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14/03/2019 - Identical notion of undertaking for "public" and "private" enforcement

On March 14, 2019, in case C-724/17, Vantaan kaupunki c. Skanska Industrial Solutions Oy e.a., the Court of Justice issued a judgment extending the concept of undertaking, as applicable to EU competition law, to private actions for compensation of infringements to competition law brought at Member States level.

The Court reiterated that, while it is within the internal legal order of each Member State to regulate the manner in which the right to claim compensation for the harm resulting from an anticompetitive practice should be brought, the question of the determination of the legal body to be held liable for damages caused by an infringement of Article 101 TFEU is directly governed by EU law through the concept of undertaking, as used in Article 101 TFEU. It is therefore for the undertaking, within the meaning of Article 101 TFEU, which participated in the anticompetitive practice, to compensate the victim for the damage caused by that practice.

The Court also confirms that the new Damage Directive (Directive 2014/104/EU) is in line with this interpretation. 

Finally, the Court recalls that actions for damages for infringement of UE competition rules are an integral part of the system for enforcement of those rules, which are intended to punish anticompetitive behaviour on the part of undertakings and to deter them from engaging in such conduct. The concept of “undertaking” within the meaning of Article 101 TFEU cannot therefore have a different scope with regard to the imposition of fines by the Commission as compared with actions for damages for infringement of EU competition rules. 

By standardizing the rules of "public" and "private" enforcement, the Court again demonstrates, if it were still necessary to do so, the crucial importance of these two interdependent aspects of competition law and, consequently, of the articulation of national and UE laws of competition.

03/12/2018 - The EU Regulation prohibiting geo-blocking has entered into application

Regulation n°2018/302 is part of a series of new rules aiming at the development of e-commerce (revised Payment Services Directive, revised consumer protection rules, simplified VAT rules for online sales, etc.), within the scope of  the digital single market strategy launched by the European Commission in 2015. These new rules will ensure better access to goods and services offered online within the Internal Market.

As of 3 December 2018, any form of restriction or discrimination from online sellers based directly or indirectly on customers’ nationality, place of residence or place of establishment is prohibited.

Such restriction may appear in various forms: denying the possibility to purchase or to access web content across borders, denying delivery across borders, providing different prices or conditions depending on nationality, rerouting automatically web users to the webpage dedicated to their country of origin, etc.

In 2015, according to the European Commission up to 63% of websites didn’t allow consumers to buy online from another Member State. This situation is now due to change.

11/09/2017 - As illustrated by the INTEL case relating to the rebates granted by an operator holding a dominant position, the economic analysis presented by a party should be completely taken into account

The 6th of September 2017, the Grand Chamber of the European Court of Justice set aside the judgment rendered on 12th June 2014 in which the General Court confirmed the 1.06 billion euros sanction inflicted to Intel by the European Commission and referred the case back to the General Court.


Following a formal complaint, the European Commission had established that the conditional rebates and the ‘naked restriction’ intending to exclude a competitor, which were set by Intel,constitute an abuse of dominant position on the market for x86 processors.


These conducts consisted, on the one hand, in the grant of rebates to trading partners which were conditioned on these companies purchasing all or almost all of their processors from Intel and, on the second hand, in making payments to the same companies in order to delay, cancel or restrict the marketing of certain products equipped with competing processors.


After the General Court rejected its claim, Intel brought the case before the European Court of Justice.


Although the European Commission stressed that such rebates are by their very nature capable of restricting competition, it had also conducted an analysis based on the AEC test (“As Efficient Competitor test”) to demonstrate the restrictive effects of these rebates on the market. However the General Court did not deem it necessary to take into account the applicant’s claim about the validity of this analysis, considering such conducts as necessarily detrimental to competition.


On the contrary, the ECJ recalls that the exclusionary effect arising from a rebates system, even when it is as targeted as the one at stake, is not always detrimental to competition. Accordingly, it invalidates the reasoning of the General Court, considering that such conducts may be counterbalanced, or outweighed, by advantages in terms of efficiency which benefit the consumer.


As a consequence, the General Court could not have confirmed the existence of a restriction to competition without first examining all of the applicant’s arguments seeking to call into question the validity of the Commission’s findings concerning the foreclosure capability of the rebates at stake.


The case is therefore sent back to the General Court to determine whether the conducts at issue are capable of restricting competition, by evaluating the AEC test performed by the Commission.


This long awaited judgment enshrines the necessity to take into account all the circumstances of a case when evaluating the conduct of companies holding a dominant position in regard to article 102 TFEU.


Furthermore it should not be overlooked that, in addition to affirming the essential role of the AEC test, the Court also rejected some of Intel's other arguments, relating to the procedure and to the European Commission’s jurisdiction. In particular, it should be emphasized that the Court confirmed the reasoning of the General Court on the Commission competence to condemn conducts that have been implemented outside the Union, if they cause "qualified effects" (meaning that it is foreseeable that they will have immediate and substantial effects) within the Union.

16/05/2017 - The European Court of Justice rules on the UE’s competence to conclude the free trade agreement with Singapore

On May 16, 2017, the European Court of Justice ruled that not all the provisions of the free trade agreement between the EU and Singapore can be concluded without the assent of the Member States.


This agreement is a ‘new generation’ bilateral free trade agreements initialled by the EU and Singapore in June 2015. It contains (in addition to the usual provisions on the reduction of customs duties and of non-tariff barriers to trade in goods or services) provisions on various matters related to trade, such as intellectual property protection, investment, public procurement, competition and sustainable development.


The Commission submitted a request to the Court of Justice for an Opinion to determine whether or not the agreement is within the scope of the EU’s exclusive competence and, as a consequence, if the EU is entitled to conclude such an agreement alone.


In its Opinion the ECJ states that the EU has an exclusive competence in matters related to free movement of goods and services, public procurements, sustainable development, competition, protection of direct investments and protection of intellectual property. However, the Court of Justice identifies two matters involving shared competence between the EU and the Member States and thus requiring the approval of said Member States: the regulation of non-direct foreign investments and the regime governing dispute settlement between investors and States.


As a consequence, this agreement between the EU and Singapore, but also any similar “new generation” agreement, will have to be jointly concluded by the Union and the Member States for the provisions relating to shared competence, which are now listed by the ECJ in this Opinion.

16/03/2017 - The Directive 2014/104/EU on antitrust damages actions has been transposed into French law

By an Ordinance and a Decree of 9 March 2017, the Directive 2014/104/EU “on certain rules governing actions for damages under national law for infringements of the competition law provisions” was transposed into French law.

This text simplify, even encourage, actions for damages to compensate the harms suffered from an infringement to competition law (anticompetitive agreements, abuses of dominance, abuses of economic dependency), but also incite alternative dispute resolution, which always has the preference of our Firm since these procedures are faster and more equitable for the victims.

The main mechanisms incorporated in French law are:
-the principle that the infraction definitively characterized by the French Competition Authority or the appeal jurisdiction is irrefutably presumed in an action for damages before the French jurisdictions (new art. L.481-7 of the French Commercial Code);
-the right to full compensation for the harm suffered, including the actual loss, the loss of profit, the loss of opportunity or the moral prejudice (new art. L.481-3 of the French Commercial Code);
-the organization of the joint and several liability between the infringers and the incidence of alternative dispute resolution on it (new art. L.481-9 s. of the French Commercial Code);
-the clarification of the limitation rules (new art. L.482-1 of the French Commercial Code);
-the influence of alternative dispute resolution on the amount of the fine imposed by the French Competition Authority (art. L. 464-2 of the French Commercial Code).

The implementation of these new provisions shall facilitate the compensation for the harm resulting from competition law infringements and make it more efficient, faster and less expensive.
 

10/03/2017 - The European Parliament has ratified the CETA

On the 15 October 2017, the European Parliament approved the Comprehensive Economic and Trade Agreement (CETA), establishing a free trade area between the EU and Canada.

So far Canada has been one of the main trade partners of the EU and this Agreement’s objective is to enhance the commercial exchanges, to contribute to job creation, to sustain economic growth and to develop new business opportunities for companies.

For instance, this Agreement states:
-the elimination of custom duties;
-the elimination of all kind of trade barriers (by increasing the import quotas, by guaranteeing the access to public procurements and contracts, by establishing a cooperation on regulation, etc.);
-the freedom to provide services;
-the facilitation of investments;
-the protection of some geographical indications;
-the enhancement of intellectual property rights.

The CETA still have to be ratified by each Member State Parliament before entering into force. However, in the meantime and from the ratification by the Canadian Parliament the disposition relating to the EU’s competences will come into effect. This is especially the case of the disposition relating to the elimination of customs duties, to the elimination of the technical barriers to trade, to the freedom to provide services, to competition policy or to the access to public procurements.

24/02/2017 - Compensation for excessive duration of the proceedings before the General Court

In a series of judgments delivered in January and February 2017 in the so-called “industrial plastic bags” cartel case, the General Court was asked to rule on the Union's liability for excessive duration of the proceedings before… the Court of First Instance of the EU. These judgments are remarkable for several reasons.

 

First, the General Court was confronted to a number of actions brought against the European Union, represented by the Court of Justice, for the excessive duration of the proceedings before the Court of First Instance (ie itself). Despite appearances, this distribution of roles does not affect the impartiality of the General Court since its composition differs from the composition of the Court of First Instance that ruled in the first place.

 

Second, these cases follow the position taken by the Grand Chamber of the Court of Justice in the Gascogne v. Commission judgments issued on 26th November 2013. In those judgments the Grand Chamber called for the dissociation of the challenge of a cartel fine’s amount on the one hand, and the question of the EU’s liability relating to the proceedings before the Court of Justice on the other hand. By doing so, the Court of Justice overruled its previous jurisprudence (ECJ, 17 December 1998, Baustahlgewebe v. Commission, C-185/95) according to which a reduction of the fine could be granted so as to take into account the financial consequences arising from the excessive duration of the proceedings before the Court of First Instance.

 

Finally, these judgments provide valuable insight for future disputes relating to the UE’s liability due to excessive duration of proceedings before the General Court. The claim and arguments must be carefully calibrated. For instance, the reality and certainty of a prejudice or the evaluation of the prejudice duration must be precisely established by the applicant.


Tribunal de l’UE, 10 janvier 2017, Gascogne Sack Deutschland et Gascogne / Union, aff. T-577/14
Tribunal de l’UE, 1er février 2017, Kendrion / Union européenne, aff. T-479/14
Tribunal de l’UE, 17 février 2017, ASPLA et Armando Álvarez / Union européenne, aff. T-40/15

12/06/2014 - Rebates granted by an undertaking holding a dominant position

The General Court of the European Union has rendered a long awaited judgment in the “Intel” case. The Court has fully confirmed the Commission Decision of 13 May 2009, considering that so-called “exclusivity rebates” are “per se” restrictive of competition when they are granted by an undertaking holding a dominant position. According to the Court, it is therefore necessary neither to examine the practical effects of this practice on the market, nor to carry out an “AEC” test (“As Efficient Competitor” test), i.e. to examine whether such practice has the capability to forclose an as efficient competitor, albeit not dominant.

In another interesting part of the judgment, the Court has reaffirmed the criteria to assess the Commission’s jurisdiction under international law to take decisions against companies located outside the EU. According to the Court, it is sufficient to establish either the effects of the practice in the European Union or that it was implemented in the European Union. These two criteria are alternative, and not cumulative

 

Case T-286/09, Intel Corp v/ Commission

05/06/2014 - « Umbrella pricing » : the members of a cartel can be held responsible

Case C-557/12, Kone AG and al. 

The Court of Justice has ruled that national law on responsibility cannot, as a principle, set aside the responsibility of the members of a cartel for high prices charged by a third party to that cartel. The client of a company who is not a member of the cartel must be allowed to ask for damages from the members of the cartel, if all the conditions are met to engage their responsibility.

As importantly, the Court of Justice considers that the fundamental right of victims to be compensated must be above the protection of the leniency procedure set up by the Commission, “which has no legislative force”

22/05/2014 - Measures against avian flu and fundamental rights

The Court of Justice has rendered a judgment on the interpretation of decisions taken in 2006 at the European level regarding the transportation of poultry in order to fight against the avian flu, and confirms that possible compensations for damages caused by such measures must be dealt with under national law.

Case C-56/13, Ersekcsanadi Mezögazdasagi Zrt

21/05/2014 - State Aids

The Commission adopts two new measures within the frame of the State Aid Modernisation (“SAM”) :

-New Guide Lines for Aids to Research and Development.

-New Block Exemption Regulation which will enter into force on 1st July 2014

21/05/2014 - Customs and International Trade

Report from the European Court of Auditors : « Are preferential arrangements appropriately managed ? »

Special report n° 2/2014

13/05/2014 - Droit à l'oubli sur internet

Judgment of the Court of Justice of the European Union « Google Spain and Google Inc. v/ Agencia Espanola de Proteccion de datos eand Mario Costeja Gonzalez » (case C-131/12)

The Court of Justice (Grand Chamber) has affirmed, on the basis of Directive 95/46 on the protection of personal data, together with articles 7 and 8 of the Charter of Fundamental Rights, the right for an individual to obtain that information related to him does not appear on the list of results obtained through a search on his name on the internet with a search engine

 

09/05/2014 - Stae Aids

The Commission has expressed some doubts as to the compatibility of State Aids granted by the “Ile de France” Region and invites interested parties to submit their observations with one month.

OJEU C 141 p. 38-46

08/05/2014 - Possible national geographic indications for foodstuffs

The Court of Justice has ruled that a geographical indication which has not been registered at the EU level is not protected under Reg. 2081/92 on Protected Appellations of Origin and Protected Geographical indications (PAO and PGI), now Reg. 1151/2012 on Quality Schemes. However, if this geographical indication does not refer to qualities of the product linked to the designated geographical name, it does not fall within the scope of the EU regulation and can therefore be protected under national law, subject to the principle of free movement of goods within the EU.

Case C-35/13, Assica and al.

07/05/2014 - Country correspondant for France, European Food and Feed Law Review

 

Lexxion, Berlin

Since 2006 (quarterly)

07/05/2014 - Country correspondant for France, European State Aid Law quarterly

 

Lexxion, Berlin

Since 2008 (quarterly)

10/04/2014 - Fines in Competition Law

The Court of Justice has annulled part of a Judgment of the General Court of 3 March 2011, and confirmed that the principle that the penalty must be specific to the offender relates only to the undertaking within the meaning of competition law, i.e. including the mother company and its subsidiaries taken together. The penalty must therefore not be specific to each part of this undertaking, and it is not up to the Commission to determine the share of the fine to be borne by each company forming part of the undertaking. This share should be determined by national law.

Case C-231/11 à C-233/11 P, Siemens and al.

03/04/2014 - State Aid to La Poste

The Court of Justice has confirmed the Judgment of the General Court of 20 September 2012 according to which an implicit guarantee of the French government in favor of “La Poste” granted to the latter an advantage constituting a State aid which had to be suppressed.

Case C-559/12 P, France v/ Commission

03/02/2014 - European Food Law and Regulation - Institute for Food Law and Regulations webcourse - Michigan State University

 

Nicole Coutrelis

Course given every semester since the webcourse has started in 1999 

 

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