Follow-On Civil Litigation

Short Reads - Big tech firms, whether entering or already active on payments markets, are under scrutiny. PSD2 has opened up the payments markets to non-bank companies, but this comes with both risks and opportunities. EU regulators are examining anticompetitive risks, for example the possibility of leveraging a strong position in one market into another market. Competition, innovation, privacy and security for financial transactions will all be hot topics as scrutiny increases on providers of payment services.

Short Reads - The Court of Appeal of Arnhem – Leeuwarden recently applied the competition law notion of an 'undertaking' in a civil damages suit between TenneT and an entity belonging to the Alstom group of companies. The Court of Appeal ruled that Cogelex formed a single undertaking with its 48% shareholder Alstom. Cogelex could therefore be held liable under civil law for the competition law infringement of its 48% parent company. The Court of Appeal based its decision on a broad application of the ECJ’s reasoning in its Skanska judgment of 14 March 2019.

Short Reads - Benelux competition authorities have published a joint memorandum on how best to keep up with challenges in fast-moving digital markets. As well as calling on the European Commission to issue an economic study on digital mergers, the memorandum calls for an ex ante intervention tool to fill the gap between interim measures and ex post enforcement. This tool would pre-emptively impose behavioural remedies on digital gatekeepers without first having to establish an actual competition law infringement.

Short Reads - The General Court annulled the EUR 33.6 million fine imposed on banking group HSBC for its participation in the euro interest rates derivatives cartel. Full annulment was granted based on the Commission's failure to provide sufficiently detailed reasoning for the first step of the fine calculation, establishing the value of sales. As the value of sales could not be established in a straightforward way, the Commission used a proxy. When doing so, the Commission needs to properly explain its reasoning to allow the companies fined to understand how it arrived at the proxy. 

Short Reads - The Stibbe Annual Competition Update will take place on 23 January 2020 at our offices in Amsterdam.

Articles - Stibbe’s managing partner Wouter Ghijsels shares his insights on the next generation of lawyers and the future of the legal profession at the occasion of the Leaders Meeting Paris where Belgian business leaders, politicians and inspiring people from the cultural and academic world will discuss this year's central theme "The Next Gen".

Short Reads - The Rotterdam District Court has ordered claimant SECC (a litigation vehicle) to substantiate its claims in proceedings against Kone and ThyssenKrupp regarding the elevator cartel. The Court also ruled that some claims have become time-barred, unless SECC can show that these were timely assigned to SECC and notified to Kone and ThyssenKrupp. The Court rejected several defences of Kone and Thyssenkrupp, including a jurisdictional challenge based on arbitration clauses between the defendants and assignors of claims to SECC.

Short Reads - The Dutch Authority for Consumers and Markets (ACM) needs to cough up a total of EUR 120,000 in moral damages to three real estate traders. The Dutch Trade and Industry Appeal Tribunal (CBb) agreed with the real estate traders that the annulment of the ACM's cartel decisions against them was insufficient compensation for the harm they suffered as a result of the length of the procedure and the press coverage of their cases.