The network of European antitrust regulators, the European Competition Network, has revised its model leniency programme for cartels. Major changes include a broader scope for summary applications when applying for leniency in more than three EU Member States, the application of leniency programmes to cartels with vertical elements, clarifications on the non-disclosure obligation, and unification of the level of protection for oral and written statements by leniency applicants. The changes will take effect once the individual competition authorities have implemented them in their individual leniency programmes.
On 14 November, the EU General Court ruled in related cases T-135/09 and T-140/09 that the European Commission had been too broad when setting out its mandate for the carrying out of dawn raids at the offices of companies in France and Italy. The Court viewed that the Commission was illegally “fishing” for evidence of possible further anti-competitive activity. In essence, this means that the Commission must confine itself to a specific, targeted sub category when authorising dawn raids.
On November 6, 2012, the Court of Justice of the European Union (CJEU) ruled that the European Commission was entitled to represent the European Union in an action for damages before national courts. The CJEU ruled that the Charter of Fundamental Rights of the European Union did not prevent the Commission from taking an action for damages against the cartel participants for harm suffered by the European Union as a result of anti-competitive behavior that the Commission had already sanctioned by rendering an infringement decision. Companies should therefore bear in mind that the Commission is no longer just the investigator, prosecutor and judge of a cartel, but also a potential damages claimant.
UK antitrust regulator issues revised antitrust guidance. The OFT introduces increased transparency, more active participation and greater checks and balances into antitrust proceedings.
The European Commission eyes sector inquiries as a new tool in European State aid law. In European antitrust law sector inquiries are already successfully employed to detect cartelist activities. This could allow the European Commission to proactively investigate whole sectors for illegal subsidies and to subsequently open new cases.
On September 20 , 2012, European Commission officials concluded a Memorandum of Understanding (MoU) with Chinese officials in respect of antitrust law. Signed by the Directorate General for Competition and two of China’s antitrust law enforcement authorities, the National Development and Reform Commission (NDRC) and the State Administration of Industry and Commerce (SAIC), the MoU strengthens the relationship between the two jurisdictions’ respective antitrust authorities.
There has been a spate of antitrust complaints to the European Commission and other antitrust authorities of late, regarding the licensing of "essential patents". In the first months of 2012 alone, the European Commission received at least five new antitrust complaints over the potentially abusive use of technology patents. These complaints are being used increasingly by alleged patent infringers as another line of defense against actions brought by patent holders in the United States and in Europe. The use of complaints in this way has vital, strategic implications for the owners of technology patent portfolios and it is a tactic that should be taken into account by plaintiffs and defendants in the on-going “patent wars”.
Recent developments in the global legal landscape point to the inevitable conclusion that having an effective antitrust compliance program in place is now more important than ever.
There is a general presumption that the grant of public access to documents relating to merger control proceedings would undermine the purpose of those proceedings. The Commission does not therefore have to carry out an individual examination of each document before deciding to refuse access under EU transparency legislation.
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