1. Rotterdam District Court annuls NMa Cartel Decision: NMa did not prove that the alleged conspirators were competitors
The Rotterdam District Court annulled two decisions of the Dutch Competition Authority (NMa) relating to alleged cartels (LJN: BW1335, LJN: BW1327). The judgments are noteworthy because the Court ruled that the NMa failed to demonstrate that the companies involved, both active in the Dutch healthcare market, were in practice able to compete with each other. In those circumstances there was no sufficient basis for the NMa to conclude that the market-division and non-compete arrangements were capable of restricting competition. The conclusion of the Court is very sector-specific and relates to the Dutch healthcare and cure market which is in transition to more of a "demand-based" system. The relevance of this precedent for other cases is therefore limited. However, the judgment confirms that the Dutch administrative appeal courts carefully review all aspects of NMa decisions.
This case relates to a number of agreements and other explicit arrangements between companies that are active in the provision of healthcare services. In the context of reorganisations and de-mergers the companies involved had documented the respective intentions to focus on certain healthcare service and geographic areas. The NMa qualified these arrangements as agreements having the object to restrict competition. It had reviewed the specific economic and legal context in which the arrangements were made and concluded that they were "capable of removing uncertainties" with respect to the conduct of each other's intended commercial conduct. The Court ruled that the NMa had not established that the companies would be able to compete. It held that in that situation a violation of the Dutch cartel prohibition (Article 6 of the Dutch Competition Act) cannot be established. The Court emphasised that the NMa would need to demonstrate in each individual case that the competition between the alleged cartelists was realistically possible in the absence of the alleged cartel arrangements. A mere reference to the theoretical possibility of competition does not suffice for these purposes.
The Court annulled the Decision but has invited the NMa to adopt a new and improved decision within a prescribed period (of 12 weeks). The decision to refer the case back to the NMa would seem to go against the statutory instruction to administrative law judges to decide on the level of the fine themselves if they annul an administrative law decision imposing a sanction.
2. ECJ and EFTA Court judgments on the abuse of dominance: confirmation and refinement of existing case law
The European Court of Justice ("ECJ") and the Court of Justice of the European Free Trade Association ("EFTA Court") handed down judgments in three cases on the abuse of a dominant position. The conclusion on the basis of these judgments is that it continues to be difficult to determine beforehand what behaviour will be considered as competition on the merits and what will be considered as abuse of a dominant position. All three judgments focus on the question of whether the behaviour has exclusionary effects, i.e. whether access to the market for competitors is foreclosed. However, at the same time the Courts repeat that actual foreclosure is not a prerequisite for a finding of abuse. Rebates and bonuses inducing buyers to buy almost exclusively from the dominant company continue to be "per se" prohibited it seems, irrespective of the market coverage of the commercial offer and irrespective of actual market foreclosure. We will discuss these cases in some more detail below.
Tomra: no need to establish actual foreclosure of the market when finding abuse
In its judgment of 19 April 2012 the ECJ dismissed the appeal brought by Tomra against the judgment of the General Court (C-549/10 P Tomra Systems and Others v Commission). This confirms existing European Union ("EU") case law on the abuse of a dominant position. However, the Commission has meanwhile pledged to focus on cases that are likely to give rise to actual negative effects on competition.
Central to these appeal proceedings was a Commission Decision of 2006 which found that Tomra had abused its dominant position. Tomra was considered to be dominant in the relevant market (with a market share of more than 70%).
The Commission found that Tomra had entered into numerous exclusive agreements with customers. They were either explicitly exclusive or the terms and conditions of the agreements (rebates and bonuses) were such as to render them de facto exclusive. According to the Commission Tomra's discount and bonus systems tied customers to it. In particular, rebate schemes based on individual sales targets for specific customers had the tendency to induce purchases exclusively from Tomra.
Tomra appealed against the 2006 Commission Decision but the General Court subsequently dismissed its appeal in its judgment of September 2010. The ECJ confirms its previous case law as well as the General Court's judgment following Tomra's further appeal.
In doing so the ECJ dismissed the argument that "market foreclosure" - the alleged result of Tomra's abuse - was in any case not absolute, since the exclusive agreements covered only around 40% of the relevant market. So 60% of the total demand remained open for competition, in spite of the alleged exclusive arrangements. In response to this argument the ECJ held that competitors of a dominant company should have "the opportunity to benefit from whatever degree of competition is possible on the market and competitors should be able to compete on the merits for the entire market and not just for a part of it." This would seem to confirm that the ECJ's position that companies with a dominant position abuse that position if they enter into any de facto exclusive agreement with customers. However, there are also signs in the Tomra case that the ECJ did take into consideration that Tomra did actually cover a significant share of the total market (around 40%) and that this was the reason why the behaviour was a form of abuse. In that ruling, the behaviour of a dominant company which only covers an insignificant share of the relevant market does not constitute an abuse because it is not capable of significantly foreclosing access to the market for competitors.
The ECJ's explicit statement in Tomra that the Commission was not required to undertake an analysis of the actual effects of Tomra’s behaviour indicates that the ECJ continues to uphold a broad notion of abuse (based on the form of the behaviour). In order to establish abuse, it continues to be sufficient for the Commission to show that the conduct at issue is capable of having a negative effect on competition in the market. In the Tomra case, the ECJ held that the Commission could have established abuse without there being a need for the Commission to examine whether Tomra was selling below its costs of production.
Meanwhile the Commission has adopted (in 2009) a policy in which the effects of the behaviour are more central. But that policy was not applicable to the review of the 2006 Decision. Still, in future cases the Commission will focus on cases that are likely to have negative effects on competition, as set out in its 2009 Enforcement Priorities Policy.
Posten Norge and Post Danmark
On 18 April 2012 the EFTA Court ruled on an application of Posten Norge to annul a decision of the EFTA Surveillance Authority finding that there was an abuse of a dominant position by the Norwegian incumbent for postal services (E-15/10 Posten Norge AS v EFTA Surveillance Authority). In a judgment of 27 March 2012 the ECJ answered questions of a Danish court on the abuse by Post Danmark established by the Danish Competition Authority (C-209/10 Post Danmark A/S v Konkurrencerådet).
The Posten Norge case resembles the Tomra case and deals with exclusive agreements between Posten Norge and retailers (supermarkets, petrol stations). Posten Norge used the supermarket outlets for delivering parcels sent by businesses to consumers (B2C delivery). Access to these retail outlets was considered to be the key to success in the Norwegian B2C parcel delivery market.
On the procedural front, the EFTA Court confirmed that its review of the decision of the competition authority's decision is not limited to examining whether a "manifest error" was made. Where a sanction is imposed, the EFTA Court fully reviews the decision notwithstanding the assessment of the complex legal and economic aspects inherent in a competition authority's decision.
Similarly as in Tomra, the competition authority had relied on the potential for the conduct to limit competition but then went on to illustrate the actual negative foreclosure effects. Comparable to what the ECJ did in Tomra, the EFTA Court emphasised that the actual foreclosure effects need not be established for a finding of abuse. In fact the EFTA Court considered it to be irrelevant whether an "as efficient competitor" of Posten Norge could have competed effectively regardless of the existing agreements. In addition, the degree of possible foreclosure was irrelevant (similar to Tomra) because even a limited degree of foreclosure was liable to restrict the limited competition which still existed in the market.
Nonetheless the focus on the potential of conduct of a dominant company to restrict competition (in Tomra and Posten Norge), the ECJ – in Post Danmark – laid emphasis on the fact that companies with a dominant position can still fiercely compete on the merits. The ECJ ruled that "not every exclusionary effect is necessarily detrimental to competition". Competition on the merits, it held, may "by definition lead to departure from the market or the marginalisation of competitors that are less efficient." The Court also ruled that discriminatory pricing by a dominant company is not in itself sufficient to find a form of "exclusionary abuse". It then went on to confirm that pricing below average total costs but above average incremental costs is not of itself a form of ("exclusionary") abuse. This ruling is in line with existing case law on pricing abuses of dominant companies.
3. Dutch Industry and Trade Appeals Tribunal orders NMa to amend decisions for bid-rigging gardeners: previous fines for bid-rigging no specific aggravating factor for gardeners
On 24 April 2012 the Industry and Trade Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb) published its judgment (LJN: BW3671) regarding a fine imposed by the NMa for bid-rigging between gardeners. The CBb found that the NMa wrongfully decided to take the turnover generated over a period of three years as the basis for the calculation of the fine. The CBb furthermore ruled that the NMa's decision to increase the fine by 30% for aggravating circumstances breached the principle of legal certainty. It follows from the judgment that only circumstances that relate to the infringing undertakings themselves may be considered as aggravating circumstances. The fact that the NMa has imposed several fines for bid-rigging on other undertakings may therefore not be a reason to increase the fine on the gardeners.
In its decision the NMa fined eight gardeners for their participation in a bid-rigging scheme concerning a tender for gardening services in the municipality of Maastricht. The infringement consisted of a meeting in February 2004 preceding the tender. During this meeting the gardeners partitioned the market in Maastricht into five separate areas in which they would not compete with each other. After the first round of the tender-proceedings, the municipality decided to end the tender and to commence negotiations with the lowest bidders for each separate area. Initially, the tender concerned the provision of gardening services for a period of one year (2004). During the individual negotiations however the municipality decided to extend the duration of the contract to three years (2004-2006).
According to the fining guidelines of the NMa in case of bid-rigging the relevant turnover to determine the fine for each of the infringing companies consists of the turnover that could be generated on the basis of the offer that has been successful in the tender-proceedings. On this basis the NMa took into account the relevant turnover for three years. However, the CBb ruled no sufficient link existed between the meeting in February 2004 and the turnover that the gardeners could have obtained from the contract with the municipality in 2005 and 2006. The CBb reasoned that the gardeners could not have been aware of the municipality's later decision to extend the duration of the contract to three years. In view hereof the CBb ordered the NMa to amend its decision accordingly.
The NMa had furthermore in its decision increased the fine by 30% for aggravating circumstances. These circumstances concerned (i) the fact that the European Commission had already imposed fines for bid-rigging in the Dutch construction sector in 1992, (ii) the revelations in 2001 of a nationwide construction fraud for which several fines had been imposed and (iii) the great political unrest in 2004 when it was revealed that bid-rigging still occurred on a regular basis. However, the CBb ruled that an increase of the fine by 30% constitutes a violation of the principle of legal certainty since the NMa's own fining guidelines only refer to aggravating circumstances that relate to the position and the conduct of the infringer(s), such as being a ringleader or a repeat-offender. The gardeners could therefore not have foreseen that the NMa would increase the fines by 30%.
The CBb ordered the NMa to adopt a new and improved decision within a prescribed period (of 6 weeks). The judgment once again demonstrates that the CBb does not refrain from critically reviewing all details of a penalty decision of the NMa.
4. Amsterdam Court stays an antitrust damage case on the basis of Masterfoods-doctrine
The Amsterdam District Court ruled that the proceedings in the case of Equilib vs. KLM should be stayed, until the pending appeals against the European Commission's Decision 39.258 of 9 November 2009 (air freight) (the “Decision”) have fully run their course (LJN: BV8444).
In 2009, Equilib, a vehicle set up by the litigation funder Claim Funding International, brought a civil damage case (a "follow-on" case) against KLM, Air France and Martinair in the Netherlands. Equilib's damage claims are based on the Decision, in which the European Commission held that eleven air freight carriers had participated in an infringement of European competition law which affected air freight services within the European Economic area. All carriers except one appealed against the Decision, seeking annulment of the Decision. The appeals are currently pending before the General Court in Luxembourg.
In the case before the District Court, the defendant air freight carriers requested that the Court order a stay of the proceedings until it is clear whether the Decision will acquire res judicata-effect. The carriers relied on the Masterfoods decision (C-344/98, 14 December 2000), in which the European Court of Justice held "when the outcome of the dispute before the national court depends on the validity of the Commission decision, it follows from the obligation of sincere cooperation that the national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it considers that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted" (see also Article 16 of Regulation 1/2003).
On 7 March 2012, the Court ruled that the proceedings will be stayed until the air freight carriers' appeals against the Decision have run their full course. In reaching this decision, the Court observed that Equilib's case against the carriers relies heavily on the findings of the European Commission. The various appeals that are currently pending may result in a partial or full annulment of the Decision. A debate on the merits of the case without awaiting the outcome of the appeals would therefore "in fact boil down to an exchange of the parties' presumptions and expectations regarding the outcome of the proceedings before the European courts". Furthermore, the Court noted that in the context of the damage case it will not be sufficient to establish whether the air freight carriers were involved in a competition law infringement. Instead, it will be necessary to assess the specific conduct of the air freight carriers, "the relevant time periods, locations, services and shipments", in order to establish if and to what extent each of the many alleged victims of the infringement has been harmed by this conduct. Equilib did not deny that the outcome of the appeal proceedings before the European courts could influence this assessment. For reasons of "procedural economy", the Court decided to stay the proceedings with immediate effect, until the Decision (or a subsequent judgment by a European court) has acquired res judicata-effect.
5. European Commission adopts new legislation 'package' related to services of general economic interest (SGEI)
In April 2012 the Commission adopted its revised 'de minimis'-regulation for SGEI's. That regulation complements the first three elements of the Commission's revised legislative package pertaining to SGEI's that were adopted in December 2011.
After the seminal judgment in the Altmark case (C-280/00, 24 July 2003), in which the ECJ set out the conditions under which compensation granted to undertakings for discharging public service obligations would not be "state aid", uncertainty existed as to the exact scope and meaning of the so-called 'Altmark conditions'. In response, the Commission adopted a Communication and a Decision setting out its view on the application of the judgment in 2005. The Commission's view has now been updated in the new package. The part of the package adopted in December 2011 consisted of:
- A Communication from the Commission on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest;
- A Commission Decision on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest;
- A Communication from the Commission — European Union framework for State aid in the form of public service compensation.
On 25 April 2012, these documents were supplemented by a Commission Regulation (No 360/2012) on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest
The entire revised package has entered into force.
SGEI's are public service obligations discharged by undertakings which receive compensation for doing so. In short, the newly adopted package provides guidance on the question under what circumstances it can be prevented that such compensation constitutes state aid that may not be compatible with the TFEU.
To that end the Communication on the application of the state aid rules to compensation granted for the provisionof SGEI's clarifies the key concepts underlying SGEI's. The Commission Decision and the Communication relating to the framework for State aid in the form of public service compensation set out in more detail when the compensation granted is compatible with the TFEU. The 'de minimis' Regulation, finally, introduces a threshold below which compensation does not qualify as state aid within the meaning of the TFEU. In brief, this threshold implies that compensation not exceeding (gross) EUR 500,000 over three fiscal years will not be considered state aid.
The revised package provides a summary of the developments in case law and the Commission's thinking on the topic of the state aid regime relating to SGEI's after 2005. For this reason the package is useful when assessing the compatibility of SGEI compensation with the state aid rules. However, the package does not contain clear rules on all relevant aspects of this assessment. Notably no new guidance is provided on the question when a certain activity would qualify as SGEI. This implies that legal uncertainty remains when national courts are asked to apply the state aid rules to SGEI's. This is unfortunate as at the member state level we observe the need of private parties to have the operations of 'public service operators' tested in court, in particular where the SGEI-operators compete with the commercial activities of regular companies. The Commission's hesitance to limit member state discretion when it comes to SGEI's can be understood in the light of the political sensitivity of the topic in European politics. However, wide member state discretion may result in divergence of market conditions within the internal market. Likewise, companies will continue to have difficulty in trying to restore a level playing field on markets where SGEI-operators are active on the commercial market in parallell to their public service activities.
6. Commission publishes internal Antitrust Manual of Procedures
On 30 March 2012 the European Commission published its "Antitrust Manual of Procedures" (ManProc). The document serves as an "internal working tool" for Commission staff when conducting investigations under Article 101 (the cartel prohibition) and Article 102 (the prohibition of abuse of dominance) of the Treaty on the Functioning of the European Union ("TFEU").
The publication of ManProc marks the end of two years of resistance by the Commission to publish this internal guide. Early 2010, a request for publication of the document was submitted to the Commission. The Commission initially refused disclosure of the document indicating that it would reveal its "investigative strategy". Instead it referred to the upcoming publication of its 'Best Practices on the conduct of proceedings concerning Articles 101 and 102 of the TFEU' which would provide sufficient transparency with respect to its way of working in these investigations. After intervention from the Ombudsman however, the Commission decided to partially disclose ManProc. With approximately half of the original version of ManProc published, the remaining pages continue to be the subject of requests for disclosure.
ManProc contains 28 "modules" describing the Commission's way of working in the context of various aspects or stages of the relevant investigations. The modules cover topics such as the cooperation of the Commission with other stakeholders (National Competition Authorities, national courts, third countries), the various procedural phases within the investigations and on various decisions that can be taken in the course of the investigations (prohibition decisions, commitment decisions, interim decisions etc.). Further, ManProc deals with some of the specific powers of the Commission for instance its power to issue requests for information, its power to take statements and its power to impose fines and periodic penalty payments. Finally, the handling of complaints, use of languages and the publication of decisions are discussed.
While not containing any binding substantive or procedural rules (according to an explicit remark made in the introduction), Manproc consolidates previous experiences gained by the Commission when conducting investigations as well as case law. Laying down these experiences and rules sanctioned by the European courts in an internal document for staff clearly has the intention to structure and guide the Commission officials in their actions and decisions in the future. It is mainly for this reason that ManProc may prove valuable for in-house and outside counsel.
By way of example, the section on leniency applications expresses that the Commission in providing its services "should remain neutral in their contacts with undertakings. They do not favour one undertaking over another in terms of treatment under the Leniency Notice." Although the same would follow from general principles of administrative diligence (and - arguably - case law), it is nevertheless a positive sign that such statements are actively communicated to staff. Furthermore, it is not entirely excluded that such phrases may under certain circumstances bear relevance in court proceedings. In addition, the detailed internal steps to be followed by the Commission in the event of receipt of a leniency application provide welcome guidance especially in view of the importance for the parties involved.
It remains to be seen whether the continued efforts to realise additional disclosure will lead to more noteworthy results.
7. Commmission guidance on cartel confidentiality claims
On 19 March 2012 the European Commission published the ""DG Competition informal guidance paper on confidentiality claims". The document mainly deals with the practicalities of claiming the confidentiality of parts of documents sent to the Commission in response to requests for information issued by the Commission, but also touches on some substantive issues.
The confidentiality of submissions sent to the Commission in the course of an investigation can be claimed on the grounds of "business secrets" or "otherwise confidential information". In cartel cases the Commission typically deals with multiple undertakings and large files. It consequently has a particular interest in streamlining its administrative processes as much as possible. The present publication exemplifies this effort. The document contains two main sections: one dealing with practical administrative do's and don'ts for parties submitting confidentiality claims to the Commission; and the other with what is indicated to be "substantive issues".
With respect to substantive issues the document adds little to the existing framework of the "Commission Notice on the rules for access to the Commission file". This latter document sets out the categories of information that may be claimed confidential as well as criteria for the acceptance of requests for confidential treatment. It is however noteworthy that the Commission mentions that it "does not accept confidentiality claims in oral corporate statements made in the framework of the Leniency Notice." This is not an immediate problem in relation to third parties as they do not have access to oral statements. Companies which are the subject of the procedure do however have access to the oral statements. Leniency applicants should therefore ensure that their oral corporate statements do not contain any business secrets since competitors may obtain access to those statements in the context of the procedure that may be initiated or extended on the basis of the leniency application.
In addition it should be noted that the Commission will reject claims pertaining to the names of employees involved in the alleged infringement.
For the remainder the present publication is merely an effort of "administrative streamlining" which is nevertheless desirable as it may increase the expediency within which the Commission deals with these claims and its case load more generally.
8. English High Court grants limited disclosure of leniency materials
On 4 April 2012, the High Court handed down its ruling on the application by National Grid for disclosure of documents that may contain leniency material (National Grid Electricity v ABB, others). The National Grid requested disclosure of these documents for the purpose of its follow-on damages claim resulting from the European Commission's decision on the gas insulated switchgear cartel.
Applying the balancing test set up in the Pfleiderer judgment of the ECJ (C-360/09 Pfeiderer AG v Bundeskartellamt, 14 June 2011), the High Court ordered disclosure of limited parts of the confidential version of the Commission's decision as well as to parts of the replies to the information requests. Both contained information provided to the Commission as part of a leniency application.
The judgment refers in detail to the principles laid down in Pfleiderer and confirms that they apply regardless of whether the materials were produced in the context of a leniency application to a national competition authority or for the Commission's leniency programme. In Pfleiderer, the ECJ ruled that there is no absolute bar against the disclosure of leniency material provided in the context of the Commission's leniency application and it is for national courts, on the basis of their national law, to determine on a case-by-case basis whether access is granted or refused. In doing so, national courts should balance the need to protect the leniency regime with the right to effective compensation of victims in the particular case.
Accordingly, the High Court carried out the balancing exercise prescribed in Pfleiderer and balanced the need to protect the leniency regime against the right to effective compensation of victims of the infringement in the particular case. In doing so, the High Court first rejected the defendants' allegation that leniency applicants had a legitimate expectation that leniency materials would be protected. The High Court then assessed whether the disclosure would place leniency applicants in a worse position than parties who did not cooperate with the Commission. The High Court found that this was not the case. Furthermore, the High Court accepted that there could be some deterrent effect on potential leniency applicants but concluded that this was not sufficiently strong to influence a whistleblower. Subsequently, the High Court considered whether it was proportionate to order some limited disclosure taking into account the difficulties of a claimant to obtain information from other sources and the relevance of the leniency material in this case. With regard to the request for disclosure of the Commission's decision, the High Court also took into account that the findings in the decision were likely to be binding on the High Court. The High Court ordered the disclosure of both selected paragraphs of the decision and replies to the request of information, to those individuals within a pre-agreed confidentiality ring.
This judgment illustrates how English courts apply the Pfleiderer balancing test and what specific factors may be taken into account by a national court in a particular case. The question remains how this balancing exercise will be carried out in other jurisdictions and whether action at the Commission level will take place to secure a coherent application of these principles across the EU.
9. Sellers not liable for "gun-jumping"
In its judgment of 24 February 2012 (LJN: BV6874) the Industry and Trade Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb) found that the statutory duty to notify a concentration to the NMa does not rest upon the seller to a transaction but on the purchaser only.
The NMa has consistently held that the duty to notify concentrations rests on both the purchaser and the seller. In said judgment the CBb however annulled a decision of the NMa imposing a fine of € 22.500,- on a seller to a transaction that had not notified a concentration despite that concentration exceeding the Dutch turnover thresholds. The NMa took the view that both the purchaser and the seller to a transaction are responsible for notifying a concentration. The reason for this is that Article 34 of the Dutch Competition Act ("DCA") provides for a prohibition "to complete a concentration prior to notification of the intent to do so". Since both the seller and the purchaser contribute to the completion of a transaction, they both bear the responsibility for the notification of a concentration that exceeds the Dutch turnover thresholds.
The CBb however did not agree with the NMa. In its judgment, the CBb referred to the definition of a concentration. According to Article 27 of the DCA a concentration involves, in relevant part, the acquisition of control by an undertaking over one or more other undertakings. The CBb ruled that since only the purchaser acquires control, only the purchaser completes a concentration. The effect of this is that the duty to notify a concentration to the NMa rests upon the purchaser only.
The judgment of the CBb brings an end to a long-standing decision practice of the NMa under which several sellers were fined for not notifying a concentration that met the Dutch turnover thresholds. Most of those sellers however decided not to appeal against the fines imposed on them. The judgment also brings the Dutch practice on gun-jumping in line with European merger control regulation under which the duty to notify a concentration also rests upon the purchaser to a transaction only.
The judgment of the CBb involved a situation where a party acquired sole control over an undertaking that was sold by a third party. The judgment does not affect the situation for other, more complex, types of acquisitions where there is a change in the quality of control. For instance, a move from sole to joint control is considered a notifiable concentration as this changes the quality of control of the joint venture. This means that the original shareholder that initially possessed sole control will – together with the new entrant – be required to notify a concentration to the NMa (provided that the thresholds are exceeded).
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- Kroniek van het mededingingsrecht
Rein Wesseling en Floris ten Have, Nederlands Juristenblad ,13-04-2012, afl. 15
- De toepassing van de 'prijssqueeze' in het mededingings- en het telecommunicatierecht, Klem tussen twee visies?
Bas Braeken, Mediaforum 2012-4
- In the section "Buurlanden", The Netherlands (July - December 2011)
Christof Swaak en Manon Bovens, Tijdschrift voor Belgische Mededinging,
jaargang 2012, nummer 1