McDermott Will & Emery (Brussels)

Hendrik Viaene

McDermott Will & Emery (Brussels)
Partner

Hendrik Viaene is a managing partner with McDermott Will & Emery based in the firm’s Brussels office. He focuses his practice on competition law, regulated markets and regulatory law. He advises clients across a wide range of related issues including state aid, cartels, licensing agreements, merger filings, M&A negotiations, abuse of dominance cases, and distribution agreements. Hendrik assists governments as well as privately and publicly owned companies. He has a wealth of experience in a range of sector such as energy, chemicals, paints, automotive, financial data, recycling and waste management, telecom, construction, renewables, media, private equity and the financial industry. Hendrik represents companies before national competition authorities and before the European Commission in state aid, cartel, merger, and abuse of dominance investigations. He also assists governments and companies on defence strategies as well as compliance programmes to avoid fines or having to refund or recover state aid. Hendrik has successfully guided clients through first and second phase investigations in merger clearance proceedings before competition authorities across the globe. He also counsels clients on compliance audits, immunity and leniency initiatives, and general risk avoidance in relation to competition law. Hendrik has additional experience in intellectual property rights licensing initiatives specifically with regard to restrictions imposed by competition law. During his career he has represented clients in proceedings before the European Commission, the European Court of Justice, the Belgian Competition Authority, the Brussels Court of Appeals, the New Caledonian Competition Authority, the Paris Court of Appeals, and the Luxembourg Competition Authority. He acted as co-counsel for other clients for most major competition authorities worldwide, and he also audited a number of competition authorities’ operations and output as a subject matter expert.

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McDermott Will & Emery (Brussels)
McDermott Will & Emery (Brussels)

Articles

5590 Bulletin

Hendrik Viaene, Karolien Van der Putten, Hannelore Wiame The EU General Court rules that the Commission has the power to review a merger despite the fact that the turnover thresholds have not been triggered (Illumina / Grail)

26

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 (...)

Hendrik Viaene, Karolien Van der Putten, Hannelore Wiame The EU Commission adopts Temporary Crisis Framework for State aid measures to support the EU economy following Russia’s invasion of Ukraine

507

To mitigate the negative economic and social consequences of Russian military aggression against Ukraine and to lessen the effect of the restrictive economic measures taken in response to the crisis, as well as retaliatory counter measures, the European Commission adopted the Temporary Crisis (...)

Hendrik Viaene, Karolien Van der Putten, Hannelore Wiame The EU Commission sends a draft proposal to the Member States with the aim of establishing a State aid temporary crisis framework to support the EU economy in the wake of Russia’s invasion of Ukraine

468

The European Commission consults Member States on its draft proposal On March 10, 2022 the European Commission (Commission) sent a draft proposal to EU Member States with the aim of establishing a State aid Temporary Crisis Framework to support the EU economy in the wake of Russia’s invasion of (...)

Hendrik Viaene, Hannelore Wiame, Karolien Van der Putten The Belgian Parliament transposes the ECN+ Directive into the national legislation and introduces filing fees in concentration notifications

540

On March 7, 2022, changes to both the Belgian Code of Economic Law (CEL) as well as the Belgian Criminal Code (BCC) were published in the Belgian Official Gazette (Belgisch Staatsblad, Moniteur belge). The main changes include : Introducing a filing fee in notifications of concentrations (...)

Philip Bentley, Jacques Buhart, Frédéric Pradelles, Hendrik Viaene, David Henry, Mary Hecht, Max Küttner The EU Commission investigates a merger between two genomics companies (Grail / Illumina)

204

The EC’s review of Illumina’s acquisition of GRAIL raises two novel issues : the assertion of jurisdiction by the EC over transactions that do not meet any national or EU jurisdictional merger control tests, and the use of interim measures to stop parties closing a transaction where the EC has (...)

Hendrik Viaene, Karolien Van der Putten The EU Court of Justice broadens the scope of follow-on damage claims by permitting actions against the subsidiaries of companies which have been found to have infringed competition law (Sumal / Mercedes Benz Trucks España)

220

On 6 October 2021, the CJEU issued its judgment in Case C-882/19, Sumal, S.L. v Mercedes Benz Trucks España, S.L. (EU:C:1987:418), and confirmed that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law. The victim of an (...)

Hendrik Viaene State aid & taxation : An overview of EU and national case law

708

This Special Issue collects all contributions available in the e-Competitions database relating to State aid and taxation. This topic has been at the source of many a heated debate. When reviewing the existing European Commission (‘Commission’) decisional practice and the case-law of the European (...)

Hendrik Viaene, Karolien Van der Putten The EU General Court upholds a decision from the Commission sanctioning a telecommunications operator for gun jumping and clarifies in its decision the applicable rules (Altice / PT Portugal)

246

On September 22, 2021, the EU General Court (GC) upheld a decision from the European Commission (Commission) by which it fined telecommunications operator Altice for gun jumping (T-425/18, Altice Europe v Commission). In particular, the GC affirmed that the Commission could impose two separate (...)

Hendrik Viaene, Karolien Van der Putten The EU General Court confirms that the Commission was able to fine a telecommunications twice for gun jumping, once for breaching the standstill obligation and once for breaching the failure to notify obligation (Altice)

39

On 22 September 2021, the GCEU upheld a decision from the EC by which it fined telecommunications operator Altice for gun-jumping. In particular, the GCEU affirmed that the EC could impose two separate fines : a fine for implementing a concentration prior to its clearance, and a fine for (...)

Hendrik Viaene, Karolien Van der Putten The EU Court of Justice sets aside a General Court ruling and finds that Belgian "excess profit rulings" may constitute a State aid scheme and remands the case back to the General Court to consider whether there was illegal State aid (Magnetrol International)

44

On 16 September 2021, the CJEU delivered its judgment on whether the Belgian system of excess profit rulings (EPRs) constituted a scheme or not. The CJEU set aside the GCEU’s judgment that annulled the EC’s decision qualifying the EPRs as an aid scheme. The CJEU referred the case back to the GCEU (...)

Hendrik Viaene, Karolien Van der Putten The EU General Court dismisses the application of two clothing manufacturers seeking to block the Commission from investigating tax rulings on transfer pricing (Nike / Converse)

48

On 14 July 2021, the GCEU dismissed the action brought by Nike and Converse against the EC decision to initiate a formal State aid investigation concerning certain advance tax rulings issued by the Dutch tax authorities for the benefit of Nike and Converse. Background In 2019, the EC decided (...)

Philip Bentley, Jacques Buhart, Frédéric Pradelles, Hendrik Viaene, David Henry, Mary Hecht, Max Küttner, Karolien Van der Putten The EU Commission fines investment banks €371M for participating in a European bonds trading cartel (Bank of America / Natixis / RBS / UBS / UniCredit / WestLB)

84

By decision of 20 May 2021, the EC found that Bank of America, Natixis, Nomura, RBS (now NatWest), UBS, UniCredit and WestLB (now Portigon) breached EU antitrust rules through the participation of a group of traders in a cartel on the primary and secondary markets for European Government Bonds (...)

Hendrik Viaene, Karolien Van der Putten The EU General Court upholds the Commission’s decision which declared that numerous beneficial tax rulings constituted illegal State aid in favour of an energy company (Engie)

49

On 12 May 2021 the GCEU confirmed the EC’s decision of 20 June 2018 that the tax rulings which allowed the Engie group to partially escape tax in Luxembourg constituted illegal State aid within the meaning of Article 107 (1) TFEU. Background As from September 2008, the Luxembourg tax (...)

Philip Bentley, Jacques Buhart, Frédéric Pradelles, Hendrik Viaene, David Henry, Mary Hecht The EU Commission imposes fines totalling €48M on 3 railway companies for participating in a cross-border customer allocation cartel (ÖBB / DB / SNCB)

75

On 20 April 2021, the EC issued its settlement decision by which it fined Deutsche Bahn (DB) and Société Nationale des Chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen (SNCB) a total of approximately EUR 48 million for participating in a cross-border customer allocation (...)

Hendrik Viaene, David Henry The EU Commission publishes guidance on the application of the referral mechanism set out in article 22 of the merger regulation to certain categories of cases

390

The European Commission wants to be able to block or conditionally approve transactions, mainly in the digital economy and in the pharmaceutical sector, even when the thresholds for notification are not met. In publishing its new Article 22 Guidance, the Commission has significantly expanded (...)

Philip Bentley, Jacques Buhart, Frédéric Pradelles, Hendrik Viaene, David Henry, Mary Hecht, Max Küttner, Karolien Van der Putten The EU Court of Justice dismisses all appeals brought by a Danish pharmaceutical company and five generic manufacturers against the judgments of the General Court and upholds a decision of the Commission on patent settlement agreements between the companies (Lundbeck)

120

On 25 March 2021, the CJEU dismissed all the appeals brought by Danish pharmaceutical company H. Lundbeck A/S and five generic manufacturers against the judgments of the GCEU, thus upholding a decision of the EC on patent settlement agreements between Lundbeck and five generic manufacturers (...)

Hendrik Viaene, Karolien Van der Putten The EU Court of Justice dismisses two telecommunication companies’ appeals on abuse of dominance charges on the grounds that it was not essential for the Commission to show indispensability because the case was not a refusal to supply case, it concerned the imposition of unfair conditions (Slovak Telekom) (Deutsche Telekom)

86

As the incumbent telecommunications operator in Slovakia, Slovak Telekom a.s. (ST) offers broadband services on its fixed copper and fibre optic networks. ST’s networks also include the local loop, i.e., the physical lines which connect the subscriber’s telephone termination point with the main (...)

Max Küttner, Mary Hecht, David Henry, Hendrik Viaene, Frédéric Pradelles, Jacques Buhart, Philip Bentley The EU Court of Justice reduces a fine imposed on a steel abrasives cartel on grounds of breach of the principle of equal treatment (Pometon)

73

On 18 March 2021, the CJEU ruled on the appeal by Pometon SpA against the GCEU’s judgment in the steel abrasives cartel case. The CJEU ruled that the GCEU had breached the principle of equal treatment when recalculating the EC’s fine imposed on Pometon, the only non-settling party in this case. (...)

Hendrik Viaene, Karolien Van der Putten The EU Court of Justice declares that the General Court erred in law by annulling a Commission decision which considered tax exemptions to sports clubs illegal State aid because the Commission does not have to consider the counterfactual tax environment when determining the legality of State aid (Fútbol Club Barcelona)

89

On 4 March 2021, the CJEU rendered its judgment in Case C-362/19, European Commission v Fútbol Club Barcelona, concerning State aid arising out of the taxation of professional sports clubs in Spain. In July 2016, the EC found that Spain had unlawfully implemented aid in the form of a (...)

Philip Bentley, Jacques Buhart, Frédéric Pradelles, Hendrik Viaene, David Henry, Mary Hecht The EU Commission imposes fines totalling €7.9M on a digital distribution company and 5 publishers for geo-blocking (Valve / Bandai Namco / Capcom / Focus Home / Koch Media / ZeniMax)

47

On 20 January 2021, the EC fined Valve Corporation and five publishers, Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax, a total of EUR 7.9 million for breaching antitrust rules by partitioning the EEA market. Background Valve, together with the five publishers, restricted (...)

Hendrik Viaene, Karolien Van der Putten The Court of Justice preliminarily rules that the end date of a bid-rigging offence is when the "essential characteristics" of the contract have been "definitively determined"(Kilpailu-Ja Kuluttajavirasto)

37

On 14 January 2021, the CJEU delivered a preliminary ruling in which it clarified when a bid-rigging cartel offence comes to an end. This issue is particularly relevant with regard to the imposition of fines within the limitation period. Background In April 2007, Fingrid Oyj, the company (...)

Hendrik Viaene The Belgian Supreme Court confirms Lower Courts’ rulings that appreciable affectation of competition and of trade between member states as required by Article 101 TFEU can be treated implicitly without failing to meet the required burden of proof (Fiat / Fortis Bank / TCI Auto Service)

230

I. The facts On 15 September 1993, an exclusive motor vehicle distribution agreement was signed between Fiat Group Automobiles Belgium NV and TCI Auto Service NV, as a result of which TCI was granted the exclusive distributorship for a number of towns. Fortis Bank NV gave a first call guarantee (...)

Hendrik Viaene The Belgian Competition Council finds that a directive adopted by a professional association imposing a maximum fee for a specific service constitutes an infringement by object of the Belgian Competition Act, but decides not to impose a fine, merely a publication obligation (National Chamber of Bailiffs)

158

BE31 [...] & Consorts/Chambre Nationale des Huissiers CONC-P/K-08/0016 Competition Council 08.12.11 I. The facts On 9 July 2008, a number of bailiffs lodged a complaint with the Belgian Competition Council claiming that the National Chamber of Bailiffs infringes Articles 2 and 3 of the (...)

Hendrik Viaene The Brussels Court of Appeal partially reforms interim measures decision of the President of the Belgian Competition Authority in that it limits the duration of the obligation to supply on the diamond market (De Beers / Spira BVBA)

123

I. The Facts The judgment of the Brussels Court of Appeal is one of a long line of decisions and court rulings taken by the European Commission, national competition authorities, the General Court and the Court of Justice concerning De Beers’ decision to alter its distribution system for rough (...)

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