns an infringement of Article 6 of the Dutch Competition Act ("Mw") on the grounds that AUV - the procurement collective and wholesaler of veterinary pharmaceuticals -, and Aesculaap - the only other wholesaler of veterinary pharmaceuticals - had adopted (...)
The EU General Court provides guidance on the presumption of innocence and quashes the Commission’s decision for publishing a non-confidential version of a decision on a cartel in the chemical industry (Pergan Hilfsstoffe)
THE COURT OF FIRST INSTANCE ANNULS THE DECISION REFUSING CONFIDENTIAL TREATMENT FOR THE PUBLISHED VERSION OF A COMMISSION DECISION ON CARTELS*
For the Commission to be entitled to disclose to the public the details of an undertaking’s infringement in respect of which proceedings are time (...)
The US Supreme Court shows to be driven by concerns with burdens of national litigation process according to recent antitrust decisions (Bell Atlantic / Twombly)
U.S. Antitrust Decisions Frequently Driven by Concerns With Burdens of U.S. Litigation Process*
Welcome to our blog! I thought I would start my postings on U.S. developments with a broader point about recent U.S. case law in the antitrust area. Many of the most important U.S. judicial (...)
The EU Court of Justice maintains fines set by the EU Commission in a specialty graphite cartel case and rejects pleas alleging infringement of rights of defence (SGL Carbon)
Competition: Commission welcomes Court of Justice judgment in specialty graphite cartel case
The European Commission welcomes today’s judgment by the European Court of Justice (case C-328/05) dismissing the action by the German specialty graphite producer SGL Carbon AG against the judgment (...)
The Lisbon Court of Commerce quashes decisions fining pharmaceutical companies on procedural grounds (Abbot / Bayer / Johnson & Johnson / Menarini / Roche)
In its judgement of 26 March 2007 the Lisbon Court of Commerce (the “Court”) quashed on procedural grounds two decisions adopted by the Portuguese Competition Authority (the “PCA”) fining five pharmaceutical companies (Abbot, Bayer, Johnson & Johnson, Menarini and Roche). The PCA had found (...)
The Spanish Competition Authority enhances the procedural rights of the defendants in national antitrust procedures (Banco Santander / Cheques comida)
On March 15th, 2007 the Tribunal de Defensa de la Competencia (TDC, highest branch of the Spanish antitrust authority) has concluded that defendants in national antitrust procedures are entitled to receive the essential content of all complaints lodged against them as soon as they are (...)
Maltese competition law and human rights: some insights
Synthesis
The following is the fruit of the author’s experience in preceding over the Commission for Fair Trading of Malta since its inception. The analysis attempts to identify gaps and other short-comings in the existing regime with an eye on issues relating to Human Rights.
I. PROPER (...)
The Czech Competition Authority releases a controversial draft about access to documents containing business secrets
In August 2006, the Czech Office for the Protection of Competition presented to the interested public a draft amendment to the Czech Act on the Protection of Competition. Apart from other less important issues, the draft provides specific rules on the treatment of documents obtained by the (...)
The Czech Competition Authority annuls on appeal its earlier decision invalidating the vehicle distribution agreements concluded between a car manufacturer representative and authorised dealers due to breach of defence rights (AuTec / BMW)
By the decision of 30 June 2006 rendered on appeal the President of the Office for the Protection of Competition (hereafter the “Office”) set aside the Office decision invalidating the vehicle distribution’s contracts and servicing agreements concluded between AuTec Group, a.s., the (...)
The Paris Court of Appeal sets the power boundaries of the Competition Authority to refer a case to a criminal court (Stal / Ernée Viandes)
Article L. 420-6, paragraph 1, of the Commercial Code creates the infraction applicable to individuals having taken part in an anticompetitive practice. This article states: “ If any natural person fraudulently takes a personal and decisive part in the conception, organisation or (...)
The Hungarian Parliament "modernizes" the Hungarian Competition Act (HCA)
Note
In 2005 important provisions of the Hungarian Competition Act (hereinafter “HCA”) were amended . Also, new rules about the criminalisation of certain collusions in public procedures were incorporated into the Hungarian Criminal Code . 1. The system of individual exemptions was (...)
The EU General Court annuls a decision of the Commission and confirms the obligation to carry out concrete, individual examination when access to documents is requested (Verein für Konsumenteninformation)
THE COURT ANNULS A COMMISSION DECISION REJECTING IN ITS ENTIRETY A REQUEST FOR ACCESS TO THE ADMINISTRATIVE FILE IN A COMPETITION CASE CONCERNING AUSTRIAN BANKS*
Concrete, individual examination of the documents referred to in a request for access is one of the elementary duties of an (...)
The Latvian Supreme Court confirms Competition Authority’s decision of fining loyalty discounts practices in the food retailer sector (Latfood)
Latfood, previously being in a dominant position, loses a case
The 22 March 2005 decision of the Department of Administrative Cases of the Supreme Court Senate closed the proceedings in respect of the 14 November 2001 decision of the Competition Council of the Republic of Latvia on imposing (...)
The Czech Competition Authority refers to Art. 8 ECHR in defining the scope of its investigative powers (Delta / Odkolek - Penam)
This contribution provides a summary of the Czech Competition Office first-instance and appellate decisions addressing the limits to the right to privacy in the context of the Office’s investigation conducted in the business premises of an undertaking suspected of having infringed competition (...)
The EU General Court reduces the fines on steel tube producers and clarifies the Commission’s powers in the context of the geographical scope of infringement (JFE / Nippon / Sumitomo)
THE COURT OF FIRST INSTANCE REDUCES THE FINES IMPOSED BY THE EUROPEAN COMMISSION ON STEEL TUBE PRODUCERS BY 13 MILLION EUROS
The Commission was unable to produce evidence covering the entire duration of the infringement
By a decision of 8 December 1999, [1] the European Commission (...)
The EU Council publishes its regulation and calls for cooperation among the National Competition Authorities in the European Competition Network
1.The adoption of Regulation (EC) n° 1/2003 has undoubtedly encouraged the National Competition Authorities ("NCA") to be more eager in their application of Community law. This eagerness has been fuelled by a number of factors. Article 3§1 of Regulation n° 1/2003 requires that the NCAs apply (...)
The Dutch Competition Authority imposes fines on company for refusal to allow the interview of certain employees (Heijmans Beton- en Waterbouw)
NMa Fines Heijmans for Refusal to Co-operate*
The Netherlands Competition Authority (NMa) has imposed a fine of three times EUR 4,500 (four-thousand-five-hundred euros) on Heijmans Beton- en Waterbouw for its refusal to allow NMa to interview certain of its employees. This is the maximum (...)
The Spanish Tribunal for the Defence of Competition defines the scope of protection of legal privilege (Pepsi-Cola / Coca-Cola)
The Tribunal de Defensa de la Competencia (TDC) issued on 22 July 2002 a decision in which it established that documents created by companies in the context of their defence in competition proceedings before the European Commission did not have to be delivered to the Servicio de Defensa de la (...)
The EU Court of Justice rejects the appeal brought by producers of carton board in a cartel case (Cartonboard cartel)
THE COURT OF JUSTICE RULES ON THE 10 APPEALS BROUGHT BY UNDERTAKINGS AGAINST THE JUDGMENTS OF THE COURT OF FIRST INSTANCE IN THE "CARTONBOARD" CASES*
On 13 July 1994 the Commission imposed fines totalling 131 750 000 ecus on 19 producers of cartonboard on the ground that they had infringed (...)
The EU General Court confirms the Commission decision fining twelve participants in a PVC cartel and rejects claims on procedural errors (Limburgse and others)
THE COURT OF FIRST INSTANCE GENERALLY CONFIRMS THE COMMISSION DECISION FINING 12 PVC PRODUCERS FOR PARTICIPATING IN AN ILLEGAL CARTEL*
However, the Commission fines totalling 19 250 000 euros are reduced in respect of three undertakings
In October 1983, following investigations conducted (...)
The EU Commission adopts a regulation on the hearing of parties in certain proceedings under Art. 85 and 86 of the EC Treaty
"New procedures for anti-trust cases: hearings, and notification of transport cases"*
Background
One of the underlying objectives of the current legislative activities of the Commission is to modernise, simplify and make more user-friendly the procedures under which competition cases are (...)
The EU Court of Justice applies the reasonable time rule and reduces fine imposed by the Commission on producers of welded steel mesh for anticompetitive agreements (Baustahlgewebe)
THE COURT OF JUSTICE APPLIES "REASONABLE TIME" RULE AND REDUCES FINE IMPOSED ON COMPANY
The Court of Justice considered that a reduction by ECU 50 000 of a fine of ECU 3 million imposed on an undertaking for breach of the competition rules constituted a "fair satisfaction" for the excessive (...)
The EU General Court confirms the Commission’s decision requiring a French bank to supply information concerning the fee charged when processing foreign checks (Société Générale)
Judgment Of The Court Of First Instance Of 8 March 1995 (T-34/93) Société Générale - v- Commission*
In this case the applicant, Société générale (SG), sought the annulment of Commission decision C(93)746 of 1 April 1993 which, pursuant to Article 11(5) of Regulation N° 17, required SG to (...)
The EU Court of Justice states that the Commission shall inform undertakings and associations of undertakings in writing of the objections raised against them to enable persons whose interests are perceptibly affected by a decision to make their point of view known (Transocean Marine Paint Association)
JUDGMENT OF THE COURT OF 23 OCTOBER 1974
Transocean Marine Paint Association v Commission of the European Communities
Case 17/74*
1. The obligation imposed upon the Commission by Articles 2 and 4 of Regulation No 99/63 to inform an undertaking, in writing or by giving notice in the (...)
Regulatory
The EU Commission publishes its draft DMA Implementing Regulation for consultation, together with the proposed notification form for "gatekeepers"
On 9 December 2022, the European Commission published its draft DMA Implementing Regulation for consultation, together with the proposed Notification Form for "gatekeepers". The text deals with notifications, submissions and practical arrangements in relation to future Commission decisions (...)
The EU Commission publishes its draft Implementing Regulation of the Digital Markets Act
On 9 December 2022, the European Commission (“Commission”) published a Draft Implementing Regulation on detailed arrangements for the conduct of certain proceedings by the Commission pursuant to Regulation (EU) 2022/1925 (“Draft Implementing Regulation”). The Draft Implementing Regulation (...)
The EU Commission opens public consultation on the draft Implementation Regulation which aims to facilitate the implementation of the Digital Markets Act
The Digital Markets Act (“DMA”) will apply from 2 May 2023. To facilitate its implementation, the European Commission (“Commission”) aims to publish an accompanying DMA Implementing Regulation (“IR”). In anticipation of this, the (“Commission”) has sought feedback via a public consultation (...)
The EU Commission endorses the toolbox of mitigating measures aiming to secure 5G network in the Union due to alleged ties between certain telecom equipment suppliers and foreign governments
In January 2020, the European Commission endorsed the Toolbox of mitigating measures agreed by the Member States of the European Union to address security risks related to the rollout of 5G. The protection of national security, and cybersecurity in particular, are unquestionably legitimate (...)
General antitrust
The EU Commission carries out unannounced inspections in the defense sector
Antitrust: Commission carries out unannounced inspections in the defence sector*
On 23 November 2021, the European Commission is conducting unannounced inspections at the premises of a company active in the defence sector.
The Commission has concerns that the inspected company may have (...)
The EU Commission issues a communication setting out specific best practices and recommendations for national courts to protect confidential information in private litigation proceedings
The protection of confidential information is an issue of increasing importance in today’s business relationships, as well as in cases of litigation before the courts. Indeed, the issue not only arises in connection with modern business contracts, where the parties may exchange in real time (...)
The International Competition Network announces a new set of principles with a view to making antitrust enforcement across jurisdictions more transparent, predictable and consistent
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
One of the most significant challenges facing companies dealing with the proliferation of global competition regimes is inconsistencies in approach, timelines, (...)
The OECD holds a roundtable on the authorities’ investigative powers in practice
Competition authorities assume a crucial and challenging mission: protecting competition in the markets. This mission requires intensive evidence and data gathering. To meet this end, competition authorities are armed with various investigative powers ranging from voluntary interviews to (...)
The OECD holds a session on promoting competition and protecting human rights
The first session of the 2016 OECD Global Forum on Competition focused on "Promoting competition, protecting human rights" during its first session. Competition law enforcement depends on an effective system of human rights, most obviously the right to property, the right to contract and (...)
The EU Parliament and Council issue a directive on public concessions which brings about a significant risk of duplication of the relevant rules
The new Directive on Concessions is basically unnecessary, but creates red tape, duplication & legal uncertainty (Dir 2014/23)*
I have been working on the preparation of a commentary to the first part of the new Directive 2014/23 on the award of concession contracts (OJ L 94, 28/03/2014, (...)
The EU Parliament makes available the provisional text of the public procurement directives and consolidates the principle of competition therewith
Principle of competition finally consolidated into public procurement directives*
The provisional text of the new public procurement Directives has been made available by the European Parliament. In the final version of 15 of January, the principle of competition is finally consolidated in (...)
The Swedish Competition Authority presents a report containing a wide range of policy measures for the improvement and strengthening of competition
Level playing field for the public and private sectors*
Obstacles to well-functioning competition must be removed. This is the overarching message in a report recently submitted to the Government by the Swedish Competition Authority. One suggestion is to separately account for public sales (...)
The Swedish Competition Authority examines in its pilot study the adoption by three municipalities of the free choice system in the home care sector
A fair system of choice requires transparent municipal accounting*
There are many reasons why municipalities with systems of choice must employ open and clear financial follow-ups for their own operations subject to competition. This is emphasized in a pilot study, where the Swedish (...)
Anticompetitive practices
The EU Commission carries out unannounced antitrust inspections in the construction chemicals sector
The EU Commission carries out unannounced antitrust inspections in the construction chemicals sector*
The European Commission is carrying out unannounced antitrust inspections at the premises of companies active in the construction chemicals sector in several Member States.
The Commission (...)
The EU Commission confirms unannounced inspections of some businesses in the fashion sector over concerns that the companies concerned may have violated competition law provisions that prohibit cartels and restrictive business practices
Antitrust: Commission confirms unannounced inspections in the fashion sector*
On 18 April 2023, the European Commission has started unannounced inspections at the premises of companies active in the fashion industry in several Member States. In parallel, the Commission has sent out formal (...)
The French Competition Authority states objections against two companies in the outdoor advertising sector
The general rapporteur of the Autorité de la concurrence has stated objections to two companies in the outdoor advertising sector*
The companies in question are criticised for having concluded and implemented, in the outdoor advertising sector, an agreement to share upstream markets, in (...)
The EU General Court dismisses the appeals of airlines fined for forming a cartel and upholds the Commission’s €790M fine (Airfreight cartel)
Cartel on the airfreight market: the General Court rules on actions brought by multiple airlines*
On 9 November 2010, the European Commission adopted a decision [1] against multiple undertakings operating on the airfreight market (‘the carriers’) which had participated in a pricing cartel (...)
The Portuguese Competition Authority fines the national association of advertising agencies €3.6 million for restricting members’ competition on private tenders (APAP)
On 22 June 2021, the Portuguese Competition Authority (Autoridade da Concorrência, “AdC”) issued a Decision (PRC/2018/3) imposing a €3.6 million fine on the Portuguese Advertising Agencies Association (Associação Portuguesa de Agências de Publicidade, “APAP”), for adopting a decision contrary (...)
The EU Court of Justice confirms the pay-for-delay infringement decision in the pharmaceutical sector (Lundbeck)
On 25 March 2021, the European Court of Justice (“ECJ”) dismissed all appeals against the 2016 rulings of the General Court which had upheld the European Commission’s (“Commission”) decision to fine Lundbeck and four generic pharmaceutical companies (Merck, Alpharma, Arrow and Ranbaxy) for (...)
The EU Court of Justice dismisses the appeals of several manufacturers of medicines and upholds the Commission’s decision regarding a pay-for-delay infringement (Lundbeck)
On 25 March 2021, the Court of Justice of the EU (“CJEU”) dismissed the appeals by Lundbeck and five producers of generic medicines against the General Court’s (GC) judgments that upheld the Commission’s decision and the fines it had imposed in its first pay-for-delay infringement decision in (...)
The Hellenic Competition Authority investigates alleged anticompetitive horizontal agreements and exclusionary practices in the provision of banking and payment services
Communication on the progress of the HCC’s investigation in the banking sector*
In November 2019, the Hellenic Competition Commission (HCC) conducted dawn raids, acting ex officio and following relevant complaints, at the premises of undertakings and their associations active in the banking (...)
The Cypriot Administrative Court annuls a decision that imposed a fine and an obligation to inform the association of undertakings’ members of their freedom regarding tender submissions in the electricity sector (MECAC)
The Administrative Court of Cyprus delivered its decision on the administrative recourse filed by the Mechanical and Electrical Contractors Association of Cyprus (“Applicant” or “MECAC”) against the Cyprus Commission for the Protection of Competition (“CPC” or “Respondent”) for the annulment (...)
The Italian Administrative Court of First Instance annuls the Competition Authority’s decision sanctioning a cartel of car manufacturers because of a breach of the parties’ right to a reasonable duration of the proceedings and for failing to characterize the ’by object’ restriction (Banca / Banque PSA / Santander Consumer Bank / BMW Bank)
On 21 October 2020 the Italian Administrative Court of First Instance ("TAR Lazio") annulled the decision issued by the Italian Competition Authority ("ICA") on 20 December 2018 sanctioning a number of car manufacturers and their "captive banks" in relation to an alleged cartel concerning car (...)
The EU General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by several French undertakings in the distribution sector (Casino, Guichard-Perrachon / Achats Marchandises Casino) (Intermarché Casino Achats) (Les Mousquetaires / ITM Entreprises)
The General Court annuls in part the Commission’s inspection decisions following suspicions of anticompetitive practices by a number of French undertakings in the distribution sector* The Commission has failed to show that it had sufficiently strong evidence to suspect exchanges of information (...)
The EU Court of Justice rejects power cables appeal on dawn raid powers and successor liability, and fines the company €104.6M for taking part in an international cartel (Prysmian)
On 24 September 2020, the European Court of Justice ("ECJ") fully dismissed an appeal brought by Prysmian, therefore upholding the European Commission’s ("Commission") decision to fine Prysmian EUR 104.6 million for taking part in an international Power Cable cartel.
WHAT YOU NEED TO KNOW - (...)
The EU Court of Justice dismisses a manufacturing company’s appeal against a fine imposed for the power cable cartel (Prysmian)
On 24 September 2020, the Court of Justice (“ECJ”) rejected the Italian power-cable manufacturer Prysmi- an’s appeal against the € 104.6 million fine imposed on it by the Commission in 2014 for its involvement in the Power Cables cartel case. The ECJ upheld the earlier ruling by the General (...)
The EU Court of Justice rules on dawn raids, in particular on storing of data without prior selection, which is then examined in the offices of the Commission (Nexans)
The CJEU ruled on the European Commission’s powers of inspections in cartel proceedings, in particular, regarding the power to copy data without a prior examination.
On 2009, the Commission’s inspectors, accompanied by representatives of the French competition authority, visited the premises (...)
The EU Court of Justice partially annuls the General Court power cables cartel decision and reduces the fine imposed by €200,000 (NKT)
On 14 May 2020, the Court of Justice of the European Union (the “Court of Justice”) partly set aside a judgment of the General Court dismissing the action brought by NKT Verwaltungs GmbH (formerly nkt cables GmbH) and NKT A/S (formerly NKT Holding A/S) (together, “NKT”) in the Power Cables (...)
The EU Court of Justice partially quashes the General Court’s decision and reduces the fines on eleven producers of high voltage power cables for their participation in a global market-sharing cartel (NKT)
On 14 May 2020, the European Court of Justice (the "ECJ") partially quashed the General Court’s (the "GC") judgment upholding the European Commission’s ("Commission") power cables cartel decision with respect to NKT and its wholly owned subsidiary NKT Verwaltungs (together "NKT" or the (...)
The Spanish Supreme Court dismisses an appeal in connection with dawn raids carried out by the Competition Authority in the manufacturing sector (Prysmian)
The Supreme Court Order focuses on the guarantees that must govern the CNMC’s inspection activities in the exercise of its powers and, in particular, in relation to legal assistance for companies subject to inspection.
In particular, the appeal is brought by Prysmian Spain, S.A (Prysmian) (...)
The Spanish High Court annuls Competition Authority’s decision fining 12 refrigerated transport companies and one business association for price fixing (ATFRIE)
The appealed Decision stated that the Spanish Association for Refrigerated Transportation (ATFRIE, in its Spanish acronyms), a business association of the main national companies involved in refrigerated transportation, had met to fix prices in the sector of refrigerated transport. The (...)
The Italian Council of State confirms the annulment of a €140 million fine imposed by the Competition Authority on steel companies, as they did not form a cartel in the reinforcing steel bar and electro-welded mesh markets (Reinforcing Steel Bars / Tondini per Cemento Armato)
On 21 January 2020, the Italian Council of State confirmed the annulment of a 140 million EUR fine imposed in 2017 by the Italian Competition Authority (“ICA”) to some of the main Italian steel companies. Indeed, the ICA – by Decision of 19 July 2017 (the “Decision”) issued in the proceedings (...)
The Italian Council of State upholds the annulment of the Competition Authority’s decision fining eight steel producers for an alleged price-fixing cartel (Reinforcing Steel Bars / Tondini per Cemento Armato)
On 21 January 2020, the Council of State (Italy’s Administrative Highest Court) handed down its judgment upholding the annulment of the Italian Competition Authority’s ("ICA") decision of 19 July 2017 which had fined eight Italian steel producers for an alleged price-fixing cartel, based on (...)
The EU Court of Justice dismisses an appeal in a cartel of power cable, confirming no infringement of the claimant’s rights of defence (Brugg / LS Cable)
On 28 November 2019, the European Court of Justice ("ECJ") handed down judgments in three appeals against General Court judgments that had dismissed actions challenging the European Commission’s ("Commission") power cables cartel decision. Leniency applicant ABB’s appeal was partially upheld, (...)
The Finnish Supreme Administrative Court rules on the scope of legally privileged material and finds that a memorandum found during a dawn raid contained a clear reference to external legal advice in the subject matter under investigation (Matkahuolto)
The Finnish Competition and Consumer Authority ("FCCA") had, during a dawn raid at a company’s premises, seized a memorandum drafted by this company which, among other things, referred to the legal advice provided to the company by an external attorney. The FCCA argued that as the internal (...)
The Shanghai Intellectual Property Court determines whether there are protectable interests and concludes that the degree of damage suffered by the plaintiff is not enough to meet the need for relief through the anti-unfair competition law (Beijing iQIYI Technology / Beijing Sogou Information)
The Anti-Unfair Competition Law of the People’s Republic of China stipulates seven types of unfair competition, namely, label confusion (Article 6), commercial bribery (Article 7), misleading statements (Article 8), infringement on trade secrets (Article 9), improper prize-winning sales (...)
The Higher Regional Court of Düsseldorf fines sausage manufacturer over € 6.5 million for cartel participation (Franz Wiltmann)
The Düsseldorf Higher Regional Court (Oberlandesgericht) imposed a fine of 6.5 million Euros on sausage manufacturer Franz Wiltmann and a fine of 350,000 Euros on a manager of the company for price fixing with other sausage producers.
Agreement on the timing of price increases
According to (...)
The Administrative Court of Lazio annuls a €140 million fine imposed by the Italian Competition Authority for a cartel in the reinforcing steel bar and electro-welded mesh markets (Reinforcing Steel Bars / Tondini per Cemento Armato)
On 12 June 2018, the Administrative Court of Lazio (“TAR Lazio”) annulled a 140 million EUR fine imposed in 2017 by the Italian Competition Authority (“ICA”) to some of the main Italian steel companies.
Indeed, the ICA – by Decision of 19 July 2017 (the “Decision”) issued in the proceedings (...)
The Croatian Constitutional Court annuls the Competition Authority’s prohibition decision due to violation of due process requirements (Private Security Companies)
On 1 February 2018, Croatian Constitutional Court (in Croatian: Ustavni sud Republike Hrvatske) adopted decision no. U-III/2791/2016, annulling the prohibition decision of the Croatian Competition Agency (“CCA”) no. 580-09/88-2015-100 adopted on 17 March 2015 imposing an administrative fine on (...)
The EU General Court partially annuls the Commission decision fining a financial company for facilitating cartels in the market of interest rate derivatives in Japanese yen (Icap)
On 10 November 2017, the General Court (“GC”) partially upheld the appeal lodged by Icap plc, Icap Management Services Ltd and Icap New Zealand Ltd (“Icap”) against a Commission decision ning Icap € 14.9 million for facilitating cartels in the market for interest rate derivatives in Japanese (...)
The Paris Court of Appeal grants legal privilege protection to in-house emails referring to the company’s defence strategy prepared by outside legal counsel (Whirlpool)
In its ruling issued on 8 November 2017, the Paris Court of Appeal (hereafter “the Court”) considers that in-house emails referring to a company’s defence strategy prepared by outside legal counsels but neither sent by or to an outside legal counsel were covered by lawyer-client privilege and (...)
The US Court of Appeals for the Second Circuit dismisses the indictments of two individuals accused of playing a role in the LIBOR case and clarifies the Fifth Amendment law in international cartels (Allen)
SECOND CIRCUIT CLARIFIES FIFTH AMENDMENT LAW, WITH IMPLICATIONS FOR US PROSECUTION OF INTERNATIONAL CARTELS*
On July 19, 2017, the Second Circuit vacated the convictions and dismissed the indictments of two individuals accused of playing a role in the manipulation of the London Interbank (...)
The EU General Court dismisses the actions of undertakings in a cartel case and upholds the fines imposed by the Commission (Smart card chips cartel)
Article 27(2) of Regulation No 1/2003 provides that the parties’ rights of defence are to be fully respected in proceedings by the European Commission pursuant to Articles 101 and 102 TFEU. Article 12 of Regulation 773/2004 states that the Commission must give the parties to whom it has (...)
The Indian Competition Appellate Tribunal reverses the fine against a professional association and its compliant pharmaceutical member company due to anticompetitive agreements (Maruti & Company / KCDA Karnataka Chemists & Druggists Association / Lupin)
COMPAT set asides penalty imposed on Lupin and its office bearers*
COMPAT vide order dated December 07, 2016 while setting aside the order dated July 28, 2016 of CCI has quashed the penalty of Rs 73 Crores imposed on Lupin Ltd. (“Lupin”) and its two officials for alleged anticompetitive (...)
The Belgian Competition Authority raids several undertakings active in the sale of over-the-counter products pharmacies
The Belgian Competition Authority confirms inspections at several undertakings active in the sale of non-prescription products in pharmacies*
The Investigation and Prosecution Service of the Belgian Competition Authority (hereafter “BCA”) confirms that the BCA has conducted inspections this (...)
The Indian Competition Appellate Tribunal sends a case back to the Competition Authority due to failure to give defendants notice for appeal before imposing fines and violating the principle of natural justice (Jet Airways / InterGlobe Aviation / Spice Jet)
COMPAT sets-aside penalty imposed on domestic airlines and remands the matter back to the CCI*
COMPAT by its order dated April 18, 2016 set-aside the penalty imposed on three domestic airlines by the CCI for alleged cartelization and remanded the matter back to the CCI for passing (...)
The Spanish Supreme Court upholds the fine imposed on a parent company held jointly and severally liable for the cartel behaviour of its subsidiary (Caprari)
The Supreme Court has upheld the appeal filed by Caprari SpA (Caprari or Parent Company) against the decision of the SCA declaring the Parent Company guilty of conduct carried out by its Spanish subsidiary Bombas Caprari S.A. (Bombas Caprari or Subsidiary) (...)
The Indian Competition Appellate Tribunal cancels a fine for anticompetitive conduct against a pharmaceutical association due to infringement of the principles of natural justice during an investigation by the Competition Authority (Rohit Medical Store / HPCDA Himachal Pradesh Chemist & Druggist Alliance)
COMPAT sets-aside penalty imposed on Himachal Pradesh Chemist & Druggist Alliance (HPCDA) on account of failure to observe principles of natural justice during investigation by the DG*
COMPAT, by its order dated January 13, 2016, has set-aside the penalty imposed by the CCI on HPCDA and (...)
The EU General Court confirms the decision of the Commission sanctioning a cartel on the market for cathode ray tubes but reduces the fines for some undertakings (Panasonic / Samsung / LG / Philips / Toshiba)
The General Court reduces the fines imposed by the Commission on Panasonic and on Toshiba for their participation in a cartel on the European market for tubes for television sets*
However, it confirms the fines imposed on the other members of the cartel
By decision of 5 December 2012, [1] (...)
The US Court of Appeals for the Seventh Circuit rejects a claim of collusion in the text messaging sector and reminds the limits of "hot" documents (Text messaging)
Collusion Course: The Limits of Hot Documents*
Discovery in antitrust cases often involves a search for smoking-gun documents. Those documents can consist of emails proving that competitors conspired to raise prices, removing the difficulties faced by prosecutors or civil plaintiffs in (...)
The EU Court of Justice holds that parent companies may be fined for repeated infringements even without being an addressee of the earlier decisions (Versalis)
On 5 March 2015, the European Court of Justice (CoJ) handed down its judgment in Versalis , concerning the increasing of fines for antitrust infringements where a company is found to be a repeat offender. The judgment raises important questions about the respect for the rights of defence in EU (...)
The Ontario Superior Court of Justice holds that communications between corporations and the Competition Authority during the proffer stage of the immunity program or the leniency program should not be protected by settlement privilege (Nestlé Canada)
The Ontario Superior Court of Justice held in R. v Nestlé Canada Inc. that communications between corporations and the Competition Bureau (Bureau) during the proffer stage of the Immunity Program or the Leniency Program should not be protected by settlement privilege.
This case has clear (...)
The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defence to allegations that immunity had been forfeited by the inclusion of non-producer members (Mushroom Direct Purchaser)
Agricultural Cooperative Antitrust Litigation Continues to Mushroom*
Pennsylvania District Court certifies five year ruling for interlocutory appeal, that mushroom cooperative is not immune from antitrust claims based upon “advice of counsel” argument. In Re Mushroom Direct Purchaser (...)
The US District Court for the Eastern District of Pennsylvania rules that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defence to the antitrust laws (Mushroom Direct Purchaser)
Mushroom Court Ruling Sprouts Controversy on Whether Reliance on Lawyer Advice Maintains Affirmative Defense to Antitrust Claims*
A federal district court recently ruled that claims of “good faith reliance on counsel” were not sufficient to maintain a Capper-Volstead affirmative defense to (...)
The US Court of Appeals for the Second Circuit denies Government’s en banc petition in the Munibonds Statute of Limitations Case and confirms the limitation of the payment theory (Grimm)
Second Circuit Denies Government’s En Banc Petition in Munibonds Statute of Limitations Case*
In its first Munibonds trial in 2012, the Antitrust Division convicted three former General Electric executives for rigging bids to suppress interest rates paid to municipalities on funds they (...)
The South African Competition Authority conducts dawn raids at the offices of undertakings competing on the markets for panel beating, spray painting and towing of vehicles (Precision / Eldan / VAAC)
Auto-Body Repair Centres raided by SACC*
Earlier on 4 July 2014, the South African Competition Commission (“Commission”) has conducted dawn raids at the offices of Precision and Sons (“Precision”), Eldan Auto Body (“Eldan”) in Pretoria West, as well as the Vehicle Accident Assessment Centre (...)
The EU Court of Justice upholds the expansive geographic reach of a Commission dawn raid decision in a cartel investigation (Nexans)
The European Court of Justice (ECJ) has upheld the expansive geographic reach of a European Commission dawn raid decision in the electric cables cartel investigations. Nexans, one of ten companies being investigated, had argued that the geographic scope was overbroad and provided an (...)
The Polish Competition Authority reduces severe penalty imposed by its President for obstructing inspections during a dawn raid (Polkomtel)
On 18 June 2014, the Polish Court for the Competition and Consumer Protection (“SOKiK”) changed the decision issued by the President of the Office of Competition and Consumer Protection (“NCA”) in which Polish mobile telecom operator (Polkomtel) was fined for non-cooperation in the course of a (...)
The Australian Competition Authority files an application seeking to challenge compulsory examination notices being part of an antitrust investigation into allegations of cartel conduct regarding a tender process for an exploration mining licence (Paul and Moses Obeid)
Moses and Paul Obeid issue court challenge to ACCC examination notices*
In response to media inquiries, the ACCC confirms that an application has been filed in the Federal Court of Australia which seeks to challenge compulsory examination notices issued by the ACCC to Paul and Moses Obeid (...)
The EU Court of Justice dismisses appeal against a re-adopted Commission decision (Bolloré)
On 8 May 2014, the European Court of Justice (ECJ) dismissed an appeal by French industrial conglomerate, Bolloré, which sought to overturn a European Commission decision imposing a fine for its participation in a cartel on the market for carbonless paper, which was re-adopted in June 2010 (...)
The EU Court of Justice Advocate General Yves Bot proposes to reduce the safe harbour for directly awarded public contracts subjected to prior transparency (Fastweb)
AG proposes to reduce safe harbour for directly awarded public contracts subjected to prior transparency (C-19/13)*
In his Opinion of 10 April 2014 in case C-19/13 Fastweb, Advocate General Bot has proposed an interpretation of Art 2d(4) of Directive 89/665 (as amended by dir 2007/66) that (...)
The US District Court for the Eastern District of Virginia denies motion to dismiss hearing in a case concerning an alleged exclusion from competing in health care markets (Dr. Yvoune Kara Petrie / Virginia Board of Medicine)
The Virginia Board of Medicine Violated the Antitrust Laws*
Last week (17-23 March 2014) was a big antitrust week for the new law firm of Bona Law PC. First, it was the ABA Antitrust Spring Meeting, where antitrust lawyers from all over the world descend upon Washington, DC to obsess over (...)
The EU Court of Justice reduces the fines imposed on the appellant for the failure of the General Court to take sufficient account of a substantive problem with the Commission’s decision relating to the company’s rights of defence (Ballast Nedam)
Case C-612/12 P Ballast Nedam NV: Competition law, rights of the defence and reduction of fine.*
The Court of Justice does not often reduce a fine imposed by the Commission on an undertaking for a breach of the competition rules when the amount of the fine has been upheld by the General (...)
The Czech Administrative Supreme Court refuses to allow judicial review of a dawn raid (Schneider Electric)
On 13 February 2014, the Supreme Administrative Court rejected cassation complaint lodged by Schneider Electric CZ against the judgment of the Regional Court in Brno which rejected a claim that had been submitted previously against the allegedly unlawful dawn raid that had took place at (...)
The UK Competition Authority brings criminal charges against ex-manager following an investigation into suspected cartel conduct in respect of the supply of galvanised steel tanks for water storage (Peter Nigel Snee)
Can the OFT Succeed in its Latest Attempt at Bringing Criminal Charges Against an Individual for Cartel Conduct?*
The Office of Fair Trading (OFT) has charged Peter Nigel Snee under section 188 of the Enterprise Act 2002. It is alleged that he ‘dishonestly agreed with others’ to fix prices, (...)