C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide was the CJEU’s first judgment on the application of the Brussels I Regulation (44/2001) to competition damages claims. The case fell to be decided in the context of the EU’s various new measures to encourage private enforcement. The Advocate General was not convinced that this policy focus could be reflected in Brussels I – he considered that the Regulation was “not fully geared towards ensuring effective private implementation of the Union’s competition law” (at [8]). However, the CJEU embraced the challenge, and provided an interpretation of Brussels I that will do much to encourage private enforcement. Continue reading
Tag Archives: CJEU
Jurisdiction in competition damages actions: a first word from the CJEU
Filed under Agreements, Conflicts, Damages
MasterCard miffed as CJEU dismisses appeal
Yesterday’s CJEU judgment in the MasterCard case is a major defeat for a company which faces a huge number of private damages actions from retailers. The judgment also examines some interesting legal points, including in particular relating to the use of “counterfactuals” in competition cases. Continue reading
Filed under Agreements
A family affair: parental liability for joint ventures
It is trite law that a parent company will be liable for antitrust infringements committed by a subsidiary where the parent exercises “decisive influence” over the conduct of the subsidiary. Earlier this year the Court of Justice of the European Union (“CJEU”) illustrated just how difficult it will be for a company to rebut the presumption of “decisive influence” in the context of a wholly-owned subsidiary (see Kieron Beal’s post here). In two decisions published on Thursday last week, the CJEU pushed the boundaries of parental liability even further, holding that parent companies may be liable for infringements committed by their joint venture companies.
This further affirmation that antitrust liability truly is a “family affair” is likely to have significant and far-reaching implications for the shareholders of such joint ventures. Continue reading
Filed under Abuse, Agreements, Penalties
Anticompetitive behaviour by professional regulators – Wouters naturalised
The ECJ’s judgment in Case C-309/99 Wouters – that the Dutch legal regulator was an association of undertakings for the purposes of competition law, but that its prohibition on partnerships between lawyers and accountants nevertheless fell outside Article 101(1) having regard to its context and objectives – was a controversial one.
To some it suggested the emergence in European competition law of a “rule of reason”. Professor Whish preferred to treat it as an example of a standalone doctrine of “regulatory ancillarity” that enabled the courts to overlook the incidentally anticompetitive effects of primarily regulatory measures. Whatever the explanation, it was clear that the ECJ had introduced a doctrine which cut across the express wording of Article 101(1) and allowed measures of certain types to benefit from an unwritten exemption. It was unclear whether that doctrine was a new beginning or an evolutionary dead-end. Continue reading
A Bitter Pill: AstraZeneca in the CJEU
The Court of Justice of the European Union (CJEU)’s much anticipated early Christmas present for generic producers has arrived in the form of its judgment in the AstraZeneca case (Case C-457/10 P AstraZeneca AB and AstraZeneca plc v European Commission, 6 December 2012). The decision upheld that of the General Court and the Opinion of Advocate General Mazák, and suggests that the pharmaceutical industry may soon be faced with emboldened competition authorities.
At issue was the Commission’s finding of abuse of dominance (under Article 102 TFEU) for two abuses of the patent system by AstraZeneca (AZ). Firstly, the Commission found that AZ had made “misleading representations” to national patent offices in several Member States which enabled it to extend patent protection of one of its headline gastrointestinal treatments longer than should have been possible. Secondly, the selective deregistration of an older form of the drug had deprived generic producers of the simplified procedure for obtaining a marketing authorisation for their products under Article 4(3)(8)(a)(iii) of Directive 65/65. Continue reading
Filed under Abuse, Pharmaceuticals
Competition Bulletin 