Short Reads

General Court delivers judgments on the scope of dawn raid decisions

The General Court delivers judgments on the scope of dawn raid decisi

General Court delivers judgments on the scope of dawn raid decisions

02.07.2018 NL law

On 20 June 2018, the General Court rendered its judgment in two connected appeals submitted by České dráhy, the Czech Railways Operator, challenging two dawn raid decisions by the European Commission. Based on arguments concerning the scope of the investigation, the Court annulled in part the first dawn raid decision and fully upheld the second dawn raid decision.

The Commission investigated an alleged predatory pricing practice by České dráhy. In the course of this investigation, it issued a dawn raid decision the scope of which was defined as including, but not limited to, predatory pricing behaviour on the Prague - Ostrava route after 2011.

Considering the information available to the Commission at the time when the dawn raid decision was taken, the Court found that the Commission did not have the right to include references to more than predatory pricing in the scope of the dawn raid decision. The Court noted that, when suspecting predatory pricing practices, the Commission's investigation can of course have the suspicion that these practices are part of a possibly wider exclusionary strategy. However, unless the Commission possesses documents pointing towards such a wider strategy, extending the scope of the dawn raid is not justified.

During the first investigation, the Commission seized general documents concerning České dráhy's costs that led the Commission to suspect other anticompetitive practices and to issue a second dawn raid decision. České dráhy argued that these documents were unlawfully seized, as they did not directly concern pricing on the Prague - Ostrava route and were hence outside the scope of the first investigation. The General Court found that the Commission was within its rights to seize the documents, since, even if they were only indirectly linked to the suspected behaviour, the Commission was entitled to seize documents relevant for determining both the direct and the indirect costs on the concerned route.

These decisions give further guidance on the Commission's powers to investigate suspected anticompetitive behaviour via dawn raids.

 

This article was published in the Competition Law Newsletter of July 2018. Other articles in this newsletter:

  1. General market studies are insufficient proof to establish dominance, two Dutch District Courts rule
  2. Excessive pricing findings set aside by UK court in prominent pharma ruling

Team

Related news

02.12.2021 EU law
ECJ: private enforcement in aviation sector also a national court's game

Short Reads - Recently, the ECJ ruled that national courts dealing with private enforcement cases are competent to apply EU competition law to historical behaviour in the aviation sector, regardless of public enforcement by the Commission and national competition authorities, and regardless of whether or not such authorities had authority to pursue public enforcement in the relevant period.

Read more

02.12.2021 NL law
Google Shopping: self-preferencing is a form of abuse of dominance

Short Reads - On 10 November 2021, the General Court (GC) almost entirely dismissed Google’s action against the European Commission’s Google Shopping decision. According to the European Commission (the Commission), Google illegally favoured its own comparison shopping service by displaying it more prominently in its search results than other comparison shopping services (see our July 2017 Newsletter). The Commission found that Google was abusing its dominant position and imposed a EUR 2.42 billion.

Read more

02.12.2021 NL law
Gun jumping: beware, the Commission will take action

Short Reads - The Commission has imposed interim measures on Illumina and GRAIL. These measures include the obligation to run GRAIL by independent management. By adopting interim measures in addition to opening an investigation into whether Illumina and Grail breached the standstill obligation, the Commission has made clear it will not shy away from tough action against gun jumping during an ongoing merger review. 

Read more

02.12.2021 NL law
Back to the future – Commission publishes roadmap for green and digital challenges

Short Reads - The Commission’s Communication “A competition policy fit for new challenges” (link) (the “Communication”) identifies key areas in which competition law and policy can support European efforts in dealing with the challenges of the green and digital transitions. The document covers all areas of competition law (antitrust, merger control, and State aid) and identifies various ways in which new and existing tools can contribute to addressing these challenges.

Read more

02.12.2021 NL law
Dominant firm may refuse to supply retailer after initial delivery

Articles - The Brussels Court of Appeal has held that a dominant producer firm may have valid reasons to refuse further supplies to a retailer, despite its dominance and despite previous deliveries. The Court of Appeal stressed the freedom for any company, including dominant firms, to choose their trading partners, in particular when there are valid and objective non-discriminatory reasons to refuse further direct supplies and when the retailer has alternative sources of supply.

Read more