by Wilko van Weert and David Henry
On 5 March 2013, the Brussels Court of Appeal delivered a judgment finding that, under Belgian law, in-house counsel are covered by legal professional privilege (LPP). In relation to antitrust investigations, the ruling highlights that LPP in the European Union depends on, not just local rules, but also whether or not the European Commission is involved in the investigation.
To read the full article, click here.
by Philip Bentley, QC, Veronica Pinotti, Wilko van Weert and Philipp Werner
On 29 January 2013, the UK Government’s Department for Business, Innovation & Skills announced new proposals designed to improve the ability for consumers and businesses to bring collective damages claims against competition law infringers.
The new proposals contain novelties that should make it easier for consumers and businesses to claim damages for loss arising out of competition infringements. While this may increase the financial exposure of the infringers, it could also introduce a greater degree of clarity as to the procedural rights of both sides, and provide infringers with the possibility to settle matters quickly and with limited publicity.
The UK Government’s new proposals, which were preceded by extensive public consultation, would
An Increased Role for The Specialist CAT
The new proposals seek to make the CAT—which is a specialist tribunal—the jurisdiction of choice for all private damages actions in the United Kingdom.
First, the CAT would be given jurisdiction to try stand-alone claims in addition to its current jurisdiction to try “follow-on” claims. Follow-on claims are those made after the European Commission or the UK Competition Authority has determined that an infringement exists, and so the only issues before the CAT are those of causation and the amount of damages to be awarded. In stand-alone claims, on the other hand, the CAT itself will have to determine whether an infringement exists. At present, stand-alone claims can only be brought before the High Court in England and Wales (or the Court of Session in Scotland).
Second, the limitation period for bringing stand-alone and follow-on claims before the CAT would be aligned with that for the High Court in England and Wales, namely six years, and that for the Court of Session in Scotland, namely five years.
Third, the CAT would be empowered to grant injunctions in proceedings in England and Wales and Northern Ireland, but not interdicts in Scottish cases.
Fourth, a fast track procedure would be instituted for simple cases before the CAT, with a cap on costs set on a case-by-case basis by the CAT at its discretion.
Finally, where appropriate, it would be possible to transfer cases from the High Court or the County Court in England and Wales to the CAT and from the CAT to the High Court. In Scottish cases such transfers would be possible between the corresponding Scottish courts and the CAT.
The Introduction of an Opt-Out Collective Actions Regime
The new proposals would create a new form of collective action—an opt-out competition damages action—designed to avoid the [...]
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by Wilko van Weert and Philipp Werner
On 20 February 2013, the European Commission launched a public consultation in relation to a draft proposal for a revised block exemption for technology transfer agreements (the proposal). The Commission seeks to improve and update the current legal regime on technology licensing, with a view to encouraging competition, strengthening incentives for research and development activities and facilitating the diffusion of intellectual property.
To read the full article, click here.
by David Henry and Wilko van Weert
In a recent judgment, a District Court in the Netherlands (the DCA) handed down a judgment in what is the first substantive damages judgment in the Netherlands for a breach of competition law. In issuing the declaration of liability, the DCA held that ABB must pay damages to the Dutch grid operator TenneT for the overcharge that arose as a result of the gas insulated switchgear cartel, putting aside arguments by ABB that any damages should take into account the fact that the overcharge had been passed on to customers of TenneT. The court considered that in this case the indirect purchasers were likely to benefit from compensation to the direct customer.
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by Philip Bentley, Wilko van Weert and Philipp Werner
Up until September 18, 2006, maritime transport services were exempt from the EU competition rules in respect of liner conferences. In addition, cabotage and international tramp vessel services were exempt from the enforcement powers in competition matters. These exemptions were abolished on September 18, 2006, subject to a two year transitional period. Maritime transport services then became subject to sector-specific guidelines that are applicable until September 26, 2013, when they will be superseded by the general, non-sector-specific guidelines.
To read the full article, click here.
by Philip Bentley and Philipp Werner
A judgment of the EU General Court in March 2011, upheld on appeal by the Court of Justice of the European Union (CJEU) on January 22, 2013, is potentially good news for parent companies. Where both a parent company and its subsidiary bring separate court challenges against a cartel fine for which they were held jointly and severally liable, the parent company should benefit from any reduction in fine that the court grants to the subsidiary, provided that the challenges brought by the two companies have the “same object”.
In light of these judgments, it would appear that a parent company’s argument should be similar to that adopted by its subsidiary when challenging a fine imposed jointly and severally on both of them. At the same time, the parent company may wish to contest the fact that it was held jointly and severally liable for the subsidiary’s infringement. This would require the parent to demonstrate that it did not exercise a “decisive influence” over the subsidiary’s commercial policy. Reconciling this latter argument with a challenge to the subsidiary’s fine is, however, likely to require skilful drafting of the parent company’s pleadings.
To read the full article, click here.
by Philip Bentley, QC and Philipp Werner
Joaquín Almunia, the European Union’s Commissioner for Competition, has announced that the European Commission hopes to settle around half of its outstanding cartel cases in 2013. It’s time to review the European Union’s settlement procedure.
To read the full article, click here.
by Martina Maier, Andrea Hamilton, David Heny and Philipp Werner
Tomra judgment: EU’s top court rules that actual effects do not need to be examined in exclusionary practice cases involving dominant firms.
To read the full article, click here.
by Philip Bentley and Philipp Werner
On 29 November 2012, the EU General Court (GC) issued a provisional order suspending the European Commission’s decision to communicate to the High Court of England and Wales a copy of Alstom’s reply to the statement of objections in the gas insulated switchgear cartel. The statement of objections, which contained confidential business secrets, had been requested by the High Court in the context of a follow-on damages claim brought by National Grid, one of Alstom’s former customers.
For defendants, it will be reassuring to know that the GC will not allow the Commission to disclose contentious documents until the matter has been debated fully in court. Plaintiffs will be relieved that they are not completely shut out of court on the issue of access to Commission documents that might support their claim for damages. The matter does have to be debated at length, however, and the result is likely to be a set of nuanced and finely balanced rules that turn on the circumstances of each individual case.
This order is, therefore, another piece in the increasingly complex puzzle of procedures on access to documents in the European Union for the purposes of follow-on damages actions. There are also wider issues surrounding document protection that must be considered carefully.
To read the full White Paper, click here.
by Philipp Werner and Wilko van Weert
On 13 December 2012, the Court of Justice of the European Union (CJEU) held that national competition authorities (NCAs) can apply European competition rules, and fine companies for an infringement of EU rules, even in cases where the European Commission considers that Article 101(1) Treaty on the functioning of the European Union (TFEU) is not applicable.
To read the full article, click here.
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