Neodyum Miknatis
maderba.com
implant
olabahis
Casino Siteleri
canli poker siteleri meritslot
escort antalya
istanbul escort
sirinevler escort
antalya eskort bayan
brazzers
Short Reads

General Court confirms illegality of non-compete clause in telecoms transaction

General Court confirms illegality of non-compete clause in telecoms transaction

General Court confirms illegality of non-compete clause in telecoms transaction

01.07.2016 NL law

On 28 June 2016, the General Court ("GC") ruled on appeals by Telefónica and Portugal Telecom ("PT") against the decision of the European Commission to impose  fines of EUR 67 million and EUR 12 million respectively. The judgments confirm the findings of the Commission that the non-compete clause agreed upon between the parties amounted to a market sharing agreement with the object of restricting  competition. The GC, however, referred the case back to the Commission as it found that the Commission had erred in calculating the amount of the fine.

 

Telefónica and PT together held the shares in the Brazilian telecom company Vivo Participações through a joint venture company. In 2010, Telefónica and PT concluded a stock purchase agreement by which Telefónica acquired sole control over Vivo. That agreement included a non-compete clause prohibiting the companies from conducting business in the telecommunications sector that "can be deemed to be in competition with the other in the Iberian market", excluding economic activities already performed by the companies.

In its judgements, the GC ruled that the Commission had rightfully concluded that the non-compete clause amounted to a market-sharing agreement with the object of restricting competition. The GC clarified that the non-compete clause did not qualify as an ancillary restraint as the parties were not able to prove that the restriction was necessary for the implementation of the Vivo transaction.

The GC, however, ruled that the Commission had erred in law in calculating the amount of the fine as it had failed to conduct a detailed legal and economic assessment of the sales directly or indirectly relating to the infringement. As the non-compete clause only covered activities in which the parties were actual or potential competitors, the Commission should have excluded sales which were not covered by the clause.

The judgments show that non-compete clauses in the context of a transaction require careful review and confirms that such clauses have to be necessary to the implementation of the transaction to qualify as an ancillary restraint. The judgments also show that once the Commission decides to calculate the fine on the basis of the sales relating to the infringement, it should conduct a detailed analysis before calculating  the correct amount of sales.

This article was published in the Competition Law Newsletter of July 2016. Other articles in this newsletter:

1. Court of Justice dismisses appeals in the Calcium Carbide Cartel
2.
General Court confirms that the financial position of shareholders and the possibility to increase credit facilities are relevant when assessing an inability to pay request
3. District Court of Rotterdam rejects the applicability of arbitration clauses in antitrust damages litigation
4. Update on changes in antitrust damages claims legislation in the Netherlands
5. New maximum fines for competition law infringements in the Netherlands as of 1 July 2016
6. General Court rules that an implicit and unlimited guarantee does not necessarily constitute State aid

Related news

07.01.2021 NL law
Commission evaluates Antitrust Damages Directive: to be continued

Short Reads - On 14 December 2020, the Commission published a report on the implementation of the Antitrust Damages Directive (the Directive). The Commission observes a significant increase in antitrust damages actions since the adoption of the Directive. However, there is insufficient experience with the new Directive to properly evaluate its application. Instead, the Commission provides a concise overview of the implementation of some key aspects of the Directive.

Read more

07.01.2021 NL law
Amsterdam District Court puts a halt to unlimited forum shopping

Short Reads - On 25 November 2020, the Amsterdam District Court (the Court) declined jurisdiction over all non-Dutch defendants (the foreign defendants) in proceedings for compensation of damage based partly on an infringement of Article 101 TFEU. The proceedings were initiated by four public utility companies from the Gulf States (claimants) against both Dutch and foreign defendants.

Read more

07.01.2021 NL law
ACM study calls for regulation of Big Techs on payment market

Short Reads - The ACM’s market study, published on 1 December 2020, provides an overview of recent and upcoming developments concerning the role of Big Tech companies in both online and offline payment markets in the Netherlands. Although Big Tech companies currently have a relatively limited presence in these markets, the ACM expects significant expansion in the near future given these companies’ ability to leverage existing market power on other (platform) markets.

Read more

07.01.2021 NL law
Do the math: ACM publishes strategy on monitoring use algorithms

Short Reads - The ACM worries that the use of algorithms may lead to the creation of cartels, or nudge consumers towards a purchasing decision that is not in their best interest. Therefore, on 10 December 2020, it published a new policy document (in Dutch) setting out what businesses can expect when the ACM checks their algorithms. On the same day, the ACM also launched a trial with online music library Muziekweb to improve the ACM’s knowledge about the categories of data that are likely to be relevant in such investigations. All signs indicate the ACM’s intention to become more active in this area.

Read more

07.01.2021 NL law
(Geo)blockbuster: Canal+ ruling annuls commitment decision

Short Reads - A heads-up for companies seeking to settle in antitrust proceedings: commercially-affected third party complainants are not to be ignored. The Canal+ judgment marks the first time a commitment decision has been successfully challenged since the adoption of Regulation 1/2003. The European Court of Justice annulled the commitment decision on the ground that the Commission failed to take into account the rights of contractual parties affected by the commitments.

Read more