Van Bael & Bellis (Brussels)

Andrzej Kmiecik

Van Bael & Bellis (Brussels)
Lawyer (Partner)

Andrzej Kmiecik specialises in all aspects of competition law, with considerable experience in merger control proceedings and cartel cases, as well as distribution, pricing, intellectual property and state aid matters. He represents clients before the European Commission and the EU Courts, as well as in national competition law proceedings. Andrzej’s practice covers a wide range of industrial sectors, including motor vehicles, pharmaceuticals, paper and board products, office equipment, consumer electronics, aerospace, petrochemicals, clothing and footwear. Some of the more high profile EU merger control cases he has handled include Boeing/McDonnell Douglas, Enso/Stora, Boeing/Hughes, Caemi/Mitsui/CVRD, Boeing/Lockheed/ULA, SABIC/Huntsman and SABIC/GE Plastics. Major EU cartel investigations in which he has acted as defense counsel include Newsprint, Amino Acids (also on appeal), Carbonless Paper (also on appeal), Publication Papers and Fine Papers. In the life sciences sector, Andrzej has acted as counsel in major EU antitrust investigations concerning diabetes care (Becton Dickinson/Novo Nordisk), vaccines (Lederle/SKB) and blood screening (Chiron/DRK). He has been actively involved in the Commission’s recent pharmaceutical sector inquiry. Andrzej has developed a niche practice in the field of motor vehicle distribution. He counsels and defends a number of manufacturers, combining extensive experience of applying the sector-specific rules with his in-depth industry knowledge. Andrzej Kmiecik speaks English and French.

Auteurs associés

Van Bael & Bellis (Brussels)
Van Bael & Bellis (Brussels)
Van Bael & Bellis (Brussels)
Van Bael & Bellis (Brussels)
Van Bael & Bellis (Brussels)

Articles

46056 Bulletin

Andrzej Kmiecik The EU Commission publishes a working paper outlining its preliminary views on the application of article 101 TFEU to distributors that also act as agents for the same supplier

122

On 5 February 2021, the European Commission (“Commission”) published an important working paper outlining its preliminary views on the application of Article 101 TFEU to distributors that also act as agents for the same supplier (the “Working Paper”). As brand owners are showing an increasing (...)

Floris-Willem Dierickx, Andrzej Kmiecik The EU Commission fines a PC gaming platform operator and five video game publishers €7.8 million for geo-blocking practices (Valve / Bandai Namco / Capcom / Focus Home / Koch Media / ZeniMax)

147

On 20 January 2021, the European Commission (the “Commission”) announced that it had fined the US company Valve, owner of the popular online PC gaming platform “Steam” (“Steam”), and five publishers of video games (Capcom, Bandai Namco, Koch Media, Focus Home Interactive and ZeniMax Media) a total of (...)

Floris-Willem Dierickx, Andrzej Kmiecik The Czech Competition Authority upholds a fine of €1.6 million for resale price maintenance levied against childcare products supplier (Baby Direkt)

35

On 5 January 2021, on appeal against a decision by the Czech Office for the Protection of Competition (“Czech NCA”), the Chairman of the Czech NCA (the “Chairman”) upheld a fine of € 1.6 million levied by his organisation in November 2019 against childcare products supplier Baby Direkt. Baby Direkt (...)

Andrzej Kmiecik, Floris-Willem Dierickx, Helga Gudmundsdottir The EU Commission publishes an inception impact assessment as part of the reform of the vertical block exemption regulation

173

On 23 October 2020, the European Commission (“Commission”) published an Inception Impact Assessment (the “Inception Assessment”) (available here) as part of the revision of the Vertical Block Exemption Regulation (“VBER”) and the Vertical Guidelines in anticipation of the expiry of the VBER on 31 May (...)

Andrzej Kmiecik, Gábor Báthory, Helga Gudmundsdottir The Hungarian Competition Authority fines a brewery for failing to comply with reporting obligations under commitments to limit exclusivity contracts (Heineken)

54

By decision of 19 October 2020, the Hungarian Competition Authority (“GVH”) imposed a fine of HUF 75 million (approximately € 250,000) on beer maker Heineken for failing to comply with its reporting obligations under its commitments to reduce the amount of beer sold under exclusivity contracts. (...)

Andrzej Kmiecik The Austrian Cartel Court clarifies the calculation method for domestic turnover thresholds and imposes a €100,000 fine on a car parts manufacturer for failing to notify its acquisition (Castanea Rubra / Neue Halberg)

70

On 4 August 2020, the Austrian Cartel Court published a decision dated 13 February imposing a € 100,000 fine on Castanea Rubra Assets GmbH (“Castanea Rubra”) for failing to notify its acquisition of 94% of shares in Neue Halberg Guss GmbH (“Neue Halberg”) in 2018. This failure to notify violated the (...)

Andrzej Kmiecik, Anna Jorna The Amsterdam Court of Appeal upholds the legality for non-luxury brands to ban resale on third-party platforms (Nike / Action Sport / Amazon)

226

On 14 July 2020, the Amsterdam Court of Appeal (the “Court”) handed down its judgment in the dispute between Nike European Operations Netherlands B.V. (“NEON”) and Action Sport SOC. COOP, A.R.L. (“Action Sport”), an Italian retailer of Nike’s sportswear, footwear and related products. The Court upheld (...)

Andrzej Kmiecik, Helga Gudmundsdottir, Marcus Gustafsson The Danish Competition Authority orders a fashion company to stop anti-competitive information exchange with its retailers (Hugo Boss / Kaufmann) (Hugo Boss / Ginsborg)

102

On 24 June 2020, the Danish Competition Council (“DCC”) adopted two separate decisions concerning anticompetitive conduct engaged in : (i) between the clothing manufacturer, supplier and retailer Hugo Boss Nordic ApS (“Hugo Boss”) and the retailer Axel Kaufmann ApS (“Kaufmann”) and (ii) between Hugo (...)

Margot Vogels, Andrzej Kmiecik, Helga Gudmundsdottir The Paris Court of Appeal upholds the dismissal of a French car repairers’ complaints against a car manufacturer’s alleged discrimination in determining membership of its authorised repair network (Hyundai)

135

On 4 June 2020, the Competition Chamber of the Paris Court of Appeal (the “Court”) handed down a judgment dismissing the appeal filed by three car repairers (the “Claimants”) against a decision of the French Competition Authority (the “FCA”) to reject their complaint against Hyundai Motor France (...)

Andrzej Kmiecik The French Competition Authority fines a big tech and its wholesalers a record €1.24 billion for engaging in restriction of resale opportunities, coordinating on prices and imposing unfair terms on its retailers (Apple / Tech Data / Ingram Micro)

173

According to a press release of 16 March 2020, the French Competition Authority (the “FCA”) imposed a record-breaking fine of € 1.1 billion on Apple for anticompetitive practices in the distribution of Apple products (excluding iPhones). These practices included : (i) restricting resale (...)

Andrzej Kmiecik The EU Commission imposes a €6.7 million fine on a Spanish hotel group for restrictions on cross-border sales of hotel accommodations by including discriminatory clauses in its agreements with tour operators (Meliá)

228

On 21 February 2020, the European Commission (the “Commission”) announced its decision to fine Spanish hotel group Meliá € 6,678,000 for including clauses in its agreements with tour operators that discriminated between consumers based on their country of residence. According to the Commission’s (...)

Andrzej Kmiecik The Polish Competition Authority imposes a €325,000 fine on an office equipment maker for engaging in online retail price maintenance (Brother)

202

On 11 February 2020, the Polish Office of Competition and Consumer Protection (the “UOKIK”) imposed a fine of PLN 1.4 million (approximately € 325,000) on office equipment maker Brother for online retail price maintenance (“RPM”). The UOKIK’s decision explains that, between the years 2010 and 2017, (...)

Andrzej Kmiecik The EU Commission imposes a €14.3 million fine on a film and TV production company for territorial and online sale restrictions of merchandising products (NBCUniversal)

1323

On 30 January 2020, the European Commission (“Commission”) announced its decision to fine several companies belonging to Comcast Corporation, including NBCUniversal, € 14,327,000 for limiting the ability of licensees to sell licensed merchandising products to other EEA countries and non-allocated (...)

Andrzej Kmiecik The UK Court of Appeal rejects an appeal against a judgment of the CAT which upheld the Competition Authority’s decision finding the online sales ban of a company’s custom-fitted golf clubs to be an unjustified restriction (Ping)

566

On 21 January 2020, the UK Court of Appeal rejected an appeal brought by the golf club manufacturer Ping Europe Limited (“Ping”) against the 2018 judgment of the Competition Appeal Tribunal (“CAT”), which upheld the Competition and Markets Authority’s (“CMA”) 2017 decision finding Ping’s online sales (...)

Andrzej Kmiecik The German Competition Authority imposes fines totalling €154.6 million on plant protection product suppliers for agreeing on price lists, rebates and retail prices (Agravis / Agro Agrargroßhandel / BayWa / BSL Betriebsmittel Service Logistik / Getreide / Raiffeisen Waren / ZG Raiffeisen)

216

On 13 January 2020, the German Federal Cartel Office (FCO) imposed fines totalling € 154.6 million on seven undertakings for agreeing on price lists, rebates and retail prices for plant protection products between 1998 and 2015. Fines were also imposed on employees implicated in the infringing (...)

Andrzej Kmiecik The Swedish Competition Authority issues a preliminary injunction against the use of exclusivity provisions in vertical agreements by the owner of a training aggregator app (Bruce)

314

On 5 December 2019, the Swedish Competition Authority (“SCA”) issued a preliminary injunction against IM WITH BRUCE (“Bruce”), the owner of a so-called “training aggregator” app which offers subscribers access to a variety of fitness studios, prohibiting Bruce from using exclusivity provisions in its (...)

Andrzej Kmiecik The Spanish Competition Authority fines a company for anticompetitive restrictions in contracts concluded with authorised repairers of gas boilers (Vaillant)

138

On 26 November 2019, the Spanish Competition Authority (“CNMC”) imposed total fines of € 859,763 on several companies in the Vaillant Group, suppliers and repairers of gas boilers, for a breach of Article 1 of the Spanish Competition Act for anticompetitive restrictions in contracts concluded with (...)

Andrzej Kmiecik The Spanish Competition Authority imposes fines totalling €77 million on two national leading TV channel operators for restricting other channels’ abilities to compete for advertising revenue (Mediaset / Atresmedia)

121

On 12 November 2019, the Spanish Competition Authority (“CNMC”) fined Spain’s two leading TV channel operators Mediaset and Atresmedia a total of € 77 million for imposing single-branding obligations in their agreements with television advertisers. The CNMC concluded that the two TV channel (...)

Andrzej Kmiecik The Paris Court of Appeal rules that a car supplier is free to terminate a selective car distribution contract with a distributor despite meeting the selection criteria (Garage Richard Drevet / Hyundai)

385

On 31 July 2019, the Paris Court of Appeal (the “Court”) ruled that Hyundai did not discriminate against retailer Garage Richard Drevet by terminating its car distribution contract. The Court essentially ruled that each car supplier is free to determine whether to grant access to its selective (...)

Andrzej Kmiecik The German Federal Court of Justice annuls a judgment of the Higher Regional Court of Düsseldorf imposing a fine on a drugstore for engaging in resale price maintenance (Rossmann)

224

On 9 July 2019, the German Federal Court of Justice (“FCJ”) annulled a judgment of the Higher Regional Court of Düsseldorf (the “Court”) which had increased a fine imposed on drugstore Rossmann for engaging in resale price maintenance (“RPM”) from € 5.25 million to € 30 million. In December 2015, the (...)

Andrzej Kmiecik The EU Commission sends a statement of objections regarding the alleged geo-blocking of PC video games (Valve / Focus Home / Koch Media / ZeniMax / Bandai Namco / Capcom)

229

On 5 April 2019, the European Commission announced via a press release that it had sent Statements of Objections to Valve – the owner of the ‘Steam’ video game distribution platform – and five video game publishers (Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax) concerning their alleged (...)

Andrzej Kmiecik The Paris Court of Appeal fines an online platform for selling products without being part of the selective distribution network of the producer (Coty / Showroomprive.com)

562

On 28 February 2018, the Paris Court of Appeal (the “Court”) released its judgment in an appeal related to a dispute between Coty France (“Coty”), a producer of branded luxury cosmetics including, in particular, perfumes, and Showroomprive.com, an online platform specialised in the sales of branded (...)

Andrzej Kmiecik The Spanish Supreme Court voids an exclusive-supply agreement in the energy sector that was previously subject to a commitment decision by the EU Commission (Repsol)

680

Spain’s Supreme Court has voided a contract including an exclusive-supply clause in favour of Repsol, following a judgment of the Court of Justice of the European Union (“ECJ”) in which the ECJ confirmed that national courts are not precluded from assessing potentially anti-competitive agreements (...)

Andrzej Kmiecik The EU Court of Justice hands down an anticipated judgment in the luxury goods sector regarding the possibility to restrict sales on third party online platforms that are outside of the selective distribution network (Coty Germany / Parfümerie Akzente)

745

On 6 December 2017, the Court of Justice of the European Union (the ECJ or the Court) handed down its eagerly anticipated judgment in Coty (C-230/16). In general, the ECJ closely follows the opinion of Advocate General Wahl (AG Wahl), published on 26 July 2016, in essentially holding that : (...)

Andrzej Kmiecik The French Supreme Court refers a case regarding an online sales ban back to the Paris Court of Appeal without waiting for an upcoming ruling of the EU Court of Justice on a similar case (Caudalie / eNova Santé)

686

On 13 September 2017, the French Supreme Court ordered the Paris Court of Appeal to rehear a case for failing to sufficiently substantiate its finding that an obligation in Caudalie’s selective distribution system constituted a probable restriction of competition by object. In the selective (...)

Andrzej Kmiecik The Belgian Competition Authority fines a leading yeast producer and three parent companies for several infringements of Articles 101 and 102 TFEU (Algist Bruggeman)

257

On 22 March 2017, the Belgian Competition Authority (“BCA”) imposed a fine amounting to € 5,489,000 on leading yeast producer Algist Bruggeman NV (“AB”), and three parent companies, for several infringements of Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) and (...)

Andrzej Kmiecik The EU General Court rules on three actions claiming damages for alleged excessive duration of judicial proceedings (Armando Alvarez / Plasticos Espanoles / Kendrion)

354

On 1 and 17 February 2017, the General Court (“GC”) delivered three judgments in relation to actions claiming damages for alleged excessive duration of judicial proceedings. This is the second set of judgments issued by the GC on this topic. Last month, the GC awarded Gascogne more than € 57,000 (...)

Andrzej Kmiecik The Frankfurt Higher Regional Court rules on restrictions imposed on the use of online platforms and price comparison websites in a selective distribution system (Deuter)

665

On 22 December 2015, the Higher Regional Court of Frankfurt (the “Court”) issued a ruling on appeal concerning the selective distribution system of Deuter, a producer of quality backpacks. The Court assessed two restrictions imposed by Deuter on the resellers belonging to its selective (...)

Andrzej Kmiecik The Austrian Supreme Court of Justice increases the fine against a food retailer after upholding an earlier finding of illegal pricing agreements relating to dairy products (Spar)

507

On 8 October 2015, the Austrian Supreme Court of Justice (the “Supreme Court”) increased the fine against Spar, a food retailer, from € 3 million to € 30 million after upholding an earlier finding of illegal pricing agreements relating to dairy products. On 26 November 2014, the Higher Regional (...)

Andrzej Kmiecik The Bulgarian Competition Authority fines three sunflower oil producers and their distributors for entering into vertical agreements aimed at restricting competition in the bottled sunflower oil market

177

The Bulgarian Competition Authority has fined three sunflower oil producers and five of their distributors a total of more than BGN 2 million (around € 1 million) for entering into vertical agreements aimed at restricting competition on the bottled sunflower oil market by means of fixing (...)

Andrzej Kmiecik The Danish Competition and Consumer Authority announces that a white goods manufacturer has accepted to pay a fine of € 161,000 for having entered into illegal price maintenance agreements with its dealers and for having prevented parallel imports (Miele)

379

On 25 July 2013, the Danish Competition and Consumer Authority (“DCCA”) announced that the white goods manufacturer Miele A/S has accepted to pay a fine of DKK 1.2 million (around € 161,000) for having entered into illegal price maintenance agreements with its dealers and for having prevented (...)

Andrzej Kmiecik The Spanish Competition Authority imposes fines on three entities for setting up a traceability system that have led to sales restrictions (Nadorcott Protection / Carpa Dorada / Club de Variedades Vegetales Protegidas)

195

On 4 July 2013, the CNC fined three entities for setting up a traceability system that led to restrictions of sales of the Nadorcott tangerine. The fined entities were the holder of the Community plant variety rights for the Nadorcott tangerine (Nadorcott Protection, S.A.R.L.) ; an (...)

Andrzej Kmiecik, Helen Palmer The Spanish Competition Commission opens an investigation into a car manufacturer for possible anti-competitive practices in the market for the supply of spare parts (Opel)

250

On 16 May 2013, the Spanish Competition Commission (CNC) announced that it has opened a formal investigation into the Spanish subsidiary of General Motors, Opel, for possible anti-competitive practices in the market for the supply of spare parts to Opel’s authorised dealers and repairers. (...)

Andrzej Kmiecik The EU Court of Justice hands down preliminary ruling on circumstances in which agreements concerning the price of automotive repairs concluded between insurance companies and repair shops may have an anti-competitive object (Allianz / Generali)

423

On 14 March 2013, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Hungarian Supreme Court on the application of Article 101 TFEU to certain agreements between insurance companies and car repair shops. Once a (...)

Andrzej Kmiecik The Swiss Competition Authority fines body representing audiovisual media device producers for restricting parallel imports (International Federation of the Phonographic Industry, Phononet)

184

In a decision of 16 July 2012, the Competition Authority of Switzerland (“COMCO”) levied a fine of CHF3.5 million (around € 3 million) on the International Federation of the Phonographic Industry (“IFPI Switzerland”), as well as a fine of CHF20,000 (around € 16,000) on Phononet AG (“Phononet”), (...)

Andrzej Kmiecik The German Federal Court of Justice dismisses an action brought by a repair shop to be admitted to the authorised repair network of a commercial vehicle manufacturer based on an alleged abuse of dominance (MAN-Vertragswerkstatt)

513

In a recent judgment delivered on 30 March 2011, the German Federal Court of Justice dismissed the action brought by a vehicle repairer to be admitted to the authorised repair network of MAN, a commercial vehicle manufacturer, based on the claim that MAN was abusing its dominant position as (...)

Andrzej Kmiecik The Danish Competition Authority finds resale price maintenance and restrictions of parallel trade in the electrical appliances sector but chooses not to impose fines (Witt Hvidevarer)

345

In a decision adopted on 24 November 2010, the Danish Competition Authority found that Witt Hvidevarer A/S (“Witt”), a Danish importer and wholesaler of robotic vacuum cleaners and floor washers manufactured by the American company iRobot, had engaged in anticompetitive practices over a period of (...)

Andrzej Kmiecik The Paris Court of Appeal reduces damages awarded for the sales of perfumes through a website by unauthorised distributors (eBay / Christian Dior / Kenzo / Givenchy / Guerlain)

583

On 3 September 2010, the Paris Court of Appeal delivered its judgment in a case between eBay and SA Parfums Christian Dior, SA Kenzo Parfums, SA Parfums Givenchy, and SA Guerlain (which are perfume and cosmetics suppliers belonging to the LVMH group – hereinafter the “LVMH group”). On 30 June (...)

Andrzej Kmiecik The Paris Court of Appeal rules on the refusal by motor vehicle manufacturers to examine applications of dealers to be reappointed to their respective distribution networks (Groupe Volkswagen France)

290

In two separate judgments that were handed down in June 2010, the Commercial Court of Versailles and the Paris Court of Appeal awarded damages to former dealers of SA Nissan France (“Nissan”) and SA Groupe Volkswagen France (“VW”) respectively, whose dealership agreements were terminated by the (...)

Andrzej Kmiecik The Versailles Commercial Court rules on the refusal by motor vehicle manufacturers to examine applications of dealers to be reappointed to their respective distribution networks (Nissan France)

295

In two separate judgments that were handed down in June 2010, the Commercial Court of Versailles and the Paris Court of Appeal awarded damages to former dealers of SA Nissan France (“Nissan”) and SA Groupe Volkswagen France (“VW”) respectively, whose dealership agreements were terminated by the (...)

Andrzej Kmiecik The Lithuanian Competition Authority fines supplier and distributors of DVD movies for resale price maintenance (Bomba, Computer data international, Elektromarktas)

201

On 28 January 2010, the Competition Authority of Lithuania fined several undertakings active in the supply and distribution of DVD movies for engaging in resale price maintenance in breach of the provision of Lithuanian law equivalent to Article 101 TFEU between 2006 and 2009. The fines imposed (...)

Andrzej Kmiecik The Lithuanian Competition Authority announces termination of investigation into motor vehicle manufacturers and distributors (Hyundai, Renault, Toyota, Honda and Saab)

181

Early in 2009, the Lithuanian Competition Council launched an investigation into certain companies active in the sale of new motor vehicles in Lithuania, examining claims that these companies had required customers to have their vehicles serviced only by an authorized dealer/repairer of the (...)

Andrzej Kmiecik The Amsterdam Court of First Instance rules on a refusal to appoint motor vehicle dealers to a motor vehicle selective distribution network (KIA)

409

On 3 December 2009, the President of the Amsterdam Court of First Instance (the “President”) accepted an interim proceedings claim brought by four former Kia Nederland BV (“KIA Nederland”) repairers. The repairers claimed that KIA Motors Nederland BV (“KIA Motors”), which replaced KIA Nederland as (...)

Andrzej Kmiecik The Spanish Competition Authority fines major fuel suppliers for resale price maintenance and accepts commitments relating to long-term contracts and non-compete clauses (Repsol / CEPSA / BP)

517

According to a press release of 30 July 2009, the Spanish Competition Authority imposed fines totalling € 7.9 million on REPSOL, CEPSA and BP (the three main suppliers of fuel in Spain) for violating the competition rules by engaging in resale price maintenance in their relations with (...)

Andrzej Kmiecik The French Competition Authority rejects a complaint of resale price maintenance made against a supplier of women’s clothing and accessories and its agents (Punto Fa)

534

On 30 June 2009, the French Competition Authority adopted a decision rejecting the complaint brought by the French Minister for the Economy for alleged resale price maintenance involving Punto Fa SL (“Punto Fa”) and its agents in France. Punto Fa is a supplier of women’s clothing and accessories (...)

Andrzej Kmiecik The UK OFT reviews the national newspapers code of practice

122

On 22 October 2008, the UK Office of Fair Trading (“OFT”) issued three publications setting out its analysis of competition in newspaper and magazine distribution in the UK. These publications comprise (i) an opinion providing competition law guidance on the legality of newspaper and magazine (...)

Andrzej Kmiecik The EU Commission holds a roundtable on Internet commerce

172

According to a Commission’s Press Release of 17 October 2008, the Commission held a roundtable with consumer and industry representatives in order to discuss the need to reform the competition rules applicable to Internet commerce. This group of stakeholders will produce a report for the (...)

Andrzej Kmiecik The Portuguese Competition Authority accepts commitments concerning non-compete obligations on hotels, restaurants and cafés (Nestlé Portugal / Delta Cafés Sociedade Gestora de Participaçoes Sociais, Nutricafés / Cafés e Restauraçao and Segafreddo Zanetti)

172

On 16 July 2008, the Portuguese Competition Authority issued a press release indicating that it has accepted the commitments offered by four suppliers (Nestlé Portugal SA, Delta Cafés Sociedade Gestora de Participaçoes Sociais SA, Nutricafés – Cafés e Restauraçao SA and Segafreddo Zanetti (Portugal (...)

Andrzej Kmiecik The Hungarian Competition Council terminates investigation into beer supply agreements following amendment of non-compete obligations (Borsodi, Dreher Sörgyárak, Heineken)

212

On 16 May 2008, the Hungarian Competition Council (the « Competition Council« ) decided to accept the commitments offered by Borsodi Zrt. (« Borsodi« ), a large Hungarian brewer, and terminated its investigation into Borsodi‘s beer supply agreements. The Competition Council, first, found that the (...)

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