Key antitrust developments have marked the first quarter of 2014, some of which may directly impact the way that a company does business. Developments of notable concern include:
- How the European Commission claims jurisdiction over cartel conduct that takes place (partly or entirely) outside the EU
- The liability of trade associations and/or consultancies that provide services to conspirators
- Parental liability due to antitrust violations by subsidiaries or joint ventures
- How market operators may engage in technology licensing activities
Below is an analysis of these developments.
In the area of EU cartel enforcement, the European Courts in Luxembourg have issued three important judgments:
- LCD panel marks a significant step towards the amplification of the European Commission’s extra-territorial jurisdiction to apply EU competition law to cartel conduct. It endorses the stance that jurisdiction may be asserted when, before reaching the EU territory, the cartelized products are incorporated into final products by a legal entity which is part of the group of companies that has participated in the conspiracy.
- AC-Treuhand confirms that not only market operators, but also consultants and trade associations that actively and deliberately aid or facilitate cartel conduct may be held liable for cartel violations.
- EnBW confirms that the Transparency Regulation does not allow for unfettered discovery of the European Commission’s cartel files by civil claimants in follow-on damages actions.
Restrictions of Competition by Object
The European Commission increasingly categorizes alleged infringements of competition law as “restrictions by object,” i.e. restrictions that are by their nature so injurious to competition that their negative effects do not need to be examined. To a certain extent, this dangerous trend shifts the burden of proof from the European Commission to defendant companies, aggravating the latter’s position in antitrust investigations. In our article, we look at where the boundaries of restrictions by object were set prior to the Advocate General’s opinion in Groupement des Cartes Bancaires.
Corporate Group Liability and Compliance
A number of recent judicial decisions in the UK and the EU are changing the long-standing concept of separate corporate personality and the principle of limited liability for members of corporate groups. In this context, a top-down approach to compliance becomes an issue of primary importance. Our European Competition Law Review article takes an in-depth and critical look at this evolution.
Antitrust Enforcement in the Petroleum Sector
We scope out the new and heightened enforcement efforts on the petroleum sector by the US Department of Justice’s Antitrust Division and the Federal Trade Commission in our Oil & Gas Journal article.
We gave our views on the need for the European Commission to provide more guidance on the use of commitments in EU antitrust proceedings as a non-governmental advisor at the Unilateral Conduct Working Group of the International Competition Network.
Revision of the Technology Transfer Block Exemption Regulation (TTBER)
The European Commission has revised the TTBER and accompanying Guidelines that will govern technology licensing in the EU for the next 12 years. While the revision marks no revolution, it signals in a number of ways a bias in favor of licensees, which may have a chilling effect on the licensors’ incentives to license in Europe.