The previous foreword for this publication was written in April 2011 by Ian S. Forrester, a long-time advocate of due process, and now a judge at the General Court of the EU. A few months later, the European Court of Human Rights adopted its landmark judgment in Menarini, ruling that, in light of the criminal nature of antitrust fines, Article 6 ECHR required that fining decisions imposed (...)
Judicial review
Dominance
The EU Commission refers Estonia to the Court of Justice for failing to transpose the ECN+ Directive
Antitrust: Commission decides to refer ESTONIA to the Court of Justice of the European Union for failing to transpose ECN+ Directive*
Today, the Commission decided to refer Estonia to the Court of Justice of the European Union for failing to fully transpose the ECN+ Directive (Directive (EU) (...)
The Australian Federal Court confirms that the Government is not entitled to compensation for the delayed entry of generic clopidogrel into the Australian market (Sanofi / Apotex)
What you need to know The Commonwealth has failed in its appeal against a first instance decision which rejected the Commonwealth’s application for compensation from two originator pharmaceutical companies, Sanofi and Bristol-Myers Squibb (BMS). The Commonwealth was seeking compensation for (...)
The European Court of Human Rights holds that the transmission of data lawfully obtained by the Dutch Public Prosecution Service to Dutch Competition Authority does not violate right to privacy and right to an effective remedy (Burando / Port Invest)
Burando Holding B.V. and Port Invest v. the Netherlands (applications nos. 3124/16 and 3205/16)
The applicant companies, Burando Holding B.V. and Port Invest B.V., are two Dutch companies involved in the collection of waste liquids from ships in the Rotterdam region. At the time of the (...)
The European Court of Human Rights holds that transmission of data lawfully obtained by the Dutch Public Prosecution Service to the Dutch Competition Authority does not violate the right to privacy and the right to an effective remedy (Janssen de Jong)
Janssen de Jong Groep B.V. and Others v. the Netherlands (no. 2800/16)
The applicant companies, Janssen de Jong Groep B.V., Janssen de Jong Infra B.V. and Janssen de Jong Infrastructuur Nederland B.V., are three Netherlands-based companies. Janssen de Jong Groep B.V. is the sole shareholder (...)
The European Court of Human Rights holds that the transmission of data lawfully obtained by the Dutch Public Prosecution Service to the Dutch Competition Authority does not violate the right to privacy and the right to an effective remedy (Ships Waste Oil Collector)
Ships Waste Oil Collector B.V. v. the Netherlands (no. 2799/16)
The applicant company, Ships Waste Oil Collector B.V., is a company based in the Netherlands involved in the collection of waste liquids from ships in the Rotterdam region.
The case concerns the transmission of data, lawfully (...)
The Spanish Court of Valencia applies the EU Court of Justice’s ruling on judicial damages estimation in a trucks cartel case (Tráficos Manuel Ferrer)
Shortly after the publication of the Tráficos Manuel Ferrer judgment by the Court of Justice of the European Union (CJEU) in response to a request for a preliminary ruling (16 February 2023), the judge from the Valencia court who had referred the questions to the CJEU delivered his judgment in (...)
The Belgian Federal Chamber of Representatives adopts Bill approving cooperation agreement that creates foreign direct investment screening mechanism
On 9 February 2023, the federal Chamber of Representatives adopted a bill (the “Bill”) which approves the cooperation agreement of 30 November 2022 (the “Agreement”) between the federal government, the regional governments and the communities establishing a foreign direct investment (“FDI”) (...)
The Spanish Superior Court of Justice of Cataluña rules that the Competition Authority can determine the scope of an antitrust penalty which excludes companies from public bids (MCV)
One of the matters of most serious concern for companies in Spain refers to the possibility of excluding companies from public bids as an antitrust penalty.
When adopting an antitrust decision which includes the prohibition to participate in public bids, the CNMC normally chooses to send the (...)
The European Court of Justice upholds the General Court’s ruling that only undertakings which fall within the definition of an interested party could challenge the grant of the new aid scheme (Solar Ileias Bompaina)
On 7 April 2022, the ECJ upheld the General Court’s ruling that Renewable Electricity Producer, Solar Ileias Bompaina, did not qualify as an ’interested party’ in its challenge against the new aid scheme introduced by Greece.
Key takeaways An ’interested party’ within the meaning of Article (...)
The EU General Court partially annuls a €35.7M fine on a Japanese airline (Japan Airlines and others)
In a judgment issued on 30th March 2022, the General Court of the European Union partially annulled the European Commission decision of 17 March 2017 fining Japan Airlines, and a number of other airlines, for having entered into arrangements relating to fuel and security surcharges found to be (...)
The US Court of Appeals for the Fifth Circuit holds that Standard Essential Patent holders may choose to only license end-product makers (Continental / Avanci)
This article has been nominated for the 2023 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
Even Apple’s and Tesla’s amicus briefs didn’t help: Continental, which is generally known for making tires but also in the telematics control unit (TCU) (...)
The Croatian High Administrative Court rejects the claims against the Competition Authority infringement decision in scheduled bus transport case (Presečki Grupa / Rudi-Express / Jambrošić Tours / Autobusni Prijevoznik Turist)
High Administrative court rejects the claims against the CCA infringement decision in scheduled bus transport case: CCA V Presečki Grupa D.O.O., Rudi-Express D.O.O., Jambrošič tours and Autobusni Prijevoznik Turist*
In its infringement decision of 7 October 2021, the CCA found that the bus (...)
The UK Competition Appeal Tribunal confirms infringement in paroxetine pay-for-delay case but slashes fines (Generics - UK / GlaxoSmithKline / Actavis / Xellia Pharmaceuticals / Merck / Alpharma)
The judgment was handed down by the Competition Appeal Tribunal ("CAT") in the paroxetine pay-for-delay case in 2018. However, the CAT decided to wait for a preliminary ruling from the European Court of Justice ("ECJ") on certain questions before determining the remaining grounds of appeal. (...)
The Russian Supreme Court adopts a decree providing clarifications on antitrust matters that arise in court proceedings
In March, the Russian Supreme Court adopted a Decree providing clarifications on antitrust matters (the "Plenum Decree") .
The Plenum Decree replaced most of the previous antitrust clarifications issued by the Supreme Commercial Court back in 2008. The new measure is comprehensive and covers (...)
The Slovakian Competition Authority publishes its annual report for 2019
The Antimonopoly Office of the Slovak Republic (hereinafter referred to as the "Office") has published its annual report on its website, in which it has evaluated and summarized its activities in the past year. In 2019, the Office imposed fines of over EUR 3.3 million, approximately one third (...)
The Saudi Arabian Competition Authority imposes a penalty on a refrigerating company for withholding information and denying access to company records (Abdullah Abar)
The General Authority for Competition announces the penalty imposed on Abdullah Abar and Sons Refrigerators Company*
Based on the functions and competencies of the General Authority for Competition in the enforcement of the competition system and as an extension of its role in protecting and (...)
The Italian Supreme Court establishes corporate criminal liability over foreign companies that fail to prevent crimes committed by their associates
The Italian Supreme Court issued decision No. 11626 of April 7, 2020, establishing jurisdiction in corporate criminal liability cases under Legislative Decree No. 231/2001 (“Decree”) over foreign companies that fail to prevent crimes committed by their associates in Italy.
As a consequence (...)
The Maltese Government approves amendments of the Competition Act
I. Background
Following the landmark constitutional judgements in the case of Federation of Estate Agents vs the Director General et, whereby the Constitutional Court decided that it was not constitutionally permissible for an Authority such as the Office for Competition (“OFC”) to impose (...)
The UK Competition Authority seeks powers to increase merger scrutiny, issue sectoral interim regulations and weaken judicial accountability
On 21 February 2019, the U.K. Competition and Markets Authority (CMA), at the U.K. government’s request, set out ‘wide-ranging and radical’ proposals to reshape U.K. competition enforcement and consumer protection regime.
These are proposals at the very earliest stage, and they remain far (...)
The German Government submits a draft bill for a register of economic crimes and administrative offenses
Good things come to those who wait? - The German Federal Ministry of Economics and Energy submits a draft bill for a so-called "register of competition"*
The idea of a nationwide “register of corruption” has haunted the German procurement law world for years. Now the German Federal Ministry (...)
The EU General Court dismisses parallel actions brought by two diamond dealers against the Commission’s decisions not to open an antitrust investigation into certain distribution agreements established by the world’s largest producer of rough diamonds (BVGD / Spira / De Beers)
I. Introduction
Any natural or legal person who can show a legitimate interest may lodge a complaint concerning an antitrust infringement as stipulated by article 7 of the Regulation No 1/2003. The Commission is not required to investigate each of the complaints lodged with it, but only to (...)
The Serbian Competition Authority proposes draft amendments to the law on the protection of competition
The 2009 Serbian Law on Protection of Competition is undergoing an overhaul. The first draft of the amendments, prepared jointly by the Ministry of Trade and the Commission for Protection of Competition, has been submitted for public debate. The initial round of consultations was held on 10 (...)
Judicial review and competition law: An overview of EU and national case law
To be asked to contribute a foreword is pleasant, if that which is to be published is of good quality. Happily, such is the present case. e-Competitions, a child of this electronic century, has been publishing articles on competition topics since 2004. The mode of publication was so novel to (...)
The German Federal Court of Justice decides on a dominant position resulting from the upstream possibility to restrict downstream competition (Reisestellenkarte)
On 3 March 2009, the German Federal Court of Justice reversed the judgement of the Higher Regional Court of Düsseldorf and remitted the case back for further proceedings. The question at stake was whether an undertaking could be regarded as dominant according to Art. 102 TFEU if due to its (...)
The EU Court of Justice states that it is possible to sever the offending provisions of the contract from the rest of its terms (Eco Swiss China)
Case C-126/97
Eco Swiss China Time Ltd ν Benetton International NV*
1. Where domestic rules of procedure require a national court to grant an application for annulment of an arbitration award where such an application is founded on failure to observe national rules of public policy, it (...)
The EU Court of Justice states that under a national system of mandatory road-haulage tariffs, the fact that collective agreements can be concluded allowing certain derogations from them does not have the effect of restricting competition (Autotransporti Librandi)
Case C-38/97
Autotrasporti Librandi Sne di Librandi F. & C. v Cuttica Spedizioni e Servizi Internazionali Srl
1. Articles 3(f) and (g), 5, 85, 86 and 90 of the Treaty do not preclude legislation of a Member State which provides for roadhaulage tariffs to be approved and brought into (...)
The EU Court of Justice states that a Member State conferring undertakings an exclusive right to provide a mooring service and charge it at a higher price to foreign shipping companies is not unlawful (Corsica Ferries)
Case C-266/96
Corsica Ferries France SA v Gruppo Antichi Ormeggiatori del Porto di Genova Coop, ari and Others*
1. Article 177 of the Treaty does not make reference to the Court subject to there having been an inter partes hearing in the proceedings in the course of which the national (...)
The EU Court of Justice states that competition law only applies to anti-competitive conduct engaged by undertakings on their initiative and not by national legislation (French Republic / Ladbroke Racing)
Joined Cases C-359/95 P and C-379/95 P
Commission of the European Communities and French Republic v Ladbroke Racing Ltd*
When the Commission receives a complaint alleging infringement of Articles 85 and 86 and of Article 90 of the Treaty, it may reject the complaint relating to Articles 85 (...)
The EU Court of Justice states that a non-profit operator is not an undertaking as it does not carry out an economic activity but rather an uncommercial act of involuntary subsidisation of one social group by another
(Sodemare)
Case C-70/95
Sodemare SA and Others v Regione Lombardia*
1. Community law, and Article 190 of the Treaty in particular, does not lay down conditions concerning the statement of reasons for national rules of general scope which fall within the sphere of Community law.
Apart from the fact (...)
The EU Court of Justice states that the derogations from Regulation 1184/2006 need to be strictly construed and the Commission must give adequate reasons in the event that it allows such a derogation (Florimex)
Joined Cases T-70/92 and T-71/92
Florimex BV and Vereniging van Groothandelaren in Bloemkwekerijprodukten v Commission of the European Communities*
1. It is the responsibility of the party alleging that an action is out of time, havingregard to the time-limits laid down in the last (...)
The EU Court of Justice states that French regional insurance is considered to carrying on economic activity in competition by managing life insurance companies (FFSA)
Case C-244/94
Fédération Française des Sociétés d’Assurance and Others ν Ministère de l’Agriculture et de la Pêche*
A non-profit-making organization which manages an old-age insurance scheme intended to supplement a basic compulsory scheme, established by law as an optional scheme and (...)
The EU Court of Justice clarifies the limits of national rules based on the directive on competition in the markets in telecommunications terminal equipment (Thierry Tranchant)
Case C-91/94
Criminal proceedings against Thierry Tranchant and Téléphone Store SARL, party liable in civil law*
Article 6 of Directive 88/301 on competition on the markets in telecommunications terminal equipment must be interpreted as precluding the application of national rules which (...)
The EU Court of Justice states that rules from Member States providing that tariffs for commercial inland waterway traffic be determined by freight commissions and made compulsory for all traders is not unlawful (Delta Schiffahrts)
Case C-153/93
Federal Republic of Germany v Delta Schiffahrts- und Speditionsgesellschaft mbH*
1. Whilst it is true that Article 85 of the Treaty is, in itself, concerned solely with the conduct of undertakings and not with measures adopted by Member States by law or regulation, (...)
The EU Court of First Instance holds that the Commission must explain its reasoning when it imposes a fine on a successor to the entity that infringed competition law (All Weather Sports)
Case T-38/92
All Weather Sports Benelux BV v Commission of the European Communities*
If it relates to several addressees and there is a problem with regard to liability for the infringement, a decision taken in application of the competition rules in the Treaty must include an adequate (...)
The EU Court of Justice concludes that a company is not considered an undertaking as it creates and collects route charges from users of air navigation services on behalf of the States that had created it (SAT / Eurocontrol)
Case C-364/92 SAT Fluggesellschaft mbH v European Organization for the Safety of Air Navigation (Eurocontrol)*
1. The Court has jurisdiction to give preliminary rulings on the interpretation of Treaty provisions pursuant to Article 177 of the Treaty, which establishes direct cooperation (...)
The EU Court of Justice states that Member States are required not to introduce or maintain in force measures which may render ineffective the competition rules applicable to undertakings (Reiff)
Case C-185/91
Bundesanstalt für den Güterfernverkehr v Gebrüder Reiff GmbH&Co. KG*
1. Although Article 85 of the Treaty, in itself, relates only to the conduct of undertakings and does not cover legislative measures or regulations adopted by Member States, the fact nevertheless remains (...)
The EU Court of Justice states that Member States are required not to introduce or maintain in force measures which may render ineffective the competition rules applicable to private traders in the economic sphere (Ohra)
Case C-245/91
Criminal proceedings against Ohra Schadeverzekeringen NV*
Although Article 85 of the Treaty, in itself, relates only to the conduct of undertakings and does not cover legislative measures or regulations adopted by Member States, the fact nevertheless remains that that (...)
The EU Court of Justice refuses to strike down a German Regulation prohibiting insurance companies from passing on commissions to their customers (Meng)
Case C-2/91
Criminal proceedings against Wolf W. Meng*
1. Although Article 85 of the Treaty, in itself, relates only to the conduct of undertakings and docs not cover legislative measures or regulations adopted by Member States, the fact nevertheless remains that that article, read in (...)
The EU Court of Justice holds that French regional social security offices involved in the management of the public social security system are not considered to be undertakings (Poucet)
Joined Cases C-159/91 and C-160/91
Christian Poucet v Assurances Générales de France (AGF) and Caisse Mutuelle Régionale du Languedoc-Roussillon (Camulrac) and Daniel Pistre
v
Caisse Autonome Nationale de Compensation de l’Assurance Vieillesse des Artisans (Cancava)*
The concept of an (...)
The EU Court of Justice states that the Commission can require all necessary information including documents from a party involved in the proceeding without undermining the rights of defence (Orkem)
Case 374/87
Orkem v Commission of the European Communities*
1. A decision is properly notified if it reaches the addressee and the latter is in a position to take cognizance of it. Accordingly, a company notified of a decision requiring information to be provided pursuant to Article 11 (...)
The EU Court of Justice holds that the approval by aeronautical authorities of air tariffs fixed by airlines involves a breach by the Member States of their obligations under the Treaties (Ahmed Saeed / Zentrale)
Case 66/86
Ahmed Saeed Flugreisen and Silver Line Reisebüro GmbH v Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V*
1. Bilateral or multilateral agreements regarding airline tariffs applicable to scheduled flights are automatically void under Article 85(2) of the Treaty: (i) in the (...)
The EU Court of Justice holds that French legislation requiring retailers of books to comply with minimum resale price imposed by publishers does not infringe competition law (Syndicat des libraires de Normandie / L’Aigle distribution)
Case 254/87
Syndicat des libraires de Normandie v L’Aigle distribution SA*
As Community law stands, the second paragraph of Article 5 of the EEC Treaty, in conjunction with Articles 3 (f) and 85 and 86, does not prohibit Member States from enacting legislation whereby the retail price of (...)
The EU Court of Justice holds that a Minister’s extension order which fixed quotas for wine growers and permitted fines to be imposed on anyone else who exceeded them was unlawful (BNIC / Aubert)
Case 136/86
Bureau national interprofessionnel du cognac v Yves Aubert*
1. The fact that an agreement has been entered into by two groups of traders in the framework of an organization subject to public law does not remove the agreement from the scope of Article 85 of the Treaty.
2. An (...)
The EU Court of Justice holds that a contract remains valid and enforceable as it is possible to sever the offending provisions of the contract from the rest of its provisions (Ciments et Bétons / Kerpen)
JUDGMENT OF THE COURT (FOURTH CHAMBER)
14 DECEMBER 1983
Société de Vente de Ciments et Bétons de l’Est SA v Kerpen & Kerpen GmbH & Co. KG (reference for a preliminary ruling from the Oberlandesgericht Saarbrücken)
Case 319/82*
1. Provisions in a contract concluded between a (...)
The UK Competition Appeal Tribunal upholds the Competition Authority’s decision to fine a pharmaceutical company and its former owners for excessive pricing (Advanz Pharma / Hg Capital / Cinven)
On 8 August 2023, the UK Competition Appeal Tribunal (“CAT”) delivered its judgment upholding the decision by the UK Competition and Markets Authority (“CMA”) against pharmaceutical company Advanz Pharma and its former owners Hg and Cinven (jointly, “Advanz”) for excessive pricing (see VBB on (...)
The UK Competition Appeal Tribunal upholds the Competition Authority’s decision to fine 3 drugmakers for excessive and unfair pricing of a critical medicine (Advanz / Cinven/ HgCapital)
On 8 August 2023, the UK Competition Appeal Tribunal ( CAT ) unanimously upheld a decision of the UK Competition and Markets Authority ( CMA ) which in July 2021 had imposed fines totalling more than £101 million on Advanz Pharma ( Advanz ) and two previous private equity owners, Cinven and (...)
The US Court of Appeals Ninth Circuit reverses a ruling against energy drink wholesalers based on the allegation that the energy drink manufacturer had violated the Robinson-Patman Act by providing promotional allowances to a mass merchandiser but not to the wholesalers (U.S. Wholesale Outlet & Distribution / Innovation Ventures)
Key Takeaways
The Ninth Circuit recently revived a portion of a price discrimination claim brought by wholesalers of the popular 5-Hour Energy drink against its manufacturer, which provided more favorable promotional terms to a mass merchandiser, while at the same time affirming a defense (...)
The Italian Regional Administrative Tribunal of Latium upholds the Competition Authority’s finding that a pharmaceutical company abused its dominant position by charging excessive prices for an orphan drug (Leadiant)
An Italian administrative court confirms the condemnation of a pharmaceutical company for charging excessive prices on an orphan drug*
Introduction
In Leadiant the Italian Competition Authority (ICA) found a pharmaceutical company, Leadiant, guilty of violating Article 102 TFEU for (...)
The Italian Council of State upholds the fine imposed by the Competition Authority on an FMCG company for entering into unlawful exclusivity agreements with retailers (Unilever Italia)
On 11 July 2023, the Italian Supreme Administrative Court (“Court”) upheld the fine imposed by the Italian Competition Authority (“ICA”) on Unilever for entering into unlawful exclusivity agreements with retailers, thus confirming the ICA’s highly restrictive view on the relevance and (...)
The Italian Council of State confirms the finding of an abuse of dominance against an FMCG company in the market for the distribution of impulse ice creams (Unilever Italia)
Introduction
By the judgment recently issued in the Unilever-AGCM case, the Italian Council of State (the Court) has uphold an infringement decision of the Italian Competition Authority (ICA) against Unilever . The ICA had found that Unilever and its distributors violated Article 102 TFEU. (...)
The Luxembourg Competition Authority takes note of a ruling by the EU Court of Justice which holds that a National Competition Authority may find a violation of the GDPR in the context of the examination of an abuse of a dominant position
Judgment of the CJEU: a national competition authority may find a violation of the GDPR in the context of the examination of an abuse of a dominant position*
In its judgment of July 4, 2023 in case C-252/21, the Court of Justice of the European Union (CJEU) ruled that a national competition (...)
The EU Court of Justice issues a landmark decision regarding the compliance of a major social network with the GDPR and competition law in collecting personal data and the related consent for the provision of customised advertising services (Meta)
On July 4, 2023, the Court of Justice of the European Union (“CJEU”) issued a landmark decision in Case C-252/21 regarding the compliance of a well-known social network with the GDPR (Regulation EU 2016/679) and competition law in collecting personal data and the related consent for the (...)
The EU Court of Justice confirms that National Competition Authorities may consider violations of data protection laws as part of their abuse of dominance assessments (Meta)
On 4 July 2023, the Court of Justice (“CJEU”) handed down its highly anticipated judgment in Case C-252/21 Meta v Bundeskartellamt on the interplay between EU competition law and the EU’s General Data Protection Regulation (the “GDPR”). The CJEU held that competition authorities can analyse a (...)
The EU Court of Justice holds that resale price maintenance is not automatically a restriction of competition by object (Super Bock)
Super Bock : RPM Not Automatically a Restriction of Competition By Object*
On June 29, 2023, the Court of Justice ruled on questions referred by the Lisbon Court of Appeals relating to alleged resale price maintenance (“RPM”) by Super Bock, a Portuguese beverage manufacturer. The Court of (...)
The Dutch District Court of Amsterdam accepts jurisdiction to adjudicate a damages claim against a Big Tech company fined by the EU Commission for abuse of dominance (Google Shopping)
Jurisdictional Ruling against Google Confirms Sumal’s Liability Test: Setting a Precedent?*
In a recent judgment of 31 May 2023, the Amsterdam District Court (the District Court) accepted jurisdiction to adjudicate a damages case against Google Netherlands B.V. (located in Amsterdam) as well (...)
The US Court of Appeal of the 9th Circuit partially upholds the district court’s judgment regarding a Big Tech company’s prohibition of third-party app stores and in-app-payment systems from operating on its proprietary iOS platform (Epic Games / Apple)
Untangling the 9th Circuit’s Ruling in Epic Games v Apple*
The 9th U.S. Circuit Court of Appeals ruled late last month on Epic Games’ appeal of the decision rendered in 2021 by the U.S. District Court for the Northern District of California in Epic Games v Apple, affirming in part and (...)
The EU Court of Justice confirms that the EU Commission can exclude a Member State from the territorial scope of a formal antitrust investigation without violating the principle of protection against parallel antitrust proceedings (Amazon)
On 20 April 2023, the European Court of Justice (“ECJ”) handed down a judgment which confirmed that the European Commission (“Commission”) can carve out the market of a Member State from the scope of an investigation and allow the Member State authority to investigate the same conduct for its (...)
The Belgian Supreme Court departs from its own caselaw and confirms the arbitrability of exclusive distribution agreements in landmark judgments (Thibelo / Stölzle-Oberglas)
On 7 April 2023, the Belgian Supreme Court held that the Belgian rules on the unilateral termination of exclusive distribution agreements of indefinite duration, as contained in Articles X.35 through X.40 of the Code of Economic Law (Wetboek van Economisch Recht / Code de droit économique – (...)
The EU Court of Justice rules that non-notifiable mergers can be reviewed under abuse of dominance rules (Towercast)
INTRODUCTION
On 16 March 2023, the Court of Justice of the European Union (CJEU) issued its keenly anticipated judgment in Towercast(Judgment), following a request for a preliminary ruling by the Court of Appeal, Paris (Court of Appeal). The Judgment clarifies that acquisitions by dominant (...)
The EU Court of Justice rules that non-notifiable merger deals can be challenged and reviewed under the abuse of dominance rules (Towercast)
In Short
The Development: The Court of Justice of the European Union ("ECJ") held that national competition authorities ("NCA") may investigate and block an M&A transaction that violates Article 102 of the Treaty on the Functioning of the European Union to the extent it is not reportable (...)
The EU Court of Justice rules that Article 102 TFEU permits ex post merger control, at the national level, with a non-Community dimension (Towercast)
The prohibition of abuse of a dominant position laid down by the Treaties permits an ex post control, at national level, of a concentration of undertakings with a non-Community dimension*
The temporal effects of a judgment of the Court confirming the applicability of that prohibition should (...)
The Italian Council of State confirms that a legal monopolist breached Article 102 TFEU by reserving an essential input for its own subsidiary (Hera / Herambiente)
Introduction
The issue of the special responsibility of a dominant undertaking under Article 102 TFEU to not impair competition has been considered by the Italian Council of State (the Court) in AGCM v Hera. In this case the Court determined an appeal lodged against an infringement decision (...)
The French Court of Appeal overturns the Competition Authority’s €444M fine on three laboratories for abuse of collective dominance in the pharma sector through a disparaging campaign against an "off-label" competitor (Novartis / Roche / Genentech)
The Court of Appeal quashed the French Competition Authority’s decision fining Novartis, Roche and Genentech EUR 444 million for abusing their collective dominant position, providing welcome clarity on the legal test to assess communications by pharmaceutical companies to the public and to (...)
The Spanish High Court of Madrid reinstates injunctive measures against an international football association (ESLC / UEFA / FIFA)
The 28th Section of the High Court of Madrid (Audiencia Provincial de Madrid), the court of appeal specialising in commercial and competition law in the Madrid region, has recently issued a decision reinstating certain interim measures it had earlier adopted in relation to the Super League (...)
The EU Court of Justice finds a major FMCG company liable for abuse of dominance due to exclusivity clauses imposed by its independent distributors on operators of sale outlets (Unilever Italia)
Abuse of a dominant position: exclusivity clauses in distribution contracts must be capable of having exclusionary effects*
The competition authority is obliged to assess that actual capacity to exclude by also taking into account the evidence submitted by the undertaking in a dominant (...)
The EU Court of Justice preliminarily determines that dominant firms can be held to account for abusive conduct even when third parties implement the infringement (Unilever Italia)
On 19 January 2023, the CJEU delivered its preliminary ruling in the case Unilever Italia Mkt Operations Srl v Autorità Garante della Concorrenza e del Mercato, C-680/20 (“AGCM”) (“Unilever”), on two questions posed by the Consiglio di Stato (Italian Council of State). The first related to the (...)
The EU Court of Justice confirms that an effects-based approach applies to exclusive dealing and clarifies the narrow circumstances under which the conduct of distributors can engage the liability of a dominant company (Unilever Italia)
On 19 January 2023, the EU Court of Justice, answering questions from the Italian Council of State, confirmed that the Intel effects-based approach applies also to exclusive dealing practices and held that competition authorities must duly examine economic evidence produced by dominant (...)
The EU Court of Justice issues a decision on the imputation of liability and treatment of exclusivity under the EU prohibition on abuse of dominance (Unilever Italia)
In its January 2023 Unilever Italia judgment, the European Court of Justice ("ECJ") ruled on two important practical aspects of the application of the EU prohibition on abuse of dominance under Article 102 TFEU.
Background
In December 2020, the Italian Consiglio di Stato made a request for (...)
The EU Court of Justice upholds the General Court’s judgment imposing a fine of approximately €20M on the Lithuanian national rail company for abuse of dominance (Lietuvos geležinkeliai)
Abuse of a dominant position: The Court of Justice upholds the judgment of the General Court imposing a fine of approximately € 20 million on the Lithuanian national rail company *
The Commission conducted a comprehensive analysis which makes it possible to establish to the requisite legal (...)
The EU Court of Justice upholds a finding of abuse of dominance by a national railway company in the Lithuanian freight market (Lietuvos geležinkeliai)
On 12 January 2023, the Court of Justice of the European Union (“ECJ”) upheld the General Court’s judgment fining the Lithuanian national railway company, Lietuvos geležinkeliai AB (“LG”), € 20 million for abusing its dominant position in the Lithuanian freight market (Case C-42/21 P). (...)
The EU Court of Justice AG Rantos argues that a football federation’s exclusion of a rival football competition is not a restriction by object and is necessary to protect the European Sport Model (ESLC / UEFA / FIFA)
Abstract
The Court of Justice of the European Union (CJEU) was requested to consider whether the Union of European Football Associations (UEFA), which (according to the Court) has “conferred on itself the exclusive power to organize pan-European competitions” between football clubs, could (...)
The Chinese Supreme People’s Court issues a ruling on resale price maintenance in the automobile retail sector which is likely to prompt more follow-on antitrust litigation (Miao Chong / SAIC-GM)
In Short
The Development: China’s Supreme People’s Court recently ruled for the plaintiff in Miao Chong v. SAIC-GM, which marked a rare triumph for a plaintiff in antitrust litigation as a follow-on to an administrative penalty decision. The plaintiff-consumer alleged that a joint venture (...)
The Seoul High Court upholds the South Korean FTC’s decision to sanction “self-preferencing” as an abuse of dominance (NAVER Shopping)
It would no longer be surprising to see competition or regulatory authorities blaming digital platforms for favouring their own services on their own platforms. In particular, in Europe, seeing the General Court’s Google decisions (see e.g., Johannes Persch’s blog posts on Shopping and (...)
The Paris Court of Appeal partially overturns the Competition Authority’s decision concerning a Big Tech company’s distribution practices, and reduces the fine imposed by two thirds (Apple)
In a ruling dated 6 October 2022, the Paris Court of Appeal partially annulled a 2020 decision by the French competition authority (the Autorité) against Apple and two Apple products wholesalers, Tech Data and Ingram Micro. This ruling struck a blow to the Autorité, as the period for one (...)
The Hamburg Regional Court denies an injunction and rules there is no obligation to supply in a case concerning a major soft drinks manufacturer (EDEKA / Coca-Cola)
Antitrust law may restrict price increases if the preconditions of a pricing abuse are met. However, decision practice on this topic is scarce. Therefore, EDEKA’s petition for a preliminary injuction filed against Coca-Cola claiming a pricing abuse and demanding supply at lower prices has (...)
The Ankara 8th Regional Administrative Court reverses the 13th Administrative Court’s decision that annulled the Turkish Competition Authority’s decision on an exemption application of an FMCG company for its selective distribution agreement (Johnson & Johnson)
This article aims to provide a case analysis of the Ankara 8th Regional Administrative Court’s (“Regional Court”) judgement annulling Ankara 13th Administrative Court’s (“Administrative Court”) judgement that annulled the Turkish Competition Board’s (“Board”) Johnson&Johnson Sıhhi Malzeme (...)
The EU General Court partially annuls the Commission’s decision against a Big Tech company for non-price based abuses of dominance (Google Android)
In September 2022, the General Court partially annulled the European Commission’s 2018 Google Android decision, which fined Google €4.3 billion for abuses of dominance relating to apps it offers for its Android mobile operating system (“OS”). The Court also found that the Commission’s (...)
The EU General Court confirms the Commission’s decision that a Big Tech firm imposed unlawful restrictions on manufacturers of Android mobile devices and mobile network operators in order to consolidate the dominant position of its search engine (Google Android)
The General Court largely confirms the Commission’s decision that Google imposed unlawful restrictions on manufacturers of Android mobile devices and mobile network operators in order to consolidate the dominant position of its search engine*
In order better to reflect the gravity and (...)
The EU General Court confirms abuse of dominance of a Big-Tech company through tying, with the real legacy of the case extending far beyond (Google Android)
This article has been nominated for the 2023 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
The General Court confirmed on 14 September 2022 the EC finding in 2018 that Google had abused its dominance by tying its Android operating system with its app (...)
The EU General Court partially annuls a Commission decision against a search engine but upholds the key elements (Google Android)
In its judgment of 14 September 2022 (the “Judgment”), the General Court partially upheld Google’s appeal against the Commission’s 2018 Google/Android decision, but upheld the decision’s most important and consequential elements, thus confirming that certain of Google’s practices regarding the (...)
The EU General Court partially upholds appeal against the EU Commission’s decision in relation to the abuse of dominance of a Big Tech in the mobile telecommunications sector (Google / Android)
In its Sept. 14 judgment in Google and Alphabet v. Commission, the European Union’s General Court partially upheld Google LLC’s appeal against the European Commission’s 2018 Google Android decision, but confirmed the decision’s most important and consequential elements.
The court held that (...)
The Australian Federal Court voids 38 contract terms used in contracts entered into by an IT solutions firm with many thousands of small businesses for being unfair (Fujifilm Business Innovation)
38 contract terms in 11 Fuji small business contracts declared unfair and void
The Federal Court today declared that 38 contract terms used in contracts entered into by Fujifilm Business Innovation Australia or Fujifilm Leasing Australia (together, Fuji) with many thousands of small (...)
The UK Competition Appeal Tribunal issues a decision which sets key considerations for market definition analysis (ComparetheMarket)
In a decision by the UK Competition Appeal Tribunal (CAT) dated 19 November 2020, the CAT fined Comparethemarket (CTM), a price comparison website a fine of £17.9 million for abuse of dominance in the market for price comparison services. CTM abused its position in the market by imposing wide (...)
The UK Competition Appeal Tribunal agrees with the appellant that a fine imposed for anticompetitive MFC clauses should be set aside on the basis that such infringements are not by object anticompetitive and the Competition Authority had failed to prove effects (ComparetheMarket)
The UK Competition Appeal Tribunal (CAT) on 8 August 2022 set aside a £17.9 million fine against price comparison website Compare The Market, criticising the Competition and Markets Authority’s (CMA) legal and evidential assessment of the case. The CAT found that the CMA’s “anecdotal (...)
The UK Competition Appeal Tribunal sets aside the decision of the Competition Authority on MFC clauses on the grounds that it had not demonstrated any appreciable adverse effects on competition to the requisite legal standard (ComparetheMarket)
On 8 August 2022 the Competition Appeal Tribunal (CAT) set aside the CMA’s infringement decision in its Compare The Market investigation relating to the use of wide MFN clauses. The CAT concluded that the CMA’s definition of the relevant market in the decision was materially wrong and that (...)
The Uk Competition Appeal Tribunal rejects two-sided market analysis for multi-sided platforms (ComparetheMarket)
UK Court Rejects Two-Sided Market Analysis for Multi-Sided Platforms*
The United Kingdom Competition Appeal Tribunal (the “Tribunal”) has forcefully rejected two-sided market analysis in a well-reasoned judgment that provides a thorough and insightful discussion of how to define markets (...)
The Israeli Supreme Court gives a landmark ruling to support private enforcement and class actions claims against monopolists for charging unfair and excessive prices (Gafniel / Coca-Cola)
On July 26, 2022, the Israeli Supreme Court handed down a precedent-setting ruling in the Central Bottle Company (Coca-Cola Israel) case (Permission for Civil Appeal Gafniel v. Central Bottle Company Ltd.). The court determined the Economic Competition Law enables would-be plaintiffs to sue (...)
The EU General Court annuls the Commission’s decision imposing a near-billion euro fine on a chip manufacturer for exclusivity payments to phone producer (Qualcomm)
The judgment is a rare full annulment in an abuse of dominance case, and the first of an Article 102 TFEU decision adopted by Commissioner Margrethe Vestager.
Background
On 24 January 2018, the European Commission (EC) imposed a fine of EUR 997 million on Qualcomm for breaching Article 102 (...)
The EU General Court annuls the Commission’s decision regarding a dominant chip manufacturer as a result of insufficient analysis of anticompetitive effects and on procedural grounds (Qualcomm)
On June 15, 2022, the EU General Court (GCEU) annulled the EU Commission’s (EC) decision C (2018) 240 final dated January 24, 2018 in Case AT.40220 in which the EC had imposed a fine of EUR 997.439 million on Qualcomm Inc. (Qualcomm) for having allegedly abused its dominant position on the (...)
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 French Supreme Court rejects an appeal by a pharmaceutical company which alleged that a €21M fine imposed by the Competition Authority was erroneous (Janssen-Cilag)
On 1 June 2022, the French Supreme Court (the “Supreme Court”) entirely dismissed the appeal of Janssen-Cilag (“Janssen”) and its parent company Johnson & Johnson against a judgment of the Paris Court of Appeal (the “Court of Appeal”) of 11 July 2019 in the Durogesic® case. However, this (...)
The French Supreme Court agrees with the Paris Court of Appeal’s decision reducing a €25M fine to €21M for abuse of dominance by obstructing the entrance of generic drugs onto the market (Janssen-Cilag)
On 1 June 2022, the French Supreme Court (Cour de cassation) upheld the judgment of the Paris Court of Appeal, which in turn largely upheld the 2017 decision of the French Competition Authority (FCA) to impose fines of EUR 25 million on Janssen Cilag and its parent company Johnson & (...)
The Ankara Regional Administrative Court partially annuls a decision by the Competition Authority which imposed restrictive interim measures on an e-commerce platform for alleged abusive self-preferencing conduct (Trendyol)
Until recent times, an interim measure decision of the Turkish Competition Authority (“TCA”) was something hard to come by. However, with the growing prominence of digital markets and the equally strong response from the competition authorities, that situation has changed as well. The latest (...)
The Amsterdam Court of Appeal rules that two Dutch collective rights organisations abused their joint dominant position by applying unequal conditions when licensing music to cafés and restaurants (Buma / Stemra)
The Amsterdam Court of Appeal has ruled that Buma/Stemra has abused its dominant position in relation to suppliers of music for cafés and restaurants. Buma/Stemra applied unequal conditions to streaming services and failed to take measures to remove that inequality. Buma/Stemra was ordered to (...)
The New Zealand Competition Authority files an appeal against a record-breaking fine for misleading consumers calling the fine "manifestly inadequate" (Vodafone)
Commission appeals record $2.25m fine in Vodafone FibreX case*
The Commerce Commission has filed an appeal in the High Court against a record $2.25 million fine imposed on Vodafone NZ Limited (Vodafone) for its offending under the Fair Trading Act during its FibreX advertising campaign. (...)
The EU Court of Justice preliminarily determines that discriminatory access to data may constitute an abuse of a dominant position (Enel)
On 12 May 2022, the European Court of Justice ("the Court") delivered a preliminary ruling on abuse of dominance through the exploitation of data. As the historic monopolist, ENEL had access to customer data which it used to strengthen its position.
Key takeaways ENEL prevented its (...)
The Paris Court of Appeal rules that a Big Tech firm did not abruptly terminate a contract with an advertising partner because the termination was objectively justified and a legitimate exercise of commercial freedom (Ulysse / Google) Free
On March 11, 2022, the Paris Court of Appeals overturned in its entirety a May 31, 2019 judgment of the Paris Commercial Court, which had ordered Google to compensate an advertiser, Ulysse Service (’Ulysse’), for the abrupt termination of established commercial relationships. In this case, the (...)
The Croatian High Administrative Court strikes out a claim by a food wholesaler which sought to overturn a fine for the implementation of unfair trade practices (Kaufland Hrvatska)
UTPS: ANOTHER LEGALLY VALID DECISION: HIGH ADMINISTRATIVE COURT DISMISSES APPEAL OF RE-SELLER KAUFLAND*
The High Administrative Court of the Republic of Croatia dismissed the appeal of the re-seller Kaufland Hrvatska k.d. from Zagreb and upheld the ruling of the Administrative Court in (...)
The Brazilian Competition Authority suspends exclusivity contracts on wellness platforms market (Gympass / Totalpass)
The Administrative Council for Economic Defence (CADE) has prohibited corporate wellness platform Gympass from executing exclusivity contracts with its clients. In its decision, the CADE considered such arrangements as potentially exclusionary as they prevent new entrants in the market from (...)
The UK Competition Authority grants a claim for damages against a railway company (Achilles / Network Rail Infrastructure)
The Competition Appeal Tribunal (CAT) has granted a claim for damages by Achilles Information Limited (“Achilles”) against Network Rail Infrastructure Limited (“Network Rail”).
The Judgment is the CAT’s first damages award arising from a standalone claim since 2016, and follows the CAT’s (...)
The EU General Court annuls the decision of the Commission rejecting a complaint against a State-owned logistics operator concerning its alleged abuse of dominance on the market for rail freight transport services in Poland (PKP Cargo)
The General Court annuls the decision of the Commission rejecting a complaint against PKP Cargo, a company controlled by the Polish State, concerning an alleged abuse of its dominant position on the market for rail freight transport services in Poland*
The General Court examines for the (...)
The Larnaca District Court issues an award of €257K to a grain distributor and retailer as compensation for suffering from predatory pricing (AGS Agrotrading / Cyprus Grain Commission)
Cyprus Courts issue their first judgment awarding civil law damages for breach of competition laws.
In the first decision issued by the Cyprus Courts on damages to a corporation as a result of infringement of competition laws, the Larnaca District Court awarded on 9 February 2022 the total (...)
The EU General Court rules that the Commission may not refer an abuse of dominance case to the Polish Competition Authority because of systemic failings and general deficiencies in the rule of law (Sped-Pro)
The General Court annuls Commission’s decision declining a complaint against a company controlled by Poland, about an abuse of dominant position on the polish market of rail freight transport services.
I. The parties
The parties of this judgment are Sped-Pro (the applicant), a company (...)
The EU General Court rejects an appeal to overturn a Commission decision which made the commitments of a gas company binding to address concerns on the wholesale supply of gas in Central and Eastern Europe (Gazprom)
The General Court dismisses the action brought against a decision by the Commission to make binding on Gazprom commitments proposed by the latter in order to address competition concerns raised by the former in relation to the national markets for the upstream wholesale supply of gas in the (...)
The EU General Court overturns the Commission’s decision to fine a semiconductor chip manufacturer for €1.06 billion for abusing its dominant position (Intel)
This article has been nominated for the 2023 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On 26 January 2022 the General Court (GC) issued its latest judgment in the Intel case, faulting fundamental aspects of the Commission’s original decision (...)
The EU General Court annuls most of the Commission’s decision to impose a fine of € 1.06 billion on a semiconductor company for abuse of dominance on the global market for x86 processors (Intel)
General Court overturns Commission’s Intel decision On 26 January 2022, the General Court of the European Union annulled most of the decision of the European Commission (“Commission”), which had imposed a fine of € 1.06 billion on Intel for having abused its dominant position on the worldwide (...)
The EU General Court annuls a €1.06B fine imposed by the Commission on a chip maker based on economic evidence (Intel)
Three’s a charm for Intel: On judicial review of economic evidence to rebut a legal presumption*
In 2009, the European Commission imposed what was then a record-breaking fine of EUR 1.06 billion on Intel for abuse of dominance. Intel’s initial action for annulment was dismissed by the (...)
The EU General Court annuls the Commission’s landmark decision fining a semiconductor company for €1.06B for abuse of dominant position (Intel)
The EU General Court ("GC") annulled the European Commission’s €1.06 billion antitrust fine imposed on Intel in 2009 for allegedly abusing its dominant position in x86 Central Processing Units ("CPUs") by offering loyalty rebates to customers, excluding competitors such as AMD. The GC held (...)
The EU General Court confirms the critical role of robust economic analysis in abuse of dominance cases (Intel)
After more than two decades, the Intel saga may have finally ended with the General Court’s judgment of 26 January 2022. The judgment—which had at its core the use of the ‘as-efficient competitor’ test in the context of loyalty rebates―confirms the critical role of robust economic analysis in (...)
The EU General Court annuls the Commission’s decision finding that rebates granted by a large semiconductor chip manufacturer resulted in an abuse of dominance (Intel)
In a judgment issued today, the General Court of the European Union has annulled the part of the EU Commission’s decision of 13 May 2009 finding that rebates granted to Intel’s major OEM customers infringed Article 102 TFEU. The Court also annulled the fine of € 1.06 billion imposed on Intel. (...)
The EU General Court annuls in part the Commission’s decision which imposed a fine of €1.06B on the world’s largest semiconductor chip manufacturer for applying an abusive rebate policy (Intel)
In May 2009, the EC levied a fine on Intel of €1.06 billion for breaching Article 102 TFEU. The abuse of dominant position happened when Intel granted discounts to CPU makers on condition that they bought all of the x86 processors from Intel. Furthermore, Intel had also made payments at (...)
The EU General Court annuls in part the Commission’s decision imposing a fine of €1.06B on the world’s largest semiconductor chip manufacturer (Intel)
The General Court annuls in part the Commission decision imposing a fine of € 1.06 billion on Intel*
The Commission’s analysis is incomplete and does not make it possible to establish to the requisite legal standard that the rebates at issue were capable of having, or likely to have, (...)
The EU General Court partially annuls the Commission’s decision to impose a €1.06B fine on a semiconductor chip manufacturer for its abuse of dominance (Intel)
On 26 January 2022, the General Court ("GC") partially annulled the European Commission’s decision to impose a EUR 1.06 billion fine on Intel for abusing its dominant position ("Decision"). The fine was annulled in full. Applying the principles outlined in the European Court of Justice’s (...)
The EU General Court annuls the Commission’s decision which found that a semiconductor chip manufacturer had abused its dominant position and imposed a fine of €1.06B (Intel)
On January 26, 2022, the EU General Court (the Court) annulled the European Commission’s (the Commission) decision that Intel had abused its dominant position regarding its x86 central processing unit (CPU) computer chips and the imposition of a €1.06 billion fine. The judgment demonstrates (...)
The EU General Court awards €1.8M compensation in favour of a German telecommunications company against the EU Commission for failure to repay default interest from wrongful assessment of abuse of dominant position in the Slovak market for broadband (Deutsche Telekom)
The General Court awards Deutsche Telekom compensation in the amount of approximately € 1.8 million for the harm which it suffered as a result of the European Commission’s refusal to pay it default interest on the amount of the fine which it had unduly paid for an infringement of competition (...)
The US State of New York AG leads a multi-State coalition in appealing the District Court’s dismissal of their lawsuit against a social media company for its monopoly (Facebook)
Attorney General James Leads Multistate Coalition in Continuing Fight to End Facebook’s Illegal Monopoly*
NEW YORK – New York Attorney General Letitia James today led a bipartisan coalition of 48 attorneys general from around the nation in continuing to fight to end Facebook’s illegal (...)
The US Court of Appeals for the DC Circuit hears an appeal brought by 48 State Attorney Generals against a ruling by a District Court in a Big Tech refusal to deal case (Meta)
Application of the Proper ‘Outer Boundary’ of Antitrust Liability for Alleged Refusals to Deal in New York v Facebook*
Introduction
The States brought an antitrust complaint against Facebook alleging that various conduct violated Section 2 of the Sherman Act. The ICLE brief addresses the (...)
The US District Court for the District of Columbia denies a Big Tech firm’s motion to dismiss the FTC lawsuit alleging an unlawful monopoly acquired through killer acquisitions and barring nascent competitors from their platform (Facebook)
Observations on the Court’s Rejection of Facebook’s Motion to Dismiss the FTC’s Amended Antitrust Complaint*
The FTC filed an antitrust lawsuit against Facebook (now Meta Platforms Inc.). Judge James E. Boasberg dismissed it. The FTC then filed an amended complaint. And the same judge just (...)
The US District Court for the District of Columbia rejects a social network’s Motion to Dismiss in a lawsuit brought by the FTC which seeks to claim the firm abused its dominance by acquiring potential future rivals (Meta)
FTC’s Antitrust Suit Against Facebook Survives Motion to Dismiss*
On January 11, 2022, the U.S. District Court Judge James Boasberg denied Facebook’s motion to dismiss the FTC’s Amended Complaint which alleges that Facebook maintained a monopoly in personal social service network market in (...)
The Croatian High Administrative Court upholds the Competition Authority’s decision fining a watermelon re-seller for imposing unfair trading practices (Fragaria)
UTPS: HIGH ADMINISTRATIVE COURT DISMISSES APPEAL OF RE-SELLER FRAGARIA*
The High Administrative Court of the Republic of Croatia dismissed the appeal of the re-seller FRAGARIA and upheld the ruling of the Administrative Court in Zagreb of 16 December 2020 rejecting the claim for cancellation (...)
The Romanian High Court of Cassation and Justice confirms a telecommunications operator abused its dominant position and reduces the fine imposed by the Competition Authority (Vodafone)
The High Court of Cassation and Justice confirmed the abuse of dominant position of Vodafone*
The High Court of Cassation and Justice irrevocably confirmed the violation of the Competition Law by Vodafone which abused of its dominant position in relation with SC Netmaster Communications SRL. (...)
The Croatian High Administrative Court dismisses and appeal against the Competition Authority’s decision that fined a fruits and vegetable company for the imposition of unfair trading practices (NTL)
UTPS: HIGH ADMINISTRATIVE COURT DISMISSES APPEAL OF RE-SELLER NTL*
On 11 November 2021 the High Administrative Court of the Republic of Croatia dismissed the appeal of the re-seller Narodni trgovački lanac d.o.o. Sesvete (NTL) and upheld the ruling of the Administrative Court in Zagreb of 9 (...)
The EU General Court delivers a judgment which confirms the Commission’s decision and finds a Big Tech company guilty of abuse of dominance by favouring its own comparison shopping services on its general result pages (Google shopping)
Introduction
On 10 November 2021, the General Court (“the Court”) delivered its judgment in case T-612/17, Google and Alphabet v Commission, largely upholding the European Commission’s 2017 decision in Google Search (Shopping). This is a landmark (and very aggressive) judgment and a major (...)
The EU General Court confirms the EU Commission’s decision to fine a Big Tech company for abusing its dominant position in online search by discriminating against comparison shopping services to favour its own offering (Google Shopping)
Google’s flagship product is the Google search engine, which provides search results to consumers, who pay for the service with their data. Almost 90% of Google’s revenues stem from adverts, such as those it shows consumers in response to a search query. In 2004, Google entered the separate (...)
The EU General Court confirms the Commission’s decision finding a Big Tech company guilty of abuse of dominance by favouring its own comparison shopping service on its general results pages (Google Shopping)
With its judgment of 10th November 2021, Europe’s General Court did not just dismiss Google’s appeal against the European Commission’s Google Search (Shopping) decision, uphold the fine, tell gatekeepers “don’t be evil,” and remind everyone that Europe ensures equal opportunities. The Court (...)
The EU General Court confirms that “self-preferencing” by a Big Tech company can cause abuse of dominance violation (Google Shopping)
On 10 November 2021, the European General Court (“EGC” or “Court”) delivered its landmark Google Shopping judgment, the first judicial pronouncement on “self-preferencing” as a viable theory of harm under Article 102 TFEU. The EGC fully endorsed the European Commission’s (“Commission”) (...)
The EU General Court upholds a €2.42B fine imposed on a Big Tech company and dismisses an appeal against the Competition Authority’s decision (Google Shopping)
The General Court has today dismissed Google’s appeal of the European Commission’s Google Shopping Decision from June 2017 and has upheld the EUR 2.42 billion fine imposed on Google – a record fine at the time.
The General Court agreed with the European Commission’s finding (in its vast (...)
The EU General Court largely dismisses a Big Tech company’s appeal against the Commission’s decision finding it had abused its dominant position by favoring its own comparison shopping service (Google Shopping)
The General Court largely dismisses Google’s action against the decision of the Commission finding that Google abused its dominant position by favouring its own comparison shopping service over competing comparison shopping services*
The General Court upholds the fine of €2.42 billion (...)
The Croatian Administrative Court in Zagreb upholds the fine against a food wholesaler for using its market power to implement unfair trade practices (Kaufland Hrvatska)
UTPS: ADMINISTRATIVE COURT IN ZAGREB UPHOLDS CCA DECISION SANCTIONING KAUFLAND HRK 1.1 MIL FOR IMPOSITION OF UNFAIR TRADING PRACTICES*
The Administrative Court in Zagreb completely rejected the statement of claim of the re-seller Kaufland Hrvatska k.d. in the administrative dispute against (...)
The Cypriot Administrative Court upholds the Competition Authority’s decision to impose a fine of €2 million for anticompetitive practices in the supply of raw cow milk (Pancyprian Organization of Cattle Farmers)
The Administrative Court has upheld the decision of the Commission for the Protection of Competition and the fine of €2.100.000 imposed on the Pancyprian Organization of Cattle Farmers (POCF) Public Ltd for infringements of the Protection of Competition Law of 2008.*
The Administrative Court (...)
The Austrian Cartel Court finds that a digital toll company abused its dominance by refusing to deal with a company seeking access its official webshop (ASFINAG)
Refusal to deal is a “rare” animal in case law regarding the abuse of a dominant position under Art 102 TFEU and the respective provisions under national law of the EU member states.
It is therefore noteworthy that the Austrian Supreme Court (in its capacity as Appellate Cartel Court) (...)
The US Court of Appeals for the Ninth Circuit dismisses the class action brought on behalf of indirect purchasers alleging that a chip manufacturer abused its dominant position by refusing to sell chips to manufacturers that did not pay above-market royalty rates to license its patents (Qualcomm / Stromberg)
On September 29, 2021, the Ninth Circuit vacated the class certification order in Stromberg et al. v. Qualcomm, an antitrust class action brought on behalf of indirect purchasers alleging that Qualcomm monopolized the market for modem chips by refusing to sell chips to manufacturers that did (...)
The UK Competition Authority along with EU Member States cracks down on excessive pricing in the pharmaceutical sector (Pfizer / Flynn / Actavis)
Competition authorities have been traditionally reluctant to pursue excessive pricing cases since many of them had failed on the facts. However, in recent years, there has been a resurgence of the topic in pharma-related cases.
In particular, the national competition authorities have led the (...)
The Croatian Administrative Court in Split dismisses an appeal against unfair trading allegations on the grounds that the claim was made outside of the legally permitted window (Agro Gold)
ADMINISTRATIVE COURT IN SPLIT DISMISSES THE UNTIMELY CLAIM OF AGRO GOLD*
The Croatian Competition Agency fined AGRO GOLD d.o.o. from Opuzen HRK 75,000 for a serious infringement of the Croatian Act on the prohibition of unfair trading practices in the business-to-business food supply chain. (...)
The EU General Court dismisses the action brought against the Commission’s decision to initiate the formal investigation procedure against two shoe retail companies for transfer pricing (Nike / Converse)
Tax rulings issued to Nike and Converse by the Netherlands tax administration: the General Court dismisses the action brought against the Commission’s decision to initiate the formal investigation procedure*
The Commission complied with the procedural rules, and neither failed to fulfil its (...)
The German Supreme Court rules that car manufacturers cannot restrict the sales of their cars and spare parts in the tuning industry (Porsche-Tuning II)
In a decision of 6 July 2021, published in September 2021, the German Federal Court of Justice ("FCJ") ruled that restrictive clauses in retail and service agreements between Porsche and its authorised distributors were in breach of competition law. Porsche could not prohibit its authorised (...)
The German Federal Court of Justice rules that a car manufacturer’s selective distribution system limiting the supply of new vehicles and spare parts to tuning services providers is a by-object restriction (Porsche Tuning II)
On 6 July 2021, the German Federal Court of Justice (“FCJ”) upheld an injunction against Porsche and its German distributor (“Porsche” or the ”Defendants”) in favor of an industry association whose members manufacture and distribute customized parts for tuning purposes (the “Association”). The (...)
The Paris Court of Appeal rejects a claim of abuse of dominance in exclusivity arrangements by a syndicate of industrials active in the nautical sector against an organizer of trade shows (Fédération des Industries Nautiques / Reed)
On July 1st 2021, the Paris Court of Appeal (the “Court”) overruled a judgment from the Paris Court of First Instance (Tribunal de Grande Instance) in a case opposing the Fédération des Industries Nautiques (“FIN”), a syndicate of industrials active in the nautical sector, and Reed Exposition (...)
The US District Court for the District of Colombia dismisses a case filed by the FTC against a Big Tech company due to the lack of plausible evidence that the company has monopoly power in the personal social networking services market (Facebook)
Facebook Wins First Antitrust Battle: The FTC and State Enforcers Fail to Establish (For Now) Facebook’s Monopoly on Social Media Networks (with update)*
In late 2020, the Federal Trade Commission (FTC) and the attorneys-general (AGs) from 48 states filed nearly identical antitrust lawsuits (...)
The US District Court for the District of Columbia grants motions to dismiss two parallel antitrust complaints filed by the FTC and a group of State AGs against a social media company for monopolization, with the FTC being allowed to file an amended complaint in 30 days (Facebook)
On June 28, 2021, Judge James E. Boasberg of the U.S. District Court for the District of Columbia granted Facebook’s motions to dismiss two parallel antitrust complaints filed by the Federal Trade Commission (FTC) and a group of state enforcers. The complaints accused Facebook of illegally (...)
The Dutch Trade and Industry Appeals Tribunal upholds the annulment of the nearly €41M abuse of dominance fine imposed by the Competition Authority against a railway company (Nederlandse Spoorwegen)
On 1 June 2021 the Dutch Trade and Industry Appeals Tribunal (“CBb”), which is the highest administrative court in the Netherlands, upheld the annulment of the nearly € 41 million abuse of dominance fine imposed by the Authority for Consumers and Markets (“ACM”, the Dutch competition (...)
The Danish Competition Appeals Tribunal upholds the Competition Authority’s decision stating that a print circulars distributor abused its dominant position (FK Distribution)
Danish Competition Appeals Tribunal: FK Distribution has abused its dominant position*
The Danish Competition Appeals Tribunal has upheld a June 2020 decision by the Danish Competition Council stating that FK Distribution abused its dominant position on the market for distribution of (...)
The Danish Competition Appeals Tribunal upholds a decision by the Competition Authority against the biggest distributor of unaddressed mail for abuse of dominant position by tying its sale of print circulars with its sale of viewing of circulars on several of its digital platforms (FK Distribution)
On the 27th April 2021, the Danish Competition Appeals Tribunal (“DCAT”) upheld a June 2020 decision by the Danish Competition Council (“DCC”). The DCC concluded that FK Distribution (FK), as the biggest distributor of unaddressed mail (print circulars) in Denmark, had abused its dominant (...)
The Delhi High Court upholds the Competition Authority’s order directing an investigation into the privacy policy rolled out by a Big Tech company (WhatsApp)
KEY POINTS
Mere pendency of some issues before the Hon’ble Supreme Court of India (“Supreme Court”), or any of the High Courts does not necessarily bar CCI from exercising jurisdiction otherwise vested with it under the Act.
BRIEF FACTS
Whatsapp LLC (“WhatsApp”) is the proprietor of the (...)
The Delhi High Court reviews the Competition Authority’s inquiry into a Big Tech company’s data privacy policy (WhatsApp)
Delhi High Court Judgement on CCI Inquiry into WhatsApp’s new data privacy policy in India*
While reporting on the initial media news in my earlier blog on the same topic published on 23 April 21 , I had promised to come back with a detailed reporting on the above judgment which was then (...)
The UK Competition Appeal Tribunal confirms the Competition Authority’s settlement policy following the appeal of a musical instrument company (Roland)
Roland UK ("Roland") appealed the level of the penalty imposed by the Competition and Markets Authority ("CMA") for engaging in resale price maintenance ("RPM") in relation to the supply of electronic drums. Roland argued that the Competition Appeal Tribunal ("CAT") should reduce the penalty (...)
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)
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 (...)
The Dusseldorf Higher Court doubts the compatibility with EU law of the Competition Authority’s approach of linking data protection and competition law to find an abuse of dominance and files a request for a preliminary ruling (Facebook)
Is Facebook abusing its dominant position in the market by collecting data on its own platforms and on third-party websites and combining it in a large data pool? The Federal Cartel Office (“FCO”) has decided that unless the users consent to the use of the data, Facebook is abusing its (...)
The Indian Gujarat High Court grants a stay on the Competition Authority’s interim order to re-list the properties of two hotel companies on several online hotel booking portals (MMT-Go / Treebo / FabHotels)
The CCI issued an interim order under Section 33 of the Competition Act directing MakeMy Trip India Pvt. Ltd. (MMT) and Ibibo Group Private Limited (Go-Ibibo) (together MMT-Go) to re-list properties of FabHotels and Treebo on their online hotel booking portals. This order was passed in the (...)
The UK Competition Appeal Tribunal provides guidance for post-Brexit permission to serve out of the jurisdiction applications and confirms that damages occasioned by anti-competitive conduct will not be narrowly construed (Epic Games / Apple / Google)
The Tribunal issued its combined permission to serve out of the jurisdiction judgment in Epic Games v Apple (the Apple Claim) and Epic Games v Google (the Google Claim) on 22 February 2021, declining permission for service on Apple Inc. and granting permission for service for a subset of (...)
The Paris Commercial Court imposes a €1.2 million fine on a Big Tech company for abuse of a dominant position against a telephone directory services company (Oxone Technologies / Google)
In the context of a stand-alone action – which falls under the new provisions resulting from the transposition of the Damages Directive – the Paris Commercial Court ruling at first instance orders Google to pay EUR 1,2 million in damages to Oxone, a telephone directory services company. Oxone (...)
The Paris Commercial Court rules that a Big Tech company should pay €1.27 million in antitrust damages for abuse of its dominant position in the online search advertising market (Oxone Technologies / Google)
Following a stand-alone claim filed by a directory enquiry services provider, the Paris Commercial Court ruled, on 10 February 2021, that Google holds a dominant position in the online search advertising market through Google Ads and abuses that position by setting up rules which are “neither (...)
The EU Court of Justice upholds the General Court’s ruling finding that an information request issued by the Commission as part of its investigation into a Big Tech company’s predatory pricing practices is valid (Qualcomm)
On 28 January 2021, the European Court of Justice ("ECJ") upheld a ruling of the General Court finding that an information request issued by the EU Commission, as part of its investigation into Qualcomm’s predatory pricing practices, did not breach the principles of necessity and (...)
The EU Court of Justice confirms the Commission’s power to issue a request for additional information after a statement of objections (Qualcomm)
On 28 January 2021, the European Court of Justice (“ECJ”) handed down a judgment in Case C-466/19 P (Qualcomm Inc. and Qualcomm Europe v. European Commission).
Following a complaint submitted in 2010 by Icera Inc., a producer and distributor of soft chipsets which deliver high-performance (...)
The Austrian Supreme Court confirms that long-term contracts for the import of Russian natural gas into Austria did not constitute an abuse of market power through discrimination
On 25 January 2021, the Supreme Court issued a decision on long-term contracts for the import of Russian natural gas into Austria (16 Ok 3/20g). The contracts had been concluded in 2006 for the supply of unstructured natural gas. All of the contracts expired on 31 December 2027. At the time of (...)
The Luxembourg Administrative Tribunal rules for the first time on the Competition Authority’s competence in matters of ex post control of concentrations in the energy sector (Fédération des Artisans / Encevo / Enovos Luxembourg / Paul Wagner / Fils)
I. Introduction
On January 25, 2021 the Administrative Tribunal of the Grand Duchy of Luxembourg (hereinafter the “Administrative Tribunal”) rendered a judgment ruling for the first time on the competence of the Competition Council of the Grand Duchy of Luxembourg (hereinafter the (...)
The Danish Maritime and Commercial High Court confirms the Competition Authority’s decision stating that a German engine manufacturer abused its dominant position (Deutz / Diesel Motor Nordic)
Danish Maritime and Commercial High Court: Deutz and Diesel Motor Nordic infringed competition legislation by preventing the supply of spare parts for the IC3-trains*
On 11 January 2021, the Maritime and Commercial High Court has confirmed that Deutz abused its dominant position by refusing (...)
The Danish Maritime and Commercial High Court upholds the Competition Authority’s decision finding an abuse of dominance and an anti-competitive agreement between a German internal combustion engine manufacturer and its national distributor in the railway sector (Deutz / Diesel Motor Nordic)
The case centred around a consortium that was handling the renovation of the engines of the IC3 trains of the Danish State Railways. A member of the consortium, Fleco ApS (Fleco), was in several ways restricted from buying spare parts to be used in the renovation of the train engines.
The (...)
The Danish Maritime and Commercial High Court confirms a decision of the Competition Authority finding that a German internal combustion engine manufacturer had both abused its dominant position and entered into an anti-competitive agreement with its Danish dealer (Deutz / Diesel Motor Nordic)
On 11 January 2021, the Danish Maritime and Commercial High Court (“MCC”) confirmed a decision of the Danish Competition Council (“DCC”) finding that the German internal combustion engine manufacturer Deutz had both abused its dominant position and entered into an anti-competitive agreement (...)
The Croatian Administrative Court upholds the Competition Authority’s decision that fined a fruits and vegetable company for the imposition of unfair trading practices (NTL)
UTPS: Administrative Court upholds CCA decision sanctioning NTL 450,000 kuna for imposition of unfair trading practices*
The Administrative Court in Zagreb completely rejected the statement of claim of Narodni trgovački lanac d.o.o. (NTL) in the administrative dispute against the decision (...)
The Croatian Administrative Court upholds the Competition Authority’s decision fining watermelon re-seller for imposition of unfair trading practices (Fragaria)
UTPS: Administrative court upholds CCA decision sanctioning Fragaria 350,000 kuna for imposition of unfair trading practices*
On 16 December 2020 the Administrative Court in Zagreb completely rejected the statement of claim of the re-seller Fragaria d.o.o. in the administrative dispute (...)
The Indian Supreme Court upholds the National Company Law Appellate Tribunal’s decision declaring no hub-and-spoke cartel involving two ride-hailing platforms in the automobile services market for fixing cab fares through their apps (Uber / Ola)
Uber and Ola finally win antitrust case in India -Supreme Court upholds NCLAT decision -No Hub and Spoke cartel – (but importantly rejects NCLAT decision on lack of locus standi)*
The Supreme Court of India vide its judgment dated 15.12. 2020 has upheld the concurrent findings on merits of (...)
The EU Court of Justice states that the fee structure for music played at festivals adopted by a collecting society is not necessarily abusive (SABAM)
On 25 November 2020, the Court of Justice of the European Union (the CJEU) delivered a judgment in case C-372/19 holding that the fee structure for music played at festivals adopted by collecting societies such as SABAM is not necessarily abusive under Article 102 TFEU. The case had come (...)
The EU Court of Justice rules that the fee structure for music played at festivals adopted by a Belgian collecting society is not abusive (SABAM)
On 25 November 2020, the Court of Justice ((“ECJ”) delivered a judgment in Case C-327/19, ruling that the fee structure for music played at festivals adopted by the Belgian collecting society SABAM is not necessarily abusive under Article 102 TFEU.
The case came before the ECJ by way of a (...)
The Brussels Court of Appeal annuls the Competition Authority’s decision rejecting a football club’s request for interim measures (Virton / RBFA)
In a judgment delivered on 19 November 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) annulled the decision adopted on 29 June 2020 by the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian (...)
The Belgian Competition Authority rules that a national football association’s conditions to obtain a professional license are prima facie incompatible with competition law and orders interim measures (Virton / RBFA)
On 19 November 2020, the Belgian Competition Authority (“BCA”) ordered interim measures against the Royal Belgian Football Association (“RBFA”) following a request filed by the professional football club Royal Excelsior Virton (“RE Virton”). The BCA considered that the RBFA’s refusal to grant (...)
The EU General Court maintains the Commission’s decision finding that a Lithuanian railway company abused its dominant position in the national rail freight sector (Lietuvos geležinkelai)
On 18 November 2020, the General Court (“GC”) issued its judgment confirming the European Commission’s (“Commission”) decision to fine Lithuanian Railways for the abuse of its dominant position on the Lithuanian rail freight market. The GC rejected all of the appellant’s complaints, but (...)
The EU General Court upholds the Commission’s decision finding that the national railway company of Lithuania abused its dominant position in the national rail freight market (Lietuvos geležinkelai)
The General Court upholds the Commission’s decision finding that the national railway company of Lithuania abused its dominant position on the Lithuanian rail freight market*
Lietuvos geležinkeliai AB (‘LG’), the national railway company of Lithuania, both manages railway infrastructure and (...)
The EU General Court confirms the Commission’s decision finding that a national rail company abused its dominant position on the market (Lietuvos geležinkelai)
The Factors Affecting the Use of Essential Facilities Doctrine in Light of the Lithuanian Railway v Commission Decision: A Comparison with the Turkish Practice and Potential Implications
1) Introduction
On November 18, 2020, the General Court of the European Union (“General Court”) upheld (...)
The Hungarian Supreme Court upholds Competition Authority’s finding that a food retail company has abused its dominance (Auchan)
The GVH won the case against Auchan at the Curia of Hungary*
Budapest, 13 November 2020 - The Curia of Hungary upheld in its entirety the GVH’s decision to impose a record fine of more than one billion forints. Thus, it has now become final that Auchan has abused its significant market (...)
The Estonian District Court orders a State-owned energy company to pay €7M in damages to a shale oil company for abuse of its dominant position by imposing excessive prices on shale oil supply (Enefit Mines / VKG Oil)
Estonian incumbent state-owned energy mining company Enefit Kaevandused AS (“Enefit Mines”) was ordered to pay to VKG Oil AS (“VKG”) for the abuse of dominant position by imposing excessive prices on oil shale supply. The final award was made by Tartu District Court on 21 May 2021, following (...)
The Australian Competition Authority institutes proceedings in the Federal Court against printing company for unfair contract terms for small businesses (Fuji Xerox)
Fuji Xerox in court over alleged unfair contract terms*
The ACCC has instituted proceedings in the Federal Court against printing company Fuji Xerox Australia Pty Ltd and a related company (together, Fuji), alleging that in total nine types of Fuji’s standard form small business contracts (...)
The German Federal Court of Justice rules on the burden of proof for showing exhaustion of trademark right (Amazon / Coty)
On 15 October 2020, the German Federal Court of Justice (“FCJ”) issued a judgment on the burden of proof for showing the exhaustion of trademark rights in a case pitting Coty against Amazon.
After having made a test purchase from Amazon of two bottles of a perfume bearing the “JOOP!” (...)
The French Supreme Court confirms that the incumbent horse race betting operator abused its dominant position (PMU)
On 14 October 2020, the French Supreme Court (“Cour de Cassation”) confirmed the Court of Appeals’ finding that horserace-betting company Pari Mutuel Urbaine (“PMU”) abused its dominant position in the market for physical horserace betting by pooling bets with those in the online market. (...)
The Paris Court of Appeal confirms the Competition Authority’s decision ordering a search engine to negotiate with news agencies and press publishers (Google)
On 8 October 2020, the Paris Court of Appeal rejected Google’s challenge to the French Competition Authority’s ("FCA") decision compelling Google to negotiate "neighbouring rights" with news agencies and press publishers. "Neighbouring rights" include the right to receive payment when a (...)
The Brussels Court of Appeal partially annuls a decision imposing a record fine on a telecommunications company for a margin squeeze abuse of dominance (Proximus)
On 7 October 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) partially annulled the decision of 26 May 2009 (the 2009 Decision), for lack of admissible evidence, by which the Belgian Competition Authority (Belgische (...)
The Turkish Administrative Court upholds the fines imposed by the Competition Authority on two electricity sales companies for abuse of dominance (Rescs / Ayedas)
(1) Introduction
In 2018, in its Enerjisa decision, the Turkish Competition Board (“ Board ”) had imposed administrative fines amounting to a total of TRY 143 million on three retail electricity sales companies (namely AYESAŞ, BAŞKENT and TOROSLAR) (together, the “ RESCs ”) and one (...)
The US Court of Appeals for the Federal Circuit reverses a judgment that upheld “skinny labels” and allowed a generic medicine to launch on uses not covered by a patent (GlaxoSmithKline / Teva)
On October 2, 2020, the U.S. Court of Appeals for the Federal Circuit vacated a district court’s judgment in favor of defendant Teva in a case involving “skinny labels.” GlaxoSmithKline LLC v. Teva Pharm. USA, Inc., 976 F.3d 1347 (Fed. Cir. 2020). When a drug can be used to treat multiple (...)
The Albanian Administrative Court of First Instance in Tirana ascertains the abuse of the dominant position by the national football federation (Albanian Football Federation)
Republic of Albania Competition Authority*
The Competition Authority informs that: Today on 21.09.2020, the Administrative Court of First Instance in Tirana decided:
To uphold the Competition’s Commission Decision no. 693, dated 14.05.2020 "To ascertain the abuse of the dominant position (...)
The EU Court of Justice AG Saugmandsgaard Øe recommends the Bronner legal test to be limited to ’refusals to make available’ (Slovak Telekom) (Deutsche Telekom)
Advocate General (‘AG’) Saugmandsgaard Øe recommends the European Court of Justice (‘ECJ’) to (i) rule that the test included in the Bronner Judgment – including the indispensability requirement – should only be applied in specific circumstances (i.e., in case of ‘refusals to make available’), (...)
The EU Court of Justice AG Saugmandsgaard Øe advises dismissing the parties’ challenges to the Commission’s finding of abuse of dominance on the Slovak broadband services market (Slovak Telekom) (Deutsche Telekom)
On 9 September 2020, Advocate General (“AG”) Saugmandsgaard Øe issued his opinion in Deutsche Telekom v. European Commission (Case C-152/19) and Slovak Telekom v. European Commission (Case C-165/19) advising the Court of Justice (“ECJ”) to dismiss the parties’ challenges to the Commission’s (...)
The UK Supreme Court rules on a license dispute between a software and a telecommunications company and clarifies the English Courts’ approach to FRAND royalty cases (Unwired Planet / Huawei)
On 26 August 2020, the UK Supreme Court issued a judgment in a licence dispute involving Standard Essential Patents (“SEPs”) pitting Unwired Planet, a US based patent assertion entity, against Huawei, a Chinese telecommunications company that produces smartphones.
Unwired Planet brought an (...)
The US Court of Appeals for the Ninth Circuit rules that there is no antitrust violation in a multinational semiconductor company’s licensing of its standard-essential patents (Qualcomm)
Ninth Circuit Reverses FTC Win in FTC v. Qualcomm, Finding No Antitrust Violations from Qualcomm’s Licensing of its Standard-Essential Patents*
In a reversal that came as no surprise to many observers, on Tuesday, August 11, 2020, a unanimous panel of the U.S. Court of Appeals for the Ninth (...)
The US Court of Appeals for the Ninth Circuit strikes down a sweeping injunction against a semiconductor company and reins in an expansive interpretation of the Sherman Act (Qualcomm)
On August 11, 2020, the U.S. Court of Appeals for the Ninth Circuit decisively reversed the Federal Trade Commission’s (FTC or Commission) controversial district court win challenging Qualcomm’s licensing practices. In rejecting every aspect of the lower court’s decision, the Ninth Circuit (...)
The US Court of Appeals for the Ninth Circuit overturns a ruling finding that a semiconductor company’s licensing practice abused its dominant position (Qualcomm)
On 11 August 2020, a panel of the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”), in a unanimous opinion by Judge Callahan, reversed the U.S. Federal Trade Commission’s (“FTC’s”) win in the district court against Qualcomm Inc. (“Qualcomm”) and upheld Qualcomm’s licensing (...)
The US Court of Appeals for the Ninth Circuit reverses a ruling finding that a semiconductor company abused its dominant position regarding its standard-essential patents (Qualcomm)
On August 11, 2020, a Ninth Circuit panel reversed the District Court for the Northern District of California’s judgment in FTC v. Qualcomm, Inc. The panel held that Qualcomm’s conduct—(a) refusing to license its standards essential patents (SEPs) to rival chipset manufacturers; (b) refusing (...)
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 EU Court of Justice AG Pitruzzella offers guidance on the method for calculating royalties that may lead to a finding of abuse of a dominant position (SABAM)
On 16 July 2020, Advocate General (“AG”) Pitruzzella issued an opinion in Case C-327/19, advising the Court of Justice of the European Union (“ECJ”) on whether the method for calculating royalties used by SABAM, the Belgian collecting society, amounts to an abuse of a dominant position under (...)
The German Federal Court of Justice provisionally confirms an allegation against a social media company for abusing its dominant position (Facebook)
Federal Court of Justice provisionally confirms allegation of Facebook abusing dominant position*
Facebook uses terms of service that also allow for the processing and use of user data that are collected online outside the Facebook platform. The Bundeskartellamt prohibited Facebook from (...)
The German Federal Court of Justice preliminarily confirms that an online platform abused its dominant position on the national market of social networks (Facebook)
On 23 June 2020, the German Federal Court of Justice (“FCJ”), in summary proceedings, preliminarily confirmed the finding of the Federal Cartel Office (“FCO”) that Facebook had abused its dominant position. It overturned the decision of the Higher Regional Court of Düsseldorf that had (...)
The German Federal Court of Justice confirms abuse of dominance over data collection by an online platform without the user’s explicit consent (Facebook)
The Federal Court of Justice (FCJ) rejected Facebook’s application for suspensive effect in connection to its appeal to the Higher Regional Court of Düsseldorf against the decision of the Federal Cartel Office (FCO) prohibiting Facebook from collecting and processing Facebook users’ data (...)
The German Federal Court of Justice overturns the Dusseldorf Court of Appeals’ interim decision and finds an online social media platform to have abused its power in collecting data from different sources (Facebook)
On June 23, 2020, the Federal Court of Justice (“FCJ”) overturned the Düsseldorf Court of Appeals’ (“DCA”) interim decision and rejected Facebook Inc.’s (“Facebook”) request to suspend the enforceability of the Federal Cartel Office’s (“FCO”) prohibition decision. The FCJ disagreed with the (...)
The German Federal Court of Justice rejects an appeal against the prohibition of exclusivity clauses in online sales of event tickets (CTS Eventim)
In December 2017, the German Federal Cartel Office (“FCO”) prohibited ticketing services provider CTS Eventim from using exclusivity agreements with event organisers and ticket offices. CTS Eventim had to amend its contractual clauses and allow trading partners to sell at least 20% of their (...)
The Beijing Intellectual Property Court rules that a national audio-video copyright association did not abuse its dominant position (KTV / CAVCA)
Antitrust litigations concerning intellectual property rights increased in 2020. Among notable cases, the case of eight KTV v. China Audio Video Copyright Association (“CAVCA”) for its abuse of dominance attracted particular attention.
Background
In this case, the plaintiffs of eight KTV (...)
The Amsterdam Court of Appeal finds no abuse of dominance by one of the largest national real estate agencies in its ranking of online advertisements (VBO / NVM / Funda)
On 26 May 2020, the Amsterdam Court of Appeal (“Court”) delivered its judgment in a dispute between the real estate association VBO Makelaars (“VBO”) versus the Dutch Association of Real Estate Agents (“NVM”) over the online real estate platform of Funda Real Estate (“Funda”). The Court (...)
The Amsterdam Court of Appeal rules that there is no abuse of dominance by one of the largest national real estate agencies in the online housing market (VBO / NVM / Funda)
In its judgment, on the 26th May 2020, the Amsterdam Court of Appeal (‘the Court’) ruled that there is no abuse of Funda’s dominant position. The Court hereby dismissed the claim which had been filed by VBO Estate Agents in The Netherlands against Funda. This judgment ended a six-year-old (...)
The Amsterdam Court of Appeal dismisses a claim that a real estate agency’s self-preferencing strategy is abusive because the competitive position remained unaffected (VBO / NVM / Funda)
On 26 May 2020, the Amsterdam Court of Appeal (the “Court”) handed down its judgment in the dispute between the real estate agent association VBO (“VBO”) and Funda Real Estate (“Funda”) and the Dutch Association of Real Estate Agents (“NVM”). The Court upheld the judgment of the District Court (...)
The Turkish Regional Administrative Court annuls the Competition Authority’s decision that concluded a violation but no fine because the same action and subject had already previously been fined (Mey İçki)
The Regional Administrative Court Found the Turkish Competition Authority’s Decision concerning Mey İçki Unlawful: Abuse of the Dominance Should Be Evaluated Separately in terms of Each Product Market!*
Introduction
The Ankara Regional Administrative Court’s 8th Administrative Chamber (...)
The German Federal Court of Justice clarifies obligations of parties in SEP licensing negotiations on FRAND terms (Sisvel / Haier)
In its judgment of 5 May 2020, the Federal Court of Justice (“FCJ”) overturned the appeal ruling of the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”) and found that Haier’s mobile telephones and tablets infringed Sisvel’s standard-essential patent (“SEP”) and that Sisvel had not (...)
The Italian Court of Cassation rules on the limitation period of antitrust damages claims in two judgments in the telecommunications sector (Uno Communications / Telecom Italia) (Uno Communications / Vodafone Italia)
1.- Introduction
By judgements issued on the 27th of February, 2020, No. 5381, and on the 3rd of April 2020, No. 7677, the Italian Court of Cassation (Corte di Cassazione) ruled that the antitrust damages claims brought by Uno Communications S.p.A. against Vodafone Italia S.p.A. and Telecom (...)
The Nanjing Intermediate People’s Court rules in favour of an undertaking and its subsidiary in an abuse of dominance case against its suppliers of active pharmaceutical ingredient and awards the plaintif damages as compensation for anti-competitive conduct totally $10 million (Yangtze River)
On 18 March 2020 the Nanjing Intermediate People’s Court (court) ruled in favor of Yangtze River Pharmaceutical Group and its subsidiary (Yangtze Pharma) in an abuse of dominance case against its suppliers of active pharmaceutical ingredients (API). The court awarded the plaintiffs a record (...)
The Dutch Trade and Industry Appeals Tribunal annuls the Competition Authority decision requiring telecommunications providers to open networks (KPN / VodafoneZiggo / T-Mobile / Tele2)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“Appeals Tribunal”) reversed a decision of the Authority for Consumers & Markets (“ACM”) which required telecommunications provider KPN and cable provider VodafoneZiggo to open their fixed networks to other providers. On 27 (...)
The Dutch Trade and Industry Appeals Tribunal reverses a decision of the Competition Authority requiring telecom providers to open up their fixed networks in the Netherlands to other providers (KPN / VodafoneZiggo / T-Mobile / Tele2)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (“CBb”) reversed the 2018 decision of the Authority for Consumers and Markets (“ACM”) requiring telecom providers KPN and VodafoneZiggo to open up their fixed networks in the Netherlands to other providers.
In September 2018, (...)
The Dutch Trade and Industry Appeals Tribunal quashes the Competition Authority’s finding of a joint dominance in the retail broadband market (KPN / VodafoneZiggo / T-Mobile / Tele2)
On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (CBb) published its long-awaited verdict on the appeal against the Netherlands Authority for Consumers and Markets (ACM) 2018 finding of joint dominance in the Dutch retail broadband market. Why did the CBb rule in favour of the (...)
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 Indian National Company Law Appellate Tribunal upholds the Competition Authority’s order against an American electronic payment supplier for abusing its dominant position in the markets for POS terminals and electronic ticketing machines (Verifone)
NCLAT upholds CCI’s orders against Verifone for abuse of dominance in the market for Point of Sale (“POS”) terminals and Electronic Ticketing Machines (“ETM”) in India.*
Key points
Verifone abused its position of dominance in the market for POS and ETM by imposing restrictive conditions (...)
The Austrian Supreme Court confirms the lower court’s decision finding that the national public broadcasting company did not abuse its dominant position by increasing its fee for decryption service (ORF)
1. Introduction
On 12 March 2020 the Austrian Supreme Court in competition matters (Oberster Gerichtshof als Kartellobergericht; hereinafter: “Supreme Court”) confirmed a decision by the Higher Regional Court of Vienna in competition matters (Oberlandesgericht Wien als Kartellgericht; (...)
The Indian National Company Law Appellate Tribunal upholds the Competition Authority’s order dismissing allegations of abuse of dominance in the market for industrial bearings (Asmi / SKF)
KEY POINTS
Given that the conduct related to a period prior to May 20, 2009, the CCI had no jurisdiction to investigation. Further, during the concerned period, none of the players in the relevant market enjoyed a position of strength for a long duration. Even thereafter, in 2015-16, (...)
The UK Competition Authority welcomes the England and Wales Court of Appeal’s judgment, calling it an important step forward in clarifying the legal test for excessive and unfair pricing (Pfizer / Flynn)
CMA welcomes Court of Appeal judgment in Phenytoin case*
The CMA welcomes today’s Court of Appeal judgment, calling it an important step forward in clarifying the legal test for excessive and unfair pricing.
The Competition and Markets Authority (CMA) will now carefully review the elements (...)
The UK Court of Appeal upholds the Competition Appeal Tribunal’s quashing of the Competition Authority’s decision against pharmaceutical undertakings who had allegedly abused their dominant position by pricing their epilepsy drug unfairly (Pfizer / Flynn)
On 10 March 2020 the Court of Appeal upheld the Competition Appeal Tribunal’s (CAT) quashing of the Competition and Markets Authority’s (CMA) decision that Pfizer and Flynn Pharma (Flynn) had abused their dominant positions in the market by pricing their epilepsy drug unfairly. Among other (...)
The UK Court of Appeal provides guidance regarding the legal test to determine whether pricing is excessive and unfair in the pharmaceutical market (Pfizer / Flynn)
The UK Court of Appeal Clarifies the Legal Test for Excessive Pricing*
Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of (...)
The UK Court of Appeal considers the test for excessive pricing after an undertaking had charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Introduction
In December 2016, the UK’s Competition and Markets Authority (CMA) found that Pfizer and Flynn had charged unfairly high prices for phenytoin sodium capsules, an important anti-epilepsy drug, in breach of competition law. The CMA imposed fines totalling £90 million. Pfizer and (...)
The UK Court of Appeal dismisses the Competition Authority’s appeal against a ruling quashing the fines imposed on two pharmaceutical companies for charging excessive and unfair prices for an anti-epilepsy drug (Pfizer / Flynn)
On 10 March 2020, the UK’s Court of Appeal dismissed the Competition and Market Authority’s (“CMA”) appeal against a 2018 ruling by the Competition Appeals Tribunal (“CAT”) that quashed the CMA’s 2016 fine imposed on Pfizer and Flynn for charging excessive and unfair prices for phenytoin (...)
The UK Court of Appeal provides guidance on the legal test for excessive and unfair pricing after finding that an undertaking is charged unfairly high prices for phenytoin sodium capsules (Pfizer / Flynn)
Under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), an undertaking may abuse its dominant position by “directly or indirectly imposing unfair purchase or selling prices”. The UK Court of Appeal recently provided guidance regarding the legal test to determine (...)
The UK Court of Appeal seeks to reinstate record fines imposed on pharmaceutical companies for abuse of dominant position through excessive and unfair pricing of an anti-epilepsy drug (Pfizer / Flynn)
On 10 March 2020 the UK Court of Appeal handed down its hotly anticipated judgment in Flynn Pharma Limited & Anr vs Competition and Markets Authority. The UK Competition and Markets Authority (CMA) was seeking to reinstate record fines totalling £89.4m imposed on pharmaceutical companies (...)
The UK Court of Appeal imposes agency discretion in the methodology to establish the unfairness of prices, thereby increasing the burden of proof on companies to avoid a finding of excessive pricing (Pfizer / Flynn)
The UK Court of Appeal Overturns the CAT & Imposes Agency Discretion on Excessive Price Benchmark*
On March 10, 2020, the England and Wales Court of Appeal (CoA) handed down a significant ruling that reintroduces agency discretion in the methodology used to establish the unfairness of (...)
The Indian Appellate Tribunal overrules the Competition Authority’s order in an abuse of dominance case in the e-commerce sector (All India Online Vendors Association / Flipkart India)
NCLAT directs investigation into alleged abuse of dominant position by Flipkart -Quashes earlier CCI order closing the case*
By a recent judgment dated 04.03.2020, the Hon’ble National Company Appellate Tribunal (“NCLAT”) has set aside the order dated 06.11.2018 passed by the Competition (...)
The Danish Maritime and Commercial Court finds a medicine distributor guilty of abusing its dominant position (CD Pharma)
On 3 March 2020, the Danish Maritime and Commercial Court found a medicine distributor, CD Pharma AB, guilty of having abused its dominant position back in 2014. Due to its dominant position, the undertaking in question had a special responsibility not to harm competition – a responsibility (...)
The Swedish Patent and Market Court of Appeal overturns Competition Authority’s decision and finds that the termination of a contract with a competitor does not constitute an abuse of a dominant position (Svenska Förpacknings och Tidningsinsamlingen)
The termination of a contract with a competitor did not constitute an abuse of a dominant position*
Svenska Förpacknings- och Tidningsinsamlingen, FTI, does not have to provide its competitor TMResponsibility, TMR, access to recycling stations. The decision of the Patent and Market Court of (...)
The US Court of Appeals for the Seventh Circuit finds that the District Court should not have dismissed a monopolization and tying arrangement suit in the telecoms sector (Comcast / Viamedia)
On February 24th, a Seventh Circuit Court of Appeals panel ruled unanimously that a District Court should not have dismissed a monopolization and tying arrangement suit brought against Comcast by Viamedia, a supplier of advertising services to cable companies and other television content (...)
The EU General Court hears an appeal following an abuse of dominance decision involving online comparison shopping services (Google Shopping)
Introduction
From 12-14 February 2020, the European Union’s General Court (the “General Court”) heard Google’s appeal of the European Commission’s 27 June 2017 abuse of dominance decision pursuant to Article 102 TFEU (the “Decision”) involving on-line comparison shopping services (“CSSs”). A (...)
The EU General Court hears an appeal against an abuse of dominance decision in online comparison shopping services (Google Shopping)
Background
On 27 June 2017, the European Commission imposed a record fine of 2.42 billion euros to Google for abuse of dominant position under Article 102 TFEU consisting in self-favouring its own Comparison Shopping Service (“CSS”) by displaying it more prominently and under enriched (...)
The EU Court of Justice clarifies the Commission’s investigative powers regarding dawn raids (České dráhy)
Recent judgements by Court of Justice of the EU provide important clarifications regarding the European Commission’s powers and obligations when conducting dawn raids. On 30 January 2020, the Court of Justice handed down a judgment dismissing two appeals by České dráhy, a.s. against General (...)
The EU Court of Justice clarifies for the first time when patent settlement agreements restricting a generic pharmaceutical company’s ability to enter the market infringes the EU antitrust rules (Generics - UK / GlaxoSmithKline / Actavis / Xellia Pharmaceuticals / Merck / Alpharma)
In a major judgment handed down on 30 January 2020 in Generics (UK) and Others, the EU Court of Justice (the Court) – the EU’s highest court – clarified for the first time the analytical framework for assessing when patent settlement agreements that restrict a generic pharmaceutical company’s (...)
The EU Court of Justice dismisses the appeals against the Commission’s decisions in the case of alleged predatory practices by the Czech railway incumbent (České dráhy)
On 30 January 2020, the European Court of Justice dismissed the appeals in joined cases C-538/18 P and C-539/18 P brought by Czech national rail carrier České dráhy, which sought to set aside the judgments of the General Court in cases T‑325/16 and T‑621/16 upholding the European Commission’s (...)
The Turkish Administrative Court annuls a Competition Authority’s decision assessing excessive pricing in the online market and provides guidance on the standard of proof to be followed by the Authority (Sahibinden.com)
The standard of proof plays a significant role during the process of the investigations performed within the framework of the competition law. However, no explicit provision regarding the standard of proof which shall be taken as basis in the preliminary and full-fledged investigations carried (...)
The Turkish Administrative Court annuls the fines imposed by the Competition Authority due to failure to establish the required standards for competition law infringement in excessive pricing cases (Sahibinden.com)
This case note analyses Ankara 6th Administrative Court’s (the “Administrative Court”) annulment judgment (18.12.2019; 2019/946 E., 2019/2625 K.) through which the Administrative Court reviewed the Turkish Competition Board’s (the “Board”) decision dated 01.10.2018 and numbered 18-36/584-285, (...)
The German Federal Court provides further guidance on abusive ad blocking and holds that it may constitute abuse of dominance (Ad Blocker IIIa)
In its judgement of 10 December 2019, the German Federal Court of Justice (BGH) found that ad blocking can constitute an abuse of a dominant position by the ad blocker provider. The decision marks another milestone in the ad blocker saga. Following a series of lower court judgments and a BGH (...)
The Italian Supreme Court rules that an airline company abused its dominant position by refusing to grant online travel agencies the right to intermediate its tickets by accessing its databases and procedures for flight reservations (Ryanair)
On 12 November, the Italian Supreme Court brought to an end a multi-jurisdictional dispute which began in 2008, related to the Ryanair’s refusal to grant online travel agencies ("OTAs") the right to intermediate its tickets by accessing its databases and procedures for flight reservations. (...)
The Italian Supreme Court rules on the abuse of a dominant market position of a company in the aviation sector and reinstates the criteria needed to determine the relevant market (Ryanair)
The facts of this case date back to 2007, when Ryanair decided to exclude all intermediaries from relations with its customers and directed all consumer internet traffic to its website, where other services were also offered by operators and commercial partners of the company, which therefore (...)
The UK Competition Appeal Tribunal upholds the Ofcom decision on abuse of dominance and discriminatory pricing strategy in the mail delivery service market (Royal Mail / Whistl)
On 12 November 2019, the Competition Appeal Tribunal ("Tribunal") upheld Ofcom’s decision against Royal Mail Plc (Royal Mail), finding Royal Mail’s pricing strategy in relation to bulk mail delivery services to be discriminatory and an abuse of dominance.
Royal Mail first announced the (...)
The UK Competition Appeal Tribunal upholds a fine totalling £50M against the national postal service for abusing its dominant position by announcing price changes (Royal Mail / Whistl)
On 12 November 2019, the UK Competition Appeal Tribunal ("CAT") upheld Ofcom’s decision to fine Royal Mail £50 million for abusing a dominant position by announcing price changes. Royal Mail has announced that it is seeking permission to appeal to the Court of Appeal.
WHAT YOU NEED TO KNOW - (...)
The UK Competition Appeal Tribunal upholds Ofcom’s fine against the national postal service for price discrimination (Royal Mail / Whistl)
The UK’s Competition Appeal Tribunal upholds the Ofcom’s record £50 million fine against Royal Mail for price discrimination against Whistl, a competitor in the market for the processing of bulk mail.On 12 November 2019, the UK’s Competition Appeal Tribunal (CAT) upheld the UK communication (...)
The German Federal Court of Justice allows an appeal in an abuse of dominance claim between a transmitter operator and a radio station Berufungszuständigkeit II
Brief summary of facts
The defendant operates a radio station in Potsdam and uses the terrestrial transmitters operated by claimant for the transmission. In August 2015, the Federal Network Agency approved the fees of claimant in appeal for the period from 1 January 2016 onwards. For the (...)
The Italian Regional Administrative Court of Lazio upholds the Competition Authority’s decision which fined a company for abusing its dominant position in the electricity market (Enel)
On 17 October 2019, the Regional Administrative Court of Lazio (“TAR”) issued its judgment on the appeal lodged by Enel Group against the decision of the Italian Competition Authority (the “ICA”) issued on 20 December 2018. The ICA had fined the company over EUR 93 million for abusing its (...)
The French Commercial Court of Paris rules that a private enforcement action cannot proceed because the limitation period has expired and that argument that the period was interrupted is flawed (Sanofi / Sanofi Aventis / CNAMTS)
Brief summary of facts
On 14 May 2013, following a complaint by TEVA, a generics manufacturer, the FCA fined Sanofi EUR 40.6 million for abuse of dominance (disparaging the generic versions of Plavix®). Decision was confirmed by the Paris Court of Appeal in December 2014 and the French (...)
The Italian Regional Administrative Court of Lazio rejects the appeal against abuse of dominance decision in the markets for the management of copyrights (SIAE)
On 26 September 2019, the Regional Administrative Court of Lazio (“TAR”) rejected the appeal lodged by the Italian Authors’ and Publishers’ Association (the “SIAE”) against the decision of the Italian Competition Authority (the “ICA”) taken on 25 September 2018. In this decision, the Authority (...)
The US Court of Appeals for the Second Circuit overturns a $15M antitrust jury verdict in favor of an airline company against a travel-planning giant (US Airways / Sabre)
In the first two-sided market case to be decided by a court of appeals since the Supreme Court issued its American Express ruling (“Amex”) in June 2018, a Second Circuit Panel in September nixed a $15 million antitrust jury verdict in favor of US Airways against travel-planning giant Sabre (...)
The Düsseldorf Higher Regional Court grants a temporary injunction suspending the German Competition Authority’s landmark abuse of dominance decision against social network company pending the final determination of appeal (Facebook)
On 26 August 2019, the Düsseldorf Higher Regional Court (DHRC) granted a temporary injunction suspending the German Federal Cartel Office’s (FCO’s) landmark abuse of dominance decision against Facebook, pending final determination of the company’s appeal. In an important judgment with (...)
The US Court of Appeals for the Third Circuit affirms a bench trial’s decision in a rare price discrimination suit (Spartan Concrete Products / Argos USVI)
Robinson-Patman Act decisions are rare. This often is because legitimate complaints against a supplier providing favorable pricing to a complaining customer’s competitors either are settled out of court or prior to a decision on the merits. So it is of interest when a price discrimination suit (...)
The Swedish Court of Appeal confirms the dismissal of the Competition Authority’s action against a stock exchange company for alleged abuse of dominance (Nasdaq)
On 28 June 2019, the Swedish Patent and Market Court of Appeal (the “Appeal Court”) upheld a ruling of the Swedish Patent and Market Court that rejected an action brought by the Swedish Competition Authority (Konkurrensverket or “KKV”) against Nasdaq Stockholm Aktiebolag and several affiliated (...)
The Rotterdam District Court annuls a €41M fine imposed by the Dutch Competition Authority on a railway operator for allegedly abusing its dominant position (Nederlandse Spoorwegen)
ABUSE OF DOMINANCE FINE OF € 41 MILLION FOR DUTCH RAILWAY OPERATOR ANNULED*
Introduction
The Authority for Consumers and Markets (“ACM“, the Dutch competition authority) was in 2017 – after years of silence – finally able to fine an undertaking for abuse of dominance. A heavy fine of (...)
The Rotterdam District Court annuls a €41M fine imposed on a rail transport incumbent for allegedly abusing its dominant position (Nederlandse Spoorwegen)
On 27 June 2019 the District Court of Rotterdam annulled the decision of the Authority for Consumers and Markets ("ACM", the Dutch competition authority) to impose a fine of € 41 million on Dutch rail transport incumbent N.V. Nederlandse Spoorwegen ("NS") for abusing its dominant position (...)
The Czech Supreme Court confirms that invoking trademark rights to prevent parallel imports can amount to an abuse of dominance (Fiskars / Mountfield)
On 29 May 2019, the Supreme Court (SC) partially granted an extraordinary appealed lodged by Mountfield against the previous judgment of the High Court in Prague of 23 May 2017 (Ref.No. 3 Cmo 132/2016) in a dispute with Fiskars concerning an alleged violation of Firskars’ rights to trademarks (...)
The US District Court for the Northern District of California finds that a semiconductor company’s "no license, no chips" program violates antitrust laws (Qualcomm)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On May 21, 2019, following a full trial on the merits, Judge Koh of the Northern District of California issued a 233-page opinion in a closely watched case (...)
The US District Court for the Northern District of California rules that a semiconductor company’s "no license, no chips" program breaches the Sherman Act (Qualcomm)
On May 21, 2019, the United States District Court for the Northern District of California found that Qualcomm violated the Federal Trade Commission (FTC) Act, in an antitrust decision significant to licensing standard-essential patents (SEPs) under fair, reasonable and non-discriminatory (...)
The Brussels Court of Appeal asks the EU Commission to provide advice and information regarding the tariffs for concerts and music festivals of a copyright collecting society (SABAM)
On 10 May 2019, by interim judgment, the Brussels Court of Appeal asked the European Commission to provide advice and information regarding the tariffs for concerts and music festivals of SABAM – the Belgian copyright collecting society – in light of the prohibition to abuse a dominant (...)
The Belgian Markets Court rejects an appeal lodged by an undertaking against the decision to reject its request for interim measures and explains limits of its jurisdiction (The Great Circle)
On 8 May 2019, the Markets Court of the Brussels Court of Appeal rejected as inadmissible the appeal lodged by The Great Circle against the decision of the Belgian Competition Authority (“BCA”) to reject its request for interim measures against the Royal Meteorological Institute of Belgium (...)
The Hungarian Supreme Court annuls the Competition Authority’s decision which fined a company for having applied a discount scheme leading to dual pricing on the contact lenses market (Alcon)
The Hungarian Supreme Court ("Kúria") annulled on 10 April 2019 a decision of the Hungarian Competition Authority ("GVH") which had imposed a € 321,000 fine on Alcon Hungária Kft. and Alcon Services AG Hungarian branch (jointly, the "Alcon Companies") for having applied a discount scheme (...)
The EU Court of Justice determines that the Portuguese limitation period for competition damages lawsuits undermines the ability of claimants to enforce their claims and thus conflict with the principle of effectiveness (Cogeco Communications / Sport TV Portugal / Controlinveste-SGPS / NOS-SGPS)
Brief summary of facts
In June 2013, the Portuguese Competition Authority (“PCA”) found that Sport TV Portugal had abused of its dominant position in the market of premium sports TV channels. This behaviour infringed national law and Article 102 TFEU. Consequently, the PCA imposed a fine of (...)
The French Court of Appeal for Paris rules that a private enforcement claim is not time barred but dismisses it anyway for failure to evidence a causal link (EDF /Arkeos / Cap Eco Energie / APEM Energie / Sol’air Confort / Gavriane / Cap Sud)
Brief summary of facts
On 8 April 2009, the FCA issued a decision imposing interim measures to EDF relating to potential abusive practices in the photovoltaic solar power sector (favouring its own subsidiary in an emerging market).
On 17 December 2013, it fined EDF for abuse of dominance. (...)
The Turkish Competition Authority fines a company for resale price maintenance after the Council of State annulled its first decision finding no infringement regarding prepaid card prices (Turkcell II)
The Turkish Competition Board published its reasoned decision on an additional investigation on whether Turkcell İletişim Hizmetleri A.Ş. has violated the Law No. 4054 on the Protection of Competition through resale price maintenance and exclusivity practices (19-03/23-10; 10.01.2019). The (...)
The Spanish Supreme Court confirms the annulment of a €120M fine imposed by the Competition Authority against three mobile operators for abuse of dominance in wholesale markets for termination of SMS and MMS (Telefónica / Vodafone / Orange)
In three judgments delivered in December 2018 and January 2019, the Spanish Supreme Court confirmed the annulment of fines amounting to a total of €120 million imposed on the three main telecoms operators in Spain (i.e., Telefónica, Vodafone and Orange) for abuse of dominance in the wholesale (...)
The US District Court for the Northern District of California denies a motion for a summary judgment that a company’s standard essential patent licensing practices breached its FRAND obligations (ASUS / InterDigital)
This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
In a decision published in redacted form, Judge Beth Labson Freeman of the Northern District of California denied ASUSTek Computer Inc.’s and ASUS Computer (...)
The EU General Court slightly reduces the fine in a case of abuse of dominance in the telecom sector to account for the Commission’s failure to establish exclusionary effects over a limited period (Slovak Telekom)
On 13 December 2018, the General Court (the “GC”) issued a judgment upholding in large part an October 2014 decision of the European Commission (the “Commission”) against Slovak Telekom, in which it found that Slovak Telekom had abused its dominant position by engaging in a constructive (...)
The Danish Competition Appeals Tribunal upholds the decision fining a pharmaceutical distributor for excessive pricing (CD Pharma)
On 29 November 2018, the Danish Competition Appeals Tribunal upheld a 31 January 2018 decision of the Danish Competition Authority (“DCA”) finding that CD Pharma abused its dominant position on the Danish market by charging excessive prices for the sale of oxytocin, a hormone that acts as a (...)
The UK Court of Appeal upholds a decision qualifying an essential patent offer to be FRAND (Unwired Planet / Huawei)
UK COURT OF APPEAL UPHOLDS FRAND INJUNCTION*
Last week, the UK Court of Appeal upheld the findings of the High Court in an important case regarding standard essential patents (SEPs). Of particular significance, the Court of Appeal upheld the finding that the defendant, an implementer of (...)
The Indian National Company Law Appellate Tribunal reverses the Competition Authority’s decision which penalized a company for imposing anti-competitive vertical restraints in the manufacturing vehicle sector (Hyundai)
NCLAT quashes CCI order punishing Hyundai for Resale Price Maintenance and Tying-in*
The National Company Appellate Tribunal (“NCLAT/ Tribunal ”) by way of an order dated August 19, 2018 , has set aside the CCI Order dated June 14, 2017 against Hyundai Motors India Ltd. (“Hyundai”) which (...)
The French Court of Appeal for Paris determines that a betting company pooling online and offline bets together is anticompetitive and harmed a rival that acted solely online (Betclic / Pari Mutuel Urbain)
Brief summary of facts
PMU, active in the horse and sports betting services as well as poker game services, holds a monopolistic position in France in the organisation of horse betting services in its brick-and-mortar network. PMU also offers online horse and sports betting services, as well (...)
The Slovenian Administrative Court confirms a substantial part of a decision in a case related to abuse of dominance (Telekom Slovenije)
INTRODUCTION
On 9 January 2018, the Administrative Court of the Republic of Slovenia (hereinafter referred to as the Court) ruled in case I U 423/2015-48, brought by Telekom Slovenije against the Slovenian Competition Protection Agency’s (hereinafter referred to as SCPA) decision no. (...)
The US Court of Appeals for the Third Circuit finds that a medical device company conspired to deny insurance coverage for telemetry monitors (LifeWatch Services / Highmark)
In LifeWatch Services Inc. v. Highmark Inc., the Third Circuit determined that a medical device company had plausibly alleged a conspiracy among Blue Cross Blue Shield health insurance companies to deny their insured coverage for telemetry monitors. The decision reversed a district court (...)
The Canadian Supreme Court dismisses an appeal and upholds the Court of Appeal’s order requiring a professional association to stop restricting its members’ use of real estate data (Toronto Real Estate Board)
Court order upheld requiring TREB to stop restricting its members’ use of real estate data*
The Competition Bureau today welcomes the Supreme Court of Canada’s (SCC) dismissal of the Toronto Real Estate Board’s (TREB) application seeking leave to appeal a December 2017 decision from the (...)
The Austrian Supreme Court confirms that charging different prices for tickets booked via a global distribution system depending on the location of the customer/travel is abusive (Lufthansa)
Introduction
On 17 July 2018 the Austrian Supreme Court in competition matters (Oberster Gerichtshof als Kartellobergericht; hereinafter: “Supreme Court”) confirmed a cease and desist order prohibiting Lufthansa from abusing its dominant position by charging different ticket prices based on (...)
The Ukrainian Supreme Court affirms the Appeal Court’s decision and upholds the right of a party to claim for damages arising from a competition law violation in the market for cargo transportation (Nibulon / Ukrzaliznytsya)
Brief summary of facts
In 2013, the AMC rendered a decision (upon relevant complaint of Nibulon, a Ukrainian agricultural company specializing in production and export of grains wheat, barley, corn), according to which Ukrzaliznytsya was fined for abuse of dominance in the market of cargo (...)
The US Supreme Court finds that there was no abuse of dominance in a dominant firm’s requirements against competitors because the market is a two-sided platform (American Express)
Brief summary of facts
After merchant plaintiffs brought a private enforcement action against American Express in 2008, [1] the United States and several individual states similarly brought suit in 2010, alleging that American Express’s use of anti-steering provisions in its contracts with (...)
The French Court of Appeal for Paris awards €52.95M in damages to a phone operator from a rival because of an abusive margin squeeze (SFR / Orange)
Brief summary of facts
Orange had marketed an offer whereby owners of second homes could suspend their line at a low cost when their second home was unoccupied. SFR wanted to develop a competing offer but was not able to because of the monthly fees paid to the incumbent operator.
Brief (...)
The UK Competition Appeal Tribunal partially sets aside the Competition Authority’s decision that fined two undertakings nearly £90 million for charging unfairly high and excessive prices for anti-epilepsy drugs (Pfizer / Flynn)
On 7 June 2018, the UK’s Competition Appeal Tribunal (CAT) partially set aside the Competition and Market Authority’s (CMA’s) decision fining Pfizer and Flynn nearly £90 million for charging unfairly high, or excessive, prices for phenytoin sodium capsules (an anti-epilepsy drug) in breach of (...)
The UK Competition Appeal Tribunal announces its provisional judgment in an appeal against the Competition Authority’s infringement decision in an excessive price case (Pfizer / Flynn)
I. Introduction
In the last couple of years, there has been a trend for antitrust watchdogs around the world to investigate excessive pricing, especially in the pharmaceutical sector. Last year, the European Commission opened its first investigation into excessive pricing in the (...)
The UK Competition Appeal Tribunal finds an incorrect application of the legal test for dominance and quashes the Competition Authority’s record fines imposed on two pharmaceutical companies for charging excessive prices for an anti-epilepsy drug (Pfizer / Flynn)
EXCESSIVE PRICE? COMPARED TO WHAT?*
On 7 June 2017, the Competition Appeal Tribunal (“CAT”) set aside parts of the Competition & Market Authority’s (“CMA”) decision in relation to the CMA’s finding that Pfizer and Flynn charged excessive and unfair prices for phenytoin sodium capsules (...)
The UK Competition Appeal Tribunal partly annuls the Competition Authority’s decision that pharmaceutical companies abused their dominant position by setting excessive and unfair prices for an epilepsy drug (Pfizer / Flynn)
This article has been nominated for the 2019 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards.
On 7 June 2018, the Competition Appeal Tribunal (CAT) set aside in part the 2016 decision of the Competition and Markets Authority (CMA) that Pfizer and Flynn (...)
The Higher Commercial Court of Ukraine confirms a fine on a company for exploitative practices in certain national airports (Lukoil)
Headnote:
In December 2014, Ukraine International Airlines PJSC (UIA) submitted a complaint against Lukoil Aviation Ukraine LLC (Lukoil) to the Antimonopoly Committee of Ukraine (AMC). Having reviewed the complaint and conducted relevant investigation, the AMC imposed fine on Lukoil in the (...)
The UK High Court affirms its jurisdiction to hear claims relating to losses suffered by a UK company over an alleged abuse of a dominant position (Apple / Qualcomm)
Brief summary of judgment
Summary judgment and jurisdiction ruling: May 2018
The High Court held that the claim against the First Defendant had no real prospect of success. Qualcomm (UK) Limited was not the owner of the relevant patents. Therefore, it had not taken on any relevant (...)
The Ukrainian Supreme Court affirms the fine issued by the Competition Authority to an electricity supplier for abusing monopoly powers in the regional market for electricity transmission (Chernihivoblenergo)
Brief summary of facts
In 2015, LLC "Torhova enerhetychna kompaniya "Elkom" (Elkom), a business entity active in the electricity market, particularly as a supplier of the electricity, filed with the Administrative Chamber of Chernihiv region Department of the Antimonopoly Committee of (...)
The EU Court of Justice confirms that price discrimination is not itself an abuse of dominance in breach of competition law unless the discriminatory conduct is capable of producing a distortion of competition for the trading party (MEO / Serviços de Comunicações e Multimédia)
On 19 April 2018, the EU’s Court of Justice delivered its judgment in the MEO case, the latest in a recent line of rulings endorsing an effects-based analysis for abuse of dominance cases. EU competition law requires dominant companies not to discriminate between different customers or (...)
The Spanish Supreme Court orders restarting the investigation of a complaint about abuse of dominant position (Oracle)
On 26 February 2013, Hewlett Packard and Hewlett Packard Española, S.L. (jointly, HP) filed a complaint against Oracle Corporation and Oracle Ibérica, S.R.L. (jointly, Oracle) before the NMCC denouncing restrictive practices of competition in the field of relational database management (...)
The US Court of Appeals for the Third Circuit finds that the entry of ride-sharing firms into the local taxi market increased rather than decreased competition (Philadelphia Taxi Association / Uber)
Third Circuit Rules in Uber’s Favor over Philadelphia Taxi Association*
In a recent decision, the Third Circuit upheld a November 2016 district court decision to dismiss a complaint by the Philadelphia Taxi Association and 80 taxi companies, finding that there was no violation of antitrust (...)
The Amsterdam District Court issues a verdict in a long-running abuse of dominance case involving the largest national property website (Funda)
In March 2018 the Court of Amsterdam issued a verdict in a long-running abuse of dominance case involving funda, the largest property website in the Netherlands. The Court found funda to be dominant, but did not consider the company’s discriminatory listing of rival estate agents to be (...)
The Italian Court of Milan grants a follow-on damages claim filed by three airlines against an airport’s operator for abuse of dominance (Brussels Airlines / American Airlines / Aegean Airlines / SEA)
Brief summary of facts
In case No. A377 - SEA-Tariffe aeroportuali, decided in November 2008, the Italian Competition Authority (ICA) fined SEA, the company operating the two airports of the city of Milan (namely, Linate and Malpensa), for an abuse of dominance consisting in the application (...)
The Polish Supreme Court examines a case of non-compliance with a decision of the Competition Authority finding an abuse of dominant position (PKP Cargo)
In the judgement of 7 March 2018 (III SK 6/17), the Polish Supreme Court (“SC”) examined the case of non-compliance with the decision of the President of the Office of Competition and Consumer Protection (“NCA”) on the abuse of a dominant position by PKP Cargo, Poland’s largest railway freight (...)
The Moldovan Supreme Court of Justice quashes the infringement decision of the Competition Authority concerning refusal to deal in the airport services market (Avia Invest)
On 21 February 2018, the Supreme Court of Justice (SCJ) of the Republic of Moldova has quashed the decision issued by the Competition Council (CC) in a case concerning the alleged refusal to deal on the market for lease of commercial premises at the Chisinau International Airport (KIV).
SRL (...)
The Latvian Supreme Court overturns a decision annulling the Competition Authority’s decision to fine an author associate in a royalty payment case (AKKA / LAA)
Dispute between AKKA/LAA and the Competition Council on the penalties imposed on the association is referred for re-examination*
On 6 February, the Department of Administrative Cases of the Supreme Court annulled the judgment of the Administrative Regional Court in the case of dispute (...)
The Spanish Supreme Court rejects the allegations of abuse of dominance by a postal incumbent for lack of evidence (Correos)
In 2014, UNIPOST, S.A. (Unipost) filed a complaint before the NMCC against Sociedad Estatal de Correos y Telegrafos, S.A., (Correos) denouncing that Correos was able to offer discounts to large customers, well above the discounts offered by Unipost and other competitors for similar services, (...)
The Cairo Economic Court upholds the recommendation of the Egyptian Competition Authority and fines a TV broadcasting company for abusive bundling of international football events (Nasser Al-Khulaifi / beIN Media)
The Cairo Economic Court upholds the recommendation of the Egyptian Competition Agency and fines a TV broadcasting company for abusive bundling of international football events (Nasser Al-Khulaifi / beIN Media)
On 29th January 2018 the Cairo Economic Court found that beIN had abused its (...)
The Malaysian Competition Appeal Tribunal upholds a Competition Authority’s decision in a case of abuse of dominance in the provision and management of online foreign workers permit renewals (My E.G)
On 28 December 2017, the Competition Appeal Tribunal (CAT) upheld the Malaysian Competition Commission’s (MyCC) decision on 24 June 2016 that My E.G. Services Berhad (MyEG) and its wholly-owned subsidiary, My E.G Commerce Sdn. Bhd. (MyEG Commerce) have abused their dominant position in the (...)
The Paris Court of Appeal rules that there is not a restriction of competition by incumbent firms in the recycling sector (DKT / ECO-Emballage / Valorplast)
Brief summary of facts
Eco-Emballage is a public company in charge of the collecting and recycling of household packaging waste. It has concluded an agreement with Valorplast for recycling plastic. In 2004, DKT was created to recover household plastic waste. DKT reported allegedly abusive (...)
The EU Court of Justice prohibits selective distributors from selling luxury products on third-party online platforms (Coty Germany / Parfümerie Akzente)
On 6 December 2017, the Court of Justice of the European Union handed down its Judgment on the awaited Coty Germany v Akzente case. The case concerned whether a supplier of luxury cosmetics, operating a selective distribution system for its products, may validly prohibit its authorized (...)
The Moldovan Supreme Court of Justice quashes a Competition Authority’s decision regarding refusal to supply in the context of public procurement of pharmaceutical products (Esculap-Farm)
On 25 October 2017 the Supreme Court of Justice (SCJ) of the Republic of Moldova has quashed the decision issued by the Competition Council (CC) in a case concerning the refusal to supply pharmaceutical products purchased in the context of public procurement by public hospitals and other (...)
The Moldovan Supreme Court of Justice upholds the NCA decision concerning refusal to supply in the context of public procurement of pharmaceutical products (Medeferent)
On 4 October 2017 the Supreme Court of Justice (SCJ) of the Republic of Moldova has upheld the decision issued by the Competition Council (CC) in a case concerning the refusal to supply pharmaceutical products purchased in the context of public procurement by public hospitals and other public (...)
The Paris Court of Appeal increases the award of damages for an abusive refusal to sell and a territorial restriction infringement in the market for construction site machinery (Central Parts / JCB)
Brief summary of facts
The JCB companies manufacture and market construction site machinery, earthmoving and construction equipment and agricultural machinery as well as the spare parts for those various products. They were found guilty by the European Commission of abusive refusal to sell. (...)
The EU Court of Justice reverses the General Court’s decision in an abuse of dominance case against a Big Tech company in the market for processors and rules that rebates should be judged under the rule of reason (Intel)
Roundtable Discussion on the ECJ ruling in Intel*
On 6 September 2017, the European Court of Justice (“ECJ”) issued a landmark judgment where it set aside the judgment of the General Court (“GC”) in the highly debated Intel matter. This judgment is of particular significance because it (...)
The EU Court of Justice issues a landmark judgment on the legal treatment of fidelity rebates granted by dominant companies (Intel)
On 6 September 2017, the Court of Justice of the European Union (“ECJ”) issued its long-awaited judgment in the Intel case (Case C-413/14 P), setting aside the General Court’s (“GC”) judgment. The GC must now re-assess the legality of the Commission’s decision in light of the ECJ’s ruling. (...)
The EU Court of Justice defines the conditions for the legality of discounts made by dominant companies (Intel)
The European Court of Justice (ECJ) published its judgement in a highly expected case, largely due to the huge administrative fine of € 1,060 million set by the EC in 2009, but mostly because of its relevance in a very important area of commerce: the legal treatment of discounts by dominant (...)
The EU Court of Justice quashes a judgment of the General Court that upheld a fine of €1.06 billion for an abuse of dominance due to implementing loyalty rebates based on exclusivity agreements (Intel)
On September 6, 2017 ,the Court of Justice of the European Union (CJEU) quashed the 2014 judgment of the General Court (GC) that upheld a fine of €1.06 billion ($1.5 billion) on Intel Corporation Inc. (Intel) for abusing a dominant market position by implementing loyalty rebates based on (...)
The EU Court of Justice 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 EU Court of Justice annuls the General Court’s ruling that upheld the fine imposed by the Commission for an abuse of dominance (Intel)
What happened?
The European Court of Justice ("ECJ") set aside a General Court ruling that had upheld a €1.06 billion fine imposed by the European Commission on Intel for abusing its dominant position in the market for x86 central processing units ("CPUs").
Background
In its 2009 (...)
The EU Court of Justice endorses an effects-based assessment of rebates (Intel)
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On 6 September 2017, the Court of Justice of the European Union ("CJEU" or "Court") essentially held in Intel that the European Commission ("Commission") (...)
The Italian Regional Administrative Court for Latium upholds the infringement decision made by the Competition Authority against a pharmaceutical laboratory for excessive pricing (Aspen)
By the judgement handed down in Aspen v AGCM , the Regional Administrative Court of Latium (the Court) has recently determined the appeal lodged by a South African manufacturer of generic drugs, Aspen, against the 2016 decision made by Italian Competition Authority (ICA), rejected all the (...)
The French Court of Appeal for Paris awards damages to a claimant on the basis that the defendant’s refusal to deal could not be objectively justified and would be likely to exclude the claimant from the market (NGK Spark Plugs France / SCPI SIFAM Trading)
Brief summary of facts
NGK is an international manufacturer of spark plugs and distributes its products through a network of national subsidiaries in the EU (such as NGK Spark Plugs France). SIFAM expressed its interest in becoming an authorised distributor of NGK’s products. NGK refused on (...)
The Paris Court of Appeal affirms a lower court ruling that an incumbent telecoms operator constructively refused to deal with a downstream competitor by charging an excessive rate for a list of telephone subscribers (Orange / Lectiel)
Brief summary of facts
Orange, the French incumbent telecom operator, refused to provide Lectiel with a list of telephone subscribers. Orange offered to provide the list through a dedicated telematics service but Lectiel argued that the rate charged for such service was excessive.
The FCA (...)
The UK Competition Appeal Tribunal holds that a law society abused its dominant position in the market for anti-money laundering and mortgage fraud training (Socrates Training / The Law Society)
Brief summary of facts
Socrates Training Limited, a provider of online training, claimed that both it and the Law Society of England and Wales offer online anti-money laundering (AML) training for law firms on a commercial basis and online training to property lawyers to avoid mortgage (...)
The French Court of Appeal for Paris reduces damages to be paid by a telecoms company to a party with which it concluded an exclusive distribution agreement on the grounds that the claimant could not adequately evidence the damage that occurred as a result of opportunity cost (Orange Caraïbe / Outremer Telecom)
Brief summary of facts
Orange Caraïbe has: (i) imposed exclusivity clauses in distribution agreements with its independent distributors; (ii) applied an exclusivity clause inserted in a contract concluded with Cetelec, the sole authorised repairman of terminals in the Caribbeans; (iii) set (...)
The Beijing Intellectual Property Court finds an ad-block app breaching unfair competition provisions (Feihu / Sohu / Xiaoyi)
On 2 April 2017, the Beijing Intellectual Property Court upheld the first-instance judgement relating to an unfair competition claim brought by Feihu Information Technology Tianjin Company and Sohu against Beijing Xiaoyi Interaction Network Technology.
Xiaoyi operated an app that could play (...)
The US District Court of Appeals for the Tenth Circuit rejects claims challenging a medical-surgical distributor’s discount scheme (Suture Express / Cardinal Health / Owens & Micro)
Cases in which vertical restraints are challenged under Section 1 of the Sherman Act often require proof that the defendant has “market power”—the power “to force a purchaser to do something that he would not do in a competitive market,” which usually takes the form of a seller’s ability “to (...)
The US Court of Appeals for the Tenth Circuit affirms a lower court’s decision and dismisses the complaint due to difficulties to prove the possessed market power and the adverse effects on competition (Suture Express / Cardinal Health / Owens & Micro)
In an antitrust case involving bundled discount on sutures, the United States Court of Appeals for the Tenth Circuit affirmed a lower court decision granting summary judgment in favor of defendants Cardinal Health 200, LLC and Owens & Micro Distribution, Inc. The Tenth Circuit held that (...)
The Swedish Patent and Market Court upholds a decision by the Competition Authority to fine a tobacco company for abuse of dominance (Swedish Match)
Swedish Competition Authority: Tobacco company Swedish Match fined for abuse of market power*
The Patent and Market Court in Sweden has ruled that Swedish Match, a producer of snus tobacco, must pay fines amounting to almost SEK 38 million (€ 4 million) for abusing its dominant position. (...)
The US Court of Appeals for the Second Circuit overturns dismissal of an antitrust suit against an investment banking company accused of monopolizing the market for silver futures (Wacker / JP Morgan)
In an unsigned summary order in Wacker v. JP Morgan Chase & Co., a Second Circuit panel (Judges Cabranes, Pooler and Lynch) overturned dismissal of an antitrust suit brought by a group of precious metals traders and a hedge fund alleging that JP Morgan unlawfully monopolized the market for (...)
The Italian Administrative Court of Lazio partially upholds the fine imposed on the company managing the Milan airports for abusive practices in the general aviation sector (SEA)
Introduction
By an appeal judgment released in the SEA v AGCM case , the Administrative Court for the Region of Latium (the Court) has partially upheld the challenged decision made by the Italian Competition Authority (ICA) in Cedicor/SEA , by which the ICA fined the manager of the Milan (...)
The Bulgarian Supreme Administrative Court quashes the Competition Authority’s decision on an abuse of dominance case in the energy sector, due to a different economic analysis (Energo Pro)
The Supreme Administrative Court of the Republic of Bulgaria seating in 3-member panel (the “Supreme Administrative Court”, the “Court or the “Supreme Court”) repealed the decision of the Bulgarian Commission for Protection of Competition (the “Commission”) by virtue of which the Commission (...)
The US Court of Appeals for the Ninth Circuit affirms the right of app purchasers to sue a Big Tech company for monopolisation of the market for apps under the indirect-purchaser rule of Illinois Brick (Apple / Pepper)
Brief summary of facts
Claimants — purchasers of iPhones and iPhone apps — brought suit alleging that Apple had monopolised the market for iPhone apps. In the iPhone "closed system," Apple controls which apps will run on the iPhone software and, through its App Store, Apple earns a 30% (...)
The Polish Supreme Court finds that a decision of the Competition Authority and the judgment of the Court of Appeal failed to establish a sufficiently precise relevant market definition to enable the finding of an abuse of dominance in the natural gas sector (PGNiG)
In the judgment of the Supreme Court (“SC”) of 10 January 2017, (III SK 61/15) concerning the alleged abuse of dominant position by PGNiG S.A. – a Polish natural gas company, the case was referred back to the Court of Appeal in Warsaw (“CA”). The SC found that neither the President of the (...)
The Ljubljana Court of Appeal annuls a decision concerning minor offense proceedings against a collecting society (SAZAS)
Introduction
In SAZAS case, the Slovenian Competition Protection Office (hereinafter referred to as the CPO) adopted a partial administrative decision in April 2011 (Case 306-35/2009-108), finding that Združenje skladateljev, avtorjev in založnikov za zaščito avtorskih pravic Slovenije (...)
The Indian Competition Appellate Tribunal upholds the Indian Competition Authority’s decision for abuse of dominance against a coal company but cancels the fine due to the company already recently paying fine in a similar case (Sai Wardha Power / Coal India)
COMPAT upholds the order passed by CCI against Coal India Limited for abuse of dominance*
COMPAT by its order dated December 09, 2016 has upheld the order of CCI whereby it held that Coal India Limited and Western Coalfields Limited were acting independently of the market forces and enjoy (...)
The French Court of Appeal for Paris agrees that the tying of online and newspaper obituaries constitutes an abuse of dominance but reduces damages by eighty percent (Aviscom / La Montagne / Centre France Publicité / Dans nos cœurs)
Brief summary of facts
Aviscom operates a website for obituaries and condolences. It claimed that the newspaper La Montagne and the company “Dansnoscoeurs” it set up with other newspapers and which competes with Aviscom committed unfair commercial practices and abused their dominance. (...)
The Indian Competition Appellate Tribunal requests an investigation into an abuse of dominance by a global taxi services company (Meru Travels Solutions / Uber India)
COMPAT directs investigation against Uber India for Abuse of Dominance*
COMPAT by its order dated December 7, 2016, has set aside the order dated February 10, 2016 of CCI closing the information filed against Uber India Systems Private Limited (“Uber”) for alleged abuse of dominant position (...)
The Indian Competition Appellate Tribunal reverses the Competition Authority’s decision and orders an investigation into the national gas supplier for alleged unfair contractual terms (Gipcl Gujarat Industries Power Company / Gail Gas Authority of India)
COMPAT orders investigation against Gas Authority of India Limited (GAIL) for abuse of dominance*
COMPAT by order dated November 28, 2016 has set aside the order of CCI refusing investigation against GAIL for allegedly incorporating unfair terms and conditions in its gas supply agreements (...)
The Indian Competition Appellate Tribunal reverses the Indian Competition Authority’s decision for a second time and orders an investigation against movies producers (K Sera Sera Digital Cinema / Digital Cinema Initiatives)
COMPAT orders investigation against producers of Hollywood movies*
COMPAT by its order dated November 9, 2016 has ordered investigation against 6 producers of Hollywood films for the allegedly forcing a technology, called D-Cinema technology, for providing cinema screening under the auspices (...)
The Montenegrin Competition Authority fines a port operator and its director for abuse of dominance (Luka Kotor)
The Montenegrin antitrust authority, the Agency for Protection of Competition of Montenegro (“Agency“), announced that the Higher Misdemeanour Court of Montenegro imposed on 10 July 2018 a fine in the amount of EUR 27,249.54 on the Montenegrin port operator “Luka Kotor” A.D. (“Luka Kotor“) for (...)
The EU Court of Justice AG Wahl opts for a more effect-based approach on rebates and proposes an annulment of the EU General Court’s judgment (Intel)
In Intel’s appeal against the General Court’s judgement of June 2014 (which upheld the Commission’s decision that Intel abused its dominant position by virtue of operating exclusivity rebate schemes – see here for our e-bulletin on the judgment), Advocate General Wahl recommends that the Court (...)
The EU Court of Justice AG Wahl recommends that the Court grant an appeal against the judgment of the General Court, which had upheld a decision of the Commission imposing a fine of €1.06 billion for abuse of a dominant position (Intel)
On 20 October 2016, Advocate General Wahl rendered his opinion on Intel’s appeal before the Court of Justice of the European Union (“CJEU”) against the judgement of the General Court, which had upheld a decision of the European Commission of 13 May 2009 imposing a fine of € 1.06 billion for (...)
The French Supreme Court confirms fines imposed on undertaking for abusive limitation of generic entry (Sanofi-Aventis)
On 18 October 2016, the French Supreme Court upheld the decision of the French Competition Authority (“FCA”) which had fined the pharmaceutical company Sanofi-Aventis over € 40 million for having abused its dominant position on the market for the active ingredient clopidogrel. Sanofi-Aventis (...)
The Chinese Kunming Intermediate People’s Court decides that a refusal to purchase in the refined oil market is not anticompetitive (Yunnan Yingding Biological Energy / Sinopec)
On 8 October 2016, the Kunming Intermediate People’s Court amended its first-instance decision in the refusal to deal dispute between Yunnan Yingding Biological Energy, a biodiesel company, and Sinopec’s branch in Yunnan. In December 2014, the court had originally decided the case in the (...)
The US Court of Appeals for the Third Circuit recognizes that a product hopping in the face of a “patent cliff” can constitute conduct in violation of the antitrust laws (Mayne / Warner Chilcott / Mylan)
The Third Circuit’s recent product-hopping decision in Mylan Pharm. Inc. v. Warner Chilcott Pub. Ltd. Co (“Doryx”) has been widely criticized by commentators as breaking with established antitrust precedent. Mylan, the last remaining plaintiff in the case following a series of settlements at (...)
The Indian Competition Appellate Tribunal sends a case back to the Indian Competition Authority for reconsideration of the investigation’s findings (Jaypee Greens)
Competition Appellate Tribunal (COMPAT) set-aside CCI decision exonerating Jaypee Group for abuse of dominance and remands the matter back for re-consideration*
COMPAT by its order dated September 28, 2016 has set-aside the order of CCI in which the CCI exonerated Jaypee Group from (...)
The Danish Maritime and Commercial High Court rules on excessive pricing concerning the delivery of electricity (ELSAM III)
Summary of the case
In an August 2016 ruling the Danish Maritime and Commercial High Court (Sø- & Handelsretten) confirmed that the Danish energy incumbent DONG Energy A/S (“DONG”) had infringed Article 102 and the Danish equivalent by charging excessive prices for the delivery of (...)
The Indian Competition Appellate Tribunal upholds the Competition Authority’s dismissal of abuse of dominance allegations against a mining company in the market for chrome ore (All Odisha Steel Federation / Orissa Mining Corporation)
Competition Appellate Tribunal (COMPAT) upholds CCI order dismissing abuse of dominance allegation against Orissa Mining Corporation (OMC)*
COMPAT by its order dated August 30, 2016 has upheld order of CCI which had dismissed allegations of abuse of dominance by OMC has been indulging in (...)
The Indian Competition Appellate Tribunal upholds the Indian Competition Authority’s dismissal of abuse of dominance allegations against a global telecom provider in the market for international roaming services (Vishwambhar Marutirao Doiphode / Vodafone India)
COMPAT upholds CCI order dismissing abuse of dominance allegation against Vodafone*
COMPAT by its order dated August 16, 2016 has upheld order of CCI whereby it declined to order an investigation into the allegations of abuse of dominance by Vodafone India for levying exorbitant charges for (...)
The Indian Competition Appellate Tribunal reverses the Competition Authority’s fine for discriminatory practices against a public undertaking due to objective justification (Indian Exhibition Industry Association / Ministry of Commerce and Industry / India Trade Promotion Organisation)
Competition Appellate Tribunal (COMPAT) sets aside penalty imposed on India Trade Promotion Organization for abuse of dominance*
COMPAT by its order dated July 1, 2016 has set aside the penalty imposed by the Competition Commission of India (CCI) on India Trade Promotion Organization (ITPO) (...)
The Italian Court of Milan partially upholds a follow-on damages claim filed by an airline against an airport service provider for overcharges and abuse of dominance, but declines to impose damages on the grounds of passing-on defence (Swiss International Airline / SEA)
Brief summary of facts
A Swiss airline brought a claim for damages against the Malpensa Airport service provider for the overcharges it endured between March 2002 and April 2009, as airport services were charged as if it were an extra-European airline. On 26 November 2008, the ICA resolved (...)
The Indian Competition Appellate Tribunal cancels fine for abuse of dominance against coal company due to the Indian Competition Authority’s failure to uphold the principle of natural justice (Coal India)
COMPAT sets-aside penalty of INR 1,773 Crores penalty on Coal India Limited (CIL) by CCI*
COMPAT by its order dated May 17, 2016 has set aside CCI’s order dated April 15, 2014 wherein CCI had fined Coal India Limited for imposing unfair and discriminatory conditions in its fuel supply (...)
The US Court of Appeals for the Third Circuit rejects antitrust claims predicated on a supplier’s market-share discount program and other promotional tactics (Eisai / Sanofi)
On May 4, 2016, the U.S. Court of Appeals for the Third Circuit announced its decision in Eisai, Inc. v. Sanofi Aventis U.S., LLC, rejecting antitrust claims predicated on a supplier’s market-share discount program and other promotional tactics. While the court’s decision adds some definition (...)
The US Court of Appeals for the Third Circuit declines to apply the price-cost test to a loyalty discount case in the pharmaceutical sector (Eisai / Sanofi)
On May 4, 2016, the Third Circuit—following the principles it set forth in LePage’s, Dentsply, and ZF Meritor—affirmed a decision by District of New Jersey Judge Mary L. Cooper granting summary judgment in favor of the defendant in Eisai, Inc. v. Sanofi-Aventis U.S., LLC. Eisai is the latest (...)
The Indian Competition Appellate Tribunal upholds the Competition Authority’s dismissal of abuse of dominance allegations against an airline company (Air India / InterGlobe Aviation)
COMPAT rules that IndiGo’s predatory recruitment of Air India’s trained pilots is not a competition issue but an employment issue*
COMPAT by its order dated April 29, 2016 has upheld the CCI order dated February 10, 2016 refusing to intervene in the matter of predatory recruitment of Air (...)
The Paris Court of Appeal dismisses a predatory pricing claim against a postal services provider for lack of evidence (Imperial Pub / GPS / La Poste / Mediapost)
Brief summary of facts
Imperial Pub and GPS, active on the market for distribution of unsolicited advertising leaflets, claimed that Mediapost, which is also present on this market and a subsidiary of La Poste (French universal postal service provider), benefited from unfair advantages due (...)
The Higher Regional Court of Düsseldorf rejects an appeal lodged by the German incumbent postal services operator, against a decision of the Federal Cartel Office in an abuse of dominance case (Deutsche Post)
In a recently published decision of 6 April 2016, the Higher Regional Court of Düsseldorf (“Court”) rejected an appeal lodged by Deutsche Post AG (“DPAG”), Germany’s incumbent postal services operator, against a decision of the German Federal Cartel Office (“FCO”).
By decision of 2 July (...)
The Chinese Supreme People’s Court dismisses an application to re-try a case in Shaanxi involving taxis and exclusive dealing (Taxi case)
On 17 March 2016, the Supreme People’s Court (SPC) released its decision to dismiss an application to re-try a case in Shaanxi involving taxis and exclusive dealing. In that case, two private local taxi companies sued three other local taxi companies for exclusive dealing. The SPC made its (...)
The UK Competition Appeal Tribunal issues a settlement decision to conclude a "fast track" stand alone damages claim against a supermarket for land use restrictions (Shadhid / Tesco)
Brief summary of facts
In 1997, the claimants sold land to Tesco. Under the transfer agreement, the land retained by the claimants was subject to a covenant "not to use or permit any of the Retained Land to be used for the sale of food convenience goods or pharmacy products".
The (...)
The Indian Competition Appellate Tribunal upholds the Competition Authority’s decision and clarifies requirements for an interim injunction (Fast Track Call Cab / ANI Technologies / OLA Cabs)
COMPAT refuses interim relief to Fast Track Call Cabs in ongoing investigation against Ola for predatory pricing in radio taxi services in Bengaluru*
COMPAT by its order dated March 9, 2016 has upheld the CCI order dated September 3, 2015 refusing to grant interim injunction against (...)
The Indian Competition Appellate Tribunal refers the case back to the Competition Authority for investigation and clarifies that governmental health office constitutes an "enterprise" under the Competition Act (Biswanath Prasad Singh / DGHS Director General of Health Services)
COMPAT directs re-consideration of matter against Director General of Health Services & Others*
COMPAT by its order dated March 1, 2016 has set-aside the decision of CCI whereby CCI has refused to order investigation against the Director General Health Services (DGHS) for discriminating (...)
The UK High Court dismisses a claim for abuse of dominance brought against a Big Tech firm by an online map provider and holds that an alleged harmful effect of a pro-competitive innovation by a dominant company must be significant in the market to constitute an abuse (Streetmap / Google)
Brief summary of facts
Streetmap alleged that Google abused its dominant position in the online search and/or online search advertising markets by bundling Google Search with Google Maps, thereby depriving users of an undistorted choice of online mapping services; giving Google Maps an (...)
The Paris Court of Appeal overturns an abuse of dominance ruling in the market for online mapping allowing for the geolocalisation of sales points on company websites (Google / Evermaps)
Paris Court of Appeal overturns Google abuse of dominance ruling*
On November 25, 2015, the Paris Court of Appeal (PCA) reversed the December 2012 ruling of the Commercial Tribunal of Paris (CTP) , which found that Google (specifically Google France and Google Inc.) abused its dominant (...)
The Paris Court of Appeal rejects a damages claim that alleged that a Big Tech firm offering a competing app for free constitutes a predatory pricing infringement (Société Evermap / Google)
Brief summary of facts
Google France launched the Google Map app, an application offering mapping services without charge, and as useful as the paid version. Evermaps, a competitor of Google Maps, claimed that, with the Google Map app, Google intended to attract customers and eliminate (...)
The French Court of Appeal for Paris grants a logistics company an award of damages of €50,000 for loss of opportunity to win clients (Rocca Transports / Société Nationale Maritime Corse Méditerranée)
Brief summary of facts
SNCM implemented a discount system aiming to gain larger volumes of transport activities. This scheme only applied to the customers who shipped from Toulon. Rocca Transports (customer) could not benefit from such discounts as it shipped its products from Marseille. It (...)
The Moscow Arbitration Court confirms that a pharmaceutical company has abused its dominance by stopping to supply insulin (Novo Nordisk)
Cassation Court confirmed: “Novo Nordisk” violated the antimonopoly law*
On 21 October 2015, the Arbitration Court of the Moscow District upheld the ruling of the 9th Arbitration Appeal Court of 29 June 2015 and dismissed a cassation appeal of “Novo Nordisk” against the decision of the (...)
The Moscow Arbitration Court confirms that an electricity provider has abused its dominance in the market of electric power transmission (MRSK Siberia)
Arbitration Court supported Kemerovo OFAS in a dispute with “MRSK Siberia”*
Arbitration Court of the Kemerovo Region pronounced legitimacy and determination of the Office of the Federal Antimonopoly Service in the Kemerovo Region (Kemerovo OFAS) with regard to “MRSK Siberia” OJSC. The (...)