Competition Disputes

Short Reads - Despite the ongoing COVID-19 pandemic, the European Commission is already looking ahead to set its consumer protection priorities for the next five years. Key points in the New Consumer Agenda include equipping consumers with better information on product sustainability, digital transformation, effective enforcement, safety concerning products ‘made in China’ and protecting particularly vulnerable consumers such as children, older people or those with disabilities. The New Consumer Agenda is a follow-up to the 2018 New Deal for Consumers.

Short Reads - Companies beware: the turnover of a joint venture buying a target is not necessarily decisive for determining whether the EU merger thresholds are met. The General Court fully upheld the Commission’s 2017 decision prohibiting the joint acquisition of Cemex’s Hungarian and Croatian subsidiaries by cement companies HeidelbergCement and Schwen Zement through their full-function joint venture (JV).

Articles - Philippe Campolini, Sophie Van Besien, Ignace Vernimme and Peter Wytinck authored the Belgian Chapter of the Pharmaceutical Intellectual Property and Competition Law Review.   

Short Reads - The results of the European Commission’s evaluation of the Vertical Block Exemption Regulation (VBER) call for more clarity and convergence in the interpretation of certain (online) vertical restrictions. However, the Dutch competition authority (the ACM) and the Dutch courts cannot wait for the European Commission’s revised VBER rules to deal with such sales restrictions.

Short Reads - The essential facilities doctrine imposes on holders of indispensable facilities a duty to deal with their competitors. While a railway track may seem essential, a track’s removal does not fall under this doctrine if carried out by a monopolist manager of a state-developed facility bearing a statutory obligation to grant third parties access to its facilities. According to the General Court, the Commission was therefore correct to use the general framework for abuse of a dominant position to assess the Lithuanian railway operator’s removal of a railway track.

Short Reads - The Commission should think twice before conducting a dawn raid. The General Court partially annulled three Commission decisions ordering dawn raids at the premises of French supermarkets for a lack of sufficiently strong evidence with regard to one of the suspected anticompetitive practices. In addition, the General Court clarified that interviews held with suppliers prior to the issuing of a dawn raid decision can be used as evidence, even when these interviews have not been recorded.

Short Reads - The District Court Noord-Nederland recently allowed the trustees in bankruptcy of Northsea shrimp trading company Heiploeg to recover part of a EUR 27 million cartel fine from a former director. Internationally, the question whether companies can recover competition law fines through civil claims against individuals involved in the competition law infringement, is controversial. The court held, however, that the director’s personal involvement in the infringement amounted to ‘serious mismanagement’, triggering personal liability to pay damages.

Short Reads - Enforcement of competition rules in relation to indirect information exchange seems to be catching on; while the European Commission only flagged the risks in its consumer electronics cases, the ACM has taken up the challenge and imposed fines. Four cigarettes producers were fined a total of EUR 82 million for allegedly indirectly exchanging information on the future retail prices of cigarettes through their wholesalers and other buyers. According to the ACM, the manufacturers knowingly accepted this information and used it to determine their own pricing strategies.