by Martina Maier and Philipp Werner
On Tuesday, June 28, 2011, the German supreme court (Bundesgerichtshof-BGH) has clarified two important questions concerning cartel damages actions in Germany.
First, indirect purchasers as well as direct purchasers are entitled to seek damages from cartel members. Second, cartel members can use the "passing-on" defence and argue that their customers have passed on the damage suffered from the cartel (BGH, judgement of 28 June 2011 – KZR 75/10).
by Veronica Pinotti and Martino Sforza
In Europe, the interplay between antitrust and criminal law at the national level may vary significantly by jurisdiction. Some European Union member states, such as the United Kingdom, Ireland, and Romania, have criminalized competition law. Other jurisdictions, such as Germany and Italy, do not envisage criminal penalties for anticompetitive practices; however, such conduct may sometimes qualify as a separate criminal offense. The following cases, across Europe, show that there appears to be a general trend towards more effective enforcement against serious antitrust violations – including by means of criminal penalties against individuals – and not only in the countries with criminal competition laws.
To read the full article, please visit: https://mwe.com/info/pubs/pinotti0611.pdf
by Martina Maier, Philipp Werner and David Henry
The European Court of Justice (ECJ) ruling of 14 June 2011 followed a case that originated in Germany. Pfleiderer, a firm in the wood industry, was considering a damages claim against members of a paper cartel. It sought access to the cartel files held by the German Competition Authority (FCO) in order to substantiate its claim. A dispute followed over whether disclosing the documents of companies who had cooperated with the FCO would undermine the national leniency programme since potential leniency applicants would fear eventual disclosure.
A German court asked the ECJ for a preliminary ruling whether or not the provisions of EU competition law are to be interpreted as meaning that cartel victims can be granted access to leniency applications received by an EU Member State competition authority.
The ECJ has held that it was for the courts and tribunals of each EU Member State on the basis of their own national law to determine the conditions under which such access must be permitted or refused by weighing the interests protected by EU law. The upshot of this ruling is therefore that each judge in each Member State has a discretion as to what type of leniency document can be disclosed to a cartel victim. The ECJ has therefore distanced itself from recommendations made by the Advocate General who suggested that documents which existed before the cartel was uncovered could be disclosed but said that submissions drafted for the purpose of revealing the infringement should be protected.
For leniency applicants, weighing the decision whether to apply for leniency has now become even more complex. On the one hand, a potential leniency applicant stands to benefit from immunity, or a reduction, from fines. On the other hand, it will now have to take into consideration not only the remaining risk of a fine and criminal sanctions but also the the fact that private damages claimant might get easier access to incriminating evidence. Such complexity is all the more greater given that the ECJ’s ruling may lead to different results in different European countries.
The Japan Fair Trade Commission (JFTC) has issued two Communications on the extent to which industry coordination intended to deal with the aftermath of the great Tohoku earthquake catastrophe will or will not run afoul of Japanese antitrust rules. The JFTC’s guidance does not apply to business activities outside Japan.
To read the full article, please visit: https://www.mwe.com/info/news/ots0511d.htm.
by Henry L.T. Chen, Frank Schoneveld and Michael Xu
The China Automobile Dealers Association recently issued a formal complaint to Mercedes-Benz Beijing regarding its allegedly illegal “double limit” policy for car dealers—minimum prices and restrictions on sales into other dealers` territories—revealing tension between a widespread industry practice and China’s Anti-Monopoly Law.
To read the full article, please visit: https://www.mwechinalaw.com/news/2011/chinalawalert0411a.htm.
by Jon B. Dubrow, Gregory E. Heltzer, Blake H. Winbourne and Carrie G. Amezcua
The U.S. Federal Trade Commission and the U.S. Commodity Futures Trading Commission signed a memorandum of understanding that will facilitate the sharing of non-public information for “official law enforcement purposes,” and increase investigation risks for firms.
To read the full article, please visit: https://www.mwe.com/info/news/ots0411i.htm.
Following a 2007 cartel decision of the Greek competition authority imposing a total fine of EUR 48.3m on seven companies for information sharing, price fixing and retail price maintenance, a Greek court handed down a criminal judgment yesterday (12 April 2011), imposing fines of 9,000 euros on each of the three managers of one of the firms. The case was brought by the public prosecutor.
While the amount of the fines is relatively low, this appears to be the first such criminal conviction in Greece. It shows that the criminalisation of antitrust laws in Europe gains ground.
The Greek law applicable at the time of the infringement made provision only for pecuniary sanction but has changed since and now includes the possibility of prison sentences.
by Martina Maier, Philipp Werner and David Henry
The European Court of Justice recently expanded upon the scope of the law in relation to pricing practices of vertically integrated companies. The ruling impacts dominant, vertically integrated companies active both within and outside regulated markets, such as telecoms. All dominant, vertically integrated undertakings on both sides of the Atlantic must be sure to tailor their commercial pricing policies in such manner that they comply with the EU dominance rules.
To read the full article, please visit: https://mwe.com/info/news/bb030911.htm.
by Henry L.T. Chen and Frank Schoneveld
China’s State Administration for Industry and Commerce has imposed the first fines for violation of the country’s Anti-Monopoly Law on a concrete cartel. The swift action indicates business operators should anticipate more widespread and vigorous investigations by the newly empowered Chinese competition regulatory authorities.
To read the full article, please visit: https://www.mwechinalaw.com/news/2011/chinalawalert0211c.htm.
Today the Department of Justice announced that Horizon Lines LLC agreed to plead guilty and pay a $45 million fine for its involvement in price fixing coastal water freight services between the continental U.S. and Puerto Rico. This plea is the result of an ongoing federal antitrust investigation into price fixing and bid rigging in the coastal water freight transportation industry. As a result of the investigation, five former executives have been charged and sentenced to serve prison time.
For additional information, please visit: https://www.justice.gov/atr/public/press_releases/2011/267605.htm
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