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Foreword

The second edition of this Competition Law Digest provides readers with a synthesis of EU and national leading antitrust cases from 1990 onwards. It is a unique opportu-nity to draw comparisons between competition case law and policies in the EU and in the Member States, and, in some instances, US antitrust law.

Even though the study cannot be fully comprehensive, the contributions illustrate the status of competition laws’ harmonization process in critical substantive and procedural areas. Harmonization, whether regulated or “spontaneous”, has always been at the forefront of European integration. Spontaneous harmonization is a natural convergence of rules of the Member States following the example of comparable rules in the Euro-pean Union. Notably, this spontaneous harmonization has taken place in the area of competition law. The fifty contributions reveal that while substantive law harmoniza-tion – whether regulated or spontaneous – has been successful in some areas, there are still some other aspects of national competition laws that are not harmonized (for example, procedural rules).

In addition to analyzing the harmonization process, the contributions in this Digest examine certain business sectors – such as sport, transport and IT – and specific topics – unilateral conduct, collective dominance and merger remedies. As noted by some authors, we have witnessed in the past years a revival of the debate on the interplay between intellectual property and competition laws, in particular in the pharmaceutical and IT sectors. The intense investigation activity of competition authorities – both in the EU and in the US –, demonstrates how IP and antitrust are increasingly intertwined in those sectors and what are the current challenges that both authorities and businesses are facing. The IP/antitrust interplay debate will definitely continue to have interesting developmentsfor many years to come.

In the following paragraphs, we briefly describe – based on the contributions’ analysis –some areas of successful harmonization, those in which the lack of harmonization leads to differences and potential conflicts, and the IP/antitrust interplay.

Frédéric Jenny Nicolas Charbit Luisa Di Lauro

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1. Areas of successful harmonization

De minimis is an excellent example of substantive harmonization of national and EU competition laws. As Denis Fosselard — Ashurst — illustrates, competition authorities in the Member States have adopted the de minimis principle remaining faithful to the EU standards set out in the 2001 notice. However, D. Fosselard also notes that, in the time between the Expedia judgment and the adoption of the new de minimis notice, the law and the administrative practice of the Commission and the National Competi-tion Authorities regarding the concept of a de minimis restriction of competition was in a state of flux.

The interpretation of the concept of collective dominance is another area of competi-tion law where National Competition Authorities follow the EU lead. Martin Coleman’s — Norton Rose Fulbright — article focuses in particular on the analysis of the EU concept of collective dominance under Article 102 TFEU, mainly developed in merger control cases. M. Coleman points out that “the number of cases on collective dominance that have come before the national competition authorities and/or courts is limited, but national authorities and courts generally apply the conditions established in the EU doctrine”.

With particular reference to the abuse of dominance in the telecommunication sector, Cani Fernández and Irene Moreno-Tapia — Cuatrecasas Goncalves Pereira — after analyzing over 160 case summaries on European and national decisions before admin-istrative bodies and courts concerning the application of article 102 TFEU, conclude that “save a few exceptions, national competition authorities are aligned with European practice and case law, at least where the basic features and the need to secure effective competition are concerned”. According to the authors, this circumstance suggests that the ECN and the cooperation among National Competition Authorities have probably played a relevant role in that situation, together with the guidance of the European Commission and the authority of the European Court of Justice.

Examples of harmonization can be also found in the merger control area. Alf Henrik and Jochen Burrichter — Hengeler Mueller — recall that an OECD roundtable in 2009 revealed that the failing firm defense constitutes an area of competition law which isquite well harmonized around the world. This also holds true for the EU Member States as many have a rule that corresponds to the three-tier test that refers to the risk of a market exit, the lack of alternative solutions, and anti-competitive effects irrespectively of the proposed merger.

Over the years, the Commission and the National Competition Authorities have also shared the same enforcement objectives. For example, following the 2007 EU Energy Sector Inquiry, the Commission and National Competition Authorities have been particularly active in the enforcement action in the energy sector. John Ratliff and Roberto Grasso – WilmerHale – provide in their contribution an overview of the most important national and European cases regarding unilateral conduct in the energy sector, which usually address traditional foreclosure issues.

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As European competition law continues to grow and as the European Commission continues to innovate, the role of the preliminary reference procedure becomes increasingly central in providing guidance on future principles. Ian Forrester — White & Case — recognizes that the Court has played an important role in the shaping of European competition law through preliminary reference cases (Grundig and Consten, Oscar Bronner, Volvo/Veng, Magill, and IMS to name a few) and that it “has been able to produce judgments that are freestanding, robust, at times damning, and often innovative”.

Finally, the harmonization process is not limited to an EU context, National Competi-tion Authorities around the world may share common interest on particular aspects of antitrust laws as increased business and cultural exchanges have lead to common views on some topics. As Justin Coombs — Compass Lexecon — explains, competition authorities on both sides of the Atlantic have increasing interest in most favored customer provisions (MFCs), which has encompassed both the potential exclusionary effects and the potential collusive effects of MFCs. It is also worth noting that the greater focus on “criminal antitrust” in the EU is due to the influence of US antitrust law, as Keith Jonesand Farin Harrison — Baker & McKenzie — illustrate in their article.

2. Differences and potential conflicts

Even if the harmonization process has involved some important areas of competition law, through “spontaneous” or regulated convergence, there are other areas where harmonization of Member States’ competition laws has not yet been achieved. This may also be one of the side effects of decentralization: antitrust enforcement is increas-ingly led by National Competition Authorities, which apply – and may favor – strictly national (and not homogeneous) procedures and practices over EU ones.

An example of the aforementioned is the case of cartel settlement. As Dirk Arts and Francesca Miotto — Allen & Overy — illustrate in their chapter, some states have transposed the EU cartel settlement regime and others have kept formal or informal national procedures. The result is that a number of formal and informal regimes continue to co-exist in the EU, with significant differences in terms of their scope and/or the benefits they offer.

Interim measures are another procedural area where differences between the EU legal systems are still evident. Claudio Tesauro, Pasquale Leone, Francesco Russo and Giulio Matarazzi — Bonelli Erede Pappalardo — point out that most of the EU Member States’ legal orders provide for the possibility to apply interim measures in antitrust proceedings and, even though they all provide for the same conditions of application, there are still some procedural differences. The authors also note that prior to Regula-tion 1/2003, the importance of interim measures had been widely recognized by the European judges who introduced them on the ground of the “effect utile” principle, acknowledging that such a principle would apply when “indispensable for the effective exercise of its functions and, in particular, for ensuring the effectiveness of any decisions requiring undertakings to bring to an end infringements which it has found to exist”.

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As to legal privilege, Christof Swaak – Stibbe – points out in his paper that there are developments indicating that several EU Member States have chosen to maintain a protection of legal privilege that is different and at times wider in scope than at the EU level. The disparity in protection is inconsistent at best and creates a complicated situation across the EU and amongst its Member States. Notably, this is an area of the law where conflicts also arise between EU and US authorities.

On rebates, Hans Zenger – CRA – observes that, after the recent modernization of enforcement of Article 102 TFEU, some National Competition Authorities have been reluctant to follow the Commission’s lead, perhaps because the old per se doctrine permits prohibiting unilateral conduct without having to undertake an elaborate analysis of facts. Indeed, under the new effects-based approach, the Commission will only intervene against rebates if they were used for anti-competitive purposes (rather than prohibiting all loyalty-inducing price reductions out of hand).

Divergences are not only limited to the EU arena, but also involve substantive differ-ences between the US and the EU laws. Hans W. Friederiszick and Elzbieta Glowicka — E.CA Economics — and Richard Steuer — Mayer Brown — write about resale price maintenance (RPM), which has been the subject of competition law controversy for decades on both sides of the ocean. Until recently in the US, RPM – in its form of a minimum or fixed resale price – was considered illegal per se. In 2007, with thefamous Leegin decision, the US Supreme Court overturned the former legal standard and adopted a rule of reason-based approach. In Europe, only the adoption of the Guidelines on Vertical Restraints in 2010 indicated the EU Commission’s willingness to consider a more flexible approach toward the counterarguments of the parties onthe likely and actual anti-competitive effects or on related efficiencies more openly.

3. Intellectual property and antitrust

As James S. Venit and Athanasia Gavala — Skadden Arps — note, the interplay between intellectual property (IP) and competition law has long been the subject of debate. However, this debate has recently gained momentum in the EU and in the US, with particular focus on the IP-intensive pharmaceutical and IT industries.

Competition authorities in Europe have aggressively prosecuted companies for a wide range of competition infringements. Indeed, over the past ten years, the European Commission and the National Competition Authorities have investigated over one hundred cases in the pharmaceutical sector involving issues from generic entry, price fixing, bid rigging, market sharing, bundling, predatory and excessive pricing, paralleltrade, resale price maintenance, illegal exclusivity and discrimination. Damien Geradin — EDGE — and Michael Clancy — Van Bael & Bellis — provide a thorough overview of those cases in their contribution.

In addition, more than five years ago, DG Comp kicked off the pharmaceutical sectorinquiry; the focus of the inquiry was on patent-related behavior, including the initiation and settlement of patent disputes. DG Comp has subsequently pursued four high-profileinvestigations into such area of the pharmaceutical industry. The first of these investiga-

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tions was eventually concluded in June 2013 when DG Comp handed down its decision in the Lundbeck/Generics case. In the meantime, in the US, multiple antitrust cases involving patent settlement agreements have been litigated in open court and decided upon. The US Supreme Court’s June 2013 decision in Actavis has given industry a road map as to how future patent settlement agreements will be assessed under US antitrust law. Patrick Harrison and Kristina Nordlander — Sidley Austin — provide an overview of latest leading cases on EU/US patent settlement while Abigail Slater — US Federal Trade Commission — focuses on US pay-for-delay settlements.

Turning to the IT merger area, Kyriakos Fountoukakos and Nick Root — Herbert Smith Freehills — note in the contribution that the technology sector has never been under great scrutiny from antitrust regulators. The past two years alone have seen a number of major investigations by regulators around the world into, for example, the distribution of e-books, several aspects of Google’s conduct, and the exploitation by a number of global technology companies of patent portfolios. Because of the inherently fast-moving nature of this sector, these cases often require competition authorities to consider new product and service markets and, therefore, to carry out the difficult taskof predicting how competition will develop in nascent and unfamiliar areas, such as social networking.

* * *

Harmonization and divergence of competition law are part of the successful decen-tralization of EU competition law, which has also led to a growing awareness of the development of competition laws and cases in national jurisdictions. Indeed, the approach of one jurisdiction to a particular aspect of competition law may affect in the future another jurisdiction. Monitoring and comparing different national approaches to similar cases has therefore become crucial for practitioners and academics to under-stand and predict the future direction of competition law at both EU and national level. We trust that the e-Competitions initiative – with its online Bulletin and this Digest – to build a corpus of information on EU national doctrine, legislation and precedent in the EU, US and worldwide, that constitutes a useful tool to better interpret the forthcoming challenges and direction of competition law.

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Dirk Arts Allen & Overy

Sara Ashall Shearman & Sterling

Stefania Bariatti University of Milan

Edward Batchelor Baker & McKenzie

Alf-Henrik Bischke Hengeler Mueller

Jochen Burrichter Hengeler Mueller

Etienne ChassaingJones Day

Michael ClancyVan Bael & Bellis

Martin Coleman Norton Rose Fulbright

Justin Coombs Compass Lexecon

Christopher J. Cormier Cohen Milstein Sellers & Toll

Frederic Depoortere Skadden Arps

Martin André Dittmer Gorrissen Federspiel

Eryk Lucas Dziadykiewicz Gibson, Dunn & Crutcher

Alberto Escudero Baker & McKenzie

Ariel Ezrachi Oxford University

Cani Fernández Cuatrecasas Gonçalves Pereira

Lúcio T. Feteira Nova Law School

Andrés Font Galarza Gibson, Dunn & Crutcher

Ian Forrester White & Case

Denis Fosselard Ashurst

Kyriakos Fountoukakos Herbert Smith Freehills

Hans W. Friederiszick E.CA Economics

Athanasia Gavala Skadden, Arps

Damien GeradinEDGE Legal Thinking

Elzbieta GlowickaE.CA Economics

Stefano GrassaniPavia e Ansaldo

Roberto GrassoWilmerHale

Alejandro Guerrero Perez Gibson, Dunn & Crutcher

Farin Harrison Baker & McKenzie

Patrick Harrison Sidley Austin

Zoltan Hegymegi-Barakonyi Baker & McKenzie

Márton HorányiJádi Németh

Bojana IgnjatovicRBB Economics

Maria IoannidouQueen Mary University

Keith Jones Baker & McKenzie

James A. KeyteSkadden Arps

François-Charles Laprévote Cleary Gottlieb Steen & Hamilton

Pasquale LeoneClifford Chance

Annabelle LepieceCMS DeBacker

Martina Maier Unilever

Peter Malone Accenture

Contributors

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Giulio MatarazziBonelli Erede Pappalardo

Stephen C. Mavroghenis Shearman & Sterling

Katrien MeireCharlton Athletic Football Club

Francesca MiottoAllen & Overy

Samantha MobleyBaker & McKenzie

Luca Montani Baker & McKenzie

Luís D. S. MoraisLuís Silva Morais/Sérgio Gonçalves do Cabo

Dimitris MourkasBaker & McKenzie

Irene Moreno-TapiaCuatrecasas Gonçalves Pereira

Eric Morgan de Rivery Jones Day

Phedon NicolaidesCollege of Europe

Gunnar Niels Oxera

Paul Nihoul Louvain Catholic University

Rainer NitscheE.CA Economics

Kristina NordlanderSidley Austin

Greg Olsen Clifford Chance

Vincent PowerA&L Goodbody

John Ratliff WilmerHale

Douglas RichardsCohen Milstein Sellers & Toll

Stéphane RodriguesUniversity Panthéon Sorbonne

Nick Root Herbert Smith Freehills

Francesco Russo Comin and Partners

Albert Sánchez Graells University of Leicester

Thomas SharpeOne Essex Court

Abigail Slater The Internet Association

Patrick Smith RBB Economics

Ulrich SoltészGleiss Lutz

Richard SteuerMayer Brown

Jules StuyckLiedekerke

Christof SwaakStibbe

Claudio TesauroBonelli Erede Pappalardo

Aleksander Tombinski Clifford Chance

Ingrid VandenborreSkadden Arps

James S. VenitSkadden, Arps

Lars Wiethaus E. CA Economics

Frank WijckmansContrast

Johan Ysewyn Covington & Burling

Hans Zenger CRA

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Table of ContentsEditors’note ...............................................................................................................i

Foreword ................................................................................................................. iii

Contributors .............................................................................................................ix

Table of Cases .......................................................................................................xix

Part I - Competition RulesGeneral IssuesMarket definition ......................................................................................................3Patrick Smith, Bojana Ignjatovic (RBB Economics)

De minimis .............................................................................................................11Denis Fosselard (Ashurst)

Consumer protection ..............................................................................................21Paul Nihoul (Louvain Catholic University)

Art. 267 TFEU preliminary rulings ........................................................................29Ian Forrester (White & Case)

Anticompetitive AgreementsConcerted practices and exchange of information ................................................41Luís D. S. Morais, Lúcio T. Feteira (Luís Silva Morais/Sérgio Gonçalves do Cabo/Nova Law School)

Resale price maintenance in the European Union .................................................51Hans W. Friederiszick, Elzbieta Glowicka (E.CA Economics )

Resale price maintenance in the United States ......................................................59Richard Steuer (Mayer Brown)

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Exclusive distribution .............................................................................................71Frank Wijckmans (Contrast)

Licensing agreements .............................................................................................81James S. Venit, Athanasia Gavala (Skadden Arps)

Unilateral PracticesNotion of dominance ..............................................................................................93Frederic Depoortere, Ingrid Vandenborre (Skadden Arps)

Collective dominance ...........................................................................................101Martin Coleman (Norton Rose Fulbright)

Margin squeeze .....................................................................................................115Lars Wiethaus, Rainer Nitsche (E.CA Economics)

Excessive prices ....................................................................................................131Gunnar Niels (Oxera)

Rebates ..................................................................................................................143Hans Zenger (CRA)

Remedies for unilateral conducts .........................................................................151Samantha Mobley, Dimitris Mourkas (Baker & McKenzie)

Procedure & EnforcementEuropean Convention of Human Rights ..............................................................159Eric Morgan de Rivery, Etienne Chassaing (Jones Day)

Legal privilege ......................................................................................................173Christof Swaak (Stibbe)

Commitment decisions .........................................................................................183Jules Stuyck (Liedekerke)

Interim measures ..................................................................................................195Claudio Tesauro, Pasquale Leone, Francesco Russo, Giulio Matarazzi (Bonelli Erede Pappalardo/Clifford Chance/Comin and Partners)

Leniency ...............................................................................................................205Johan Ysewyn (Covington & Burling), Aleksander Tombinski (Clifford Chance)

Mitigation of the fine ............................................................................................217Thomas Sharpe (One Essex Court)

Cartel settlements .................................................................................................233Dirk Arts, Francesca Miotto (Allen & Overy)

Criminal sanctions ................................................................................................247Keith Jones, Farin Harrison (Baker & McKenzie)

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Private enforcement in the United States .............................................................257Douglas Richards, Christopher J. Cormier (Cohen Milstein Sellers & Toll)

Arbitration and antitrust .......................................................................................269Stefania Bariatti (University of Milan)

MergersFailing firm defence in merger control ................................................................279Alf-Henrik Bischke, Jochen Burrichter (Hengeler Mueller)

Buyer power .........................................................................................................289Ariel Ezrachi, Maria Ioannidou (Oxford University/Queen Mary University)

Merger remedies ...................................................................................................301Stephen C. Mavroghenis, Sara Ashall (Shearman & Sterling)

State AidPrivatisation ..........................................................................................................313Phedon Nicolaides (College of Europe)

Service of general economic interest ...................................................................321Stéphane Rodrigues (University Panthéon Sorbonne)

Public procurement ...............................................................................................331Martin André Dittmer (Gorrissen Federspiel)

Judicial review ......................................................................................................345Martina Maier (Unilever)

Other IssuesMost favored customer clause ..............................................................................353Justin Coombs (Compass Lexecon)

Public procurement ...............................................................................................363Albert Sánchez Graells (University of Leicester)

Part II - Specific SectorsAutomobileAutomobile and competition law .........................................................................381Márton Horányi, Zoltan Hegymegi-Barakonyi (Jádi Németh/Baker & McKenzie)

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EnergyUnilateral conduct in the energy sector ................................................................393John Ratliff, Roberto Grasso (WilmerHale)

Financial & Insurance ServicesFinancial services and competition law ...............................................................447Greg Olsen, Peter Malone (Accenture)

State aid in financial services ...............................................................................459François-Charles Laprévote (Cleary Gottlieb Steen & Hamilton)

Information TechnologiesIT and Mergers .....................................................................................................477Kyriakos Fountoukakos, Nick Root (Herbert Smith Freehills)

e-Commerce and selective distribution ................................................................497Andrés Font Galarza, Eryk Lucas Dziadykiewicz, Alejandro Guerrero Perez (Gibson, Dunn & Crutcher)

HealthAnticompetitive practices in the pharmaceutical sector ......................................511Damien Geradin (Edge Legal Thinking), Michael Clancy (Van Bael & Bellis)

Pay-for-delay settlements in the United States ....................................................523Abigail Slater (The Internet Association)

EU/US patent settlements ....................................................................................535Patrick Harrison, Kristina Nordlander (Sidley Austin)

Postal ServicesState aid in the postal sector .................................................................................543Ulrich Soltész (Gleiss Lutz)

SportsSports and antitrust law in the European Union ..................................................555Alberto Escudero, Edward Batchelor, Luca Montani (Baker & McKenzie), Katrien Meire (Charlton Athletic Football Club)

Sports and antitrust law in the United States .......................................................569James A. Keyte (Skadden Arps)

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TelecommunicationsDominance in the telecommunications sector .....................................................581Cani Fernández, Irene Moreno-Tapia (Cuatrecasas Gonçalves Pereira)

TransportsTransport and access to facilities .........................................................................597Annabelle Lepiece (CMS DeBacker)

Railway transport..................................................................................................609Vincent Power (A&L Goodbody)

Maritime transport ................................................................................................617Stefano Grassani (Pavia e Ansaldo)

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