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EU Competition Law |
Legal professional privilege: in-house counsel remains unprotected - Akzo v Commission
Geoffroy van de Walle de Ghelcke, Brussels
The European Court of Justice has ruled that in-house counsel do not benefit from legal professional privilege (LPP) under EU competition law, in case C-550/07 P Akzo v Commission. Only external counsel, not bound by an employment contract with their client, can benefit from LPP.
AstraZeneca: European General Court upholds findings of abuse of dominant position by misusing the SPC and marketing authorising systems
Richard Eccles, London
The European General Court issued its judgment on 1 July 2010 on AstraZeneca's appeal (Case T-321/05) against the European Commission's decision adopted on 15 June 2005 fining AstraZeneca ("AZ") EUR 60 million for abuse of dominant position through misuse of the patent system to obtain supplementary protection certificates (SPCs) and misuse of the pharmaceutical regulatory system by selective withdrawal of certain marketing authorisations. The Court reduced the total fines from EUR 60 million to EUR 52.5 million due to the fact that the Commission had failed to prove certain aspects related to the second abuse. However the Court confirmed the overall gravity of the infringements, pointing out that the abuses had lasted several years and related to the best selling medicinal product in the world at the time, AZ's blockbuster drug Losec.
Clarification by the European Court of Justice of the acceptable scope of commitments by undertakings to close EC anti-trust investigations under Article 9 of Regulation 1/2003
Richard Eccles, London
The European Court of Justice ("ECJ") has given an important judgment in Case C-441/07P, Commission v Alrosa Company Limited clarifying that commitments decisions under Article 9 of Regulation 1/2003 can be wider in scope than the remedies which the European Commission could impose in an infringement decision following a full length investigation. It gave judgment upholding the appeal by the European Commission against a judgment of the European General Court (formerly the European Court of First Instance) finding infringements of Articles 101 and 102 TFEU concerning the purchasing of rough diamonds by De Beers, thereby reinstating the Commission's decision to accept commitments.
European Commission consults on new rules for Horizontal Agreements
Chelsea Roche, London
As the current block exemption regulations ("BERs") applicable to research and development and specialisation agreements will expire on 31 December 2010, the Commission has proposed and consulted on revised and replacement regulations, BERs for research and development and specialisation agreements, and also draft new Guidelines for the assessment of co-operation agreements between competitors, so-called 'horizontal agreements'.
European Commission report on the monitoring of Patent Settlement Agreements
Richard Eccles, London
The European Commission has published its first annual report on the monitoring of patent settlement agreements, covering the period mid 2008 to the end of 2009, comparing data from this period with the period 2000-2007. The report confirms the European Commission's pharmaceutical sector enquiry report of July 2009, that patent settlement agreements between originator and generic companies can raise competition law issues in particular where there is a value transfer from the originator, patent owning company to the generic company in return for delayed market entry or where limits are placed on market entry on the part of the generic company. The report also assesses settlement agreements which limit generic entry without a value transfer, as potentially raising competition law issues.
Competition in the energy sector
Jeremy Robinson, London
Since the European Commission published its final report on the energy sector competition inquiry in January 2007, several energy companies have been targeted for investigation into suspected infringements of Article 102 of the Treaty on the Functioning of the European Union ("TFEU"). We discuss four recent cases below. These cases illustrate the Commission's readiness to accept binding commitments from the energy companies to conclude investigations under Article 9 of Regulation 1/2003 instead of proceeding to full scale infringement decisions.
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National Competition Law
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France |
Google practices on the online advertising market under review by the French Competition Authority
Claire Hellich-Praquin, Paris
On 30 June 2010, the French Competition Authority ("FCA") issued an interim measures decision ordering Google to modify its policy for its online advertising service AdWords. The complaint against Google was lodged before the FCA by a start-up company named Navx, which specialises in the supply of online radar databases (for example, the localisation of fixed and mobile speed cameras) for GPS navigation devices and smartphones. Navx exclusively relies on the online sale of its databases and 85% of Navx's communication expenses are related to online advertising via AdWords. AdWords provides advertising space based on a bidding process for the purchase of key words by advertisers.
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Germany |
Influencing a dominant company's conduct can be abusive regardless of own market position
Dr Jrg Witting and Fabian von Busse, Dsseldorf
The Hamburg District Court has prevented German publisher Bauer from using the label "Top 100 Titel" on its journals and from urging dominant press wholesalers to prompt their retailers to display "Top 100 Titel" journals in their shops in a favourable manner. The court found that Bauer was liable under German competition law as a so-called "disturber" for encouraging dominant press wholesalers to abuse their market position vis--vis press retailers. The Court's decision is remarkable insofar as the principle of "disturber liability" stemming from trade mark law and unfair competition legislation was fully transferred to competition law for the first time. As a consequence, the scope of the discrimination ban could be substantially extended and would also comprise non-dominant companies provided that these companies are responsible for an infringement committed by a dominant undertaking.
Federal Cartel Office specifies merger rules for the media sector
Dr Jrg Witting and Fabian von Busse, Dsseldorf
In dissolution proceedings against news agencies ddp Deutscher Depeschendienst and Associated Press Germany, the Federal Cartel Office has taken the view that the German media specific merger rules are not limited to newspaper/magazine publishers and radio/TV broadcasters but also apply to news agencies.
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The Netherlands |
Dutch Competition Authority imposes fines on Dutch media company Wegener and five of its executives totalling EUR 20 million
Janneke Kohlen, The Hague
The Dutch Competition Authority ("NMa") imposed fines on the Dutch media company Koninklijke Wegener N.V. ("Wegener") and five of its executives, totaling more than EUR 20 million. The NMa imposed the fines for non-compliance with remedies imposed in 2000 in connection with the acquisition of publishing company VNU Dagbladen by Wegener. Wegener's fine totals EUR 19 million and because of the active role five of Wegener's executives played, they have been personally fined a total of EUR 1.3 million. In addition, the NMa ordered Wegener to comply with the remedies imposed in 2000 within a year.
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Sweden |
Update of legislation authorising the Swedish Competition Authority to request information
Henrik Nilsson and Annie Kabala, Stockholm
The Swedish government has on 12 May 2010 tabled before the Riksdag a bill for a new Act on the Obligation to Provide Information Regarding Market and Competition Conditions. The Act is proposed to come into force on 1 January 2011. The new Act will update the Swedish Competition Authority's powers to obtain information outside the framework of a specific investigation, for example for the purposes of sector enquiries.
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UK |
RBS agrees to pay £28.5 million fine for disclosing pricing information to a competitor
Richard Eccles, London
The Royal Bank of Scotland has agreed to pay a fine of £28.59m after admitting breaches of competition law by disclosing pricing information to its rival Barclays Bank between October 2007 and March 2008. The agreement follows an OFT investigation where it was found that individuals in RBS's Professional Practices Coverage Team had unilaterally disclosed generic and specific confidential future pricing information about loan products to their counterparts at Barclays Bank, and that Barclays had taken the information into account when setting their own prices. RBS also supplied specific confidential future pricing information relating to two proposed loan facilities.
Court of Appeal ruling on the requirement of dishonesty in a criminal cartel offence
Jeremy Robinson, London
On 28 May 2010, the Court of Appeal (CA) handed down a ruling on the interpretation of the requirement of dishonesty in the criminal cartel offence. The issue arose during the preparatory hearings in the price-fixing trial against four British Airways executives, which collapsed in May 2010. The defendants argued that the prosecution had to prove dishonesty both on the part of the defendants and on the part of the Virgin Atlantic executives with whom they allegedly agreed to fix prices. The trial judge had found that it was necessary to prove dishonesty only on the part of the defendants. The CA upheld this finding.
High Court rules that a clause in a confidentiality agreement is anticompetitive
Jeremy Robinson, London
On 14 July 2010, the High Court ruled in Jones v Ricoh UK Limited that a clause in a confidentiality agreement breached Article 101 of the Treaty on the Functioning of the European Union ("TFEU") and was therefore unenforceable. The clause in question was excessively broad in scope for the purposes of a confidentiality agreement, in that it restricted the relevant person from having any contact with a customer or supplier or authority whilst the confidential information remained in the possession of the person or company. The judgment serves as a reminder to businesses to ensure that their confidentiality agreements are justifiable in scope by reference to the actual protection of confidentiality.
Court of Appeal dismisses appeal against High Court cartel damages ruling
Jeremy Robinson, London
On 23 July 2010, the Court of Appeal upheld a judgment of the Commercial Court in the Cooper Tire case, which had declined to stay an action for damages where proceedings based on the same EC cartel decision had also been brought in the Italian courts. The Court of Appeal upheld the Commercial Court's robust ruling against the attempted 'Italian torpedo' by declining to allow jurisdiction on the cartel damages claim to be deferred in England in favour of the Italian courts. The Court of Appeal held that the English court proceedings did not concern exactly the same parties and therefore were not required to be stayed. It also declined to exercise discretion for a stay mainly because the English proceedings were more advanced than those in Italy.
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