On 4 September 2014, the Court of Justice of the European Union (CJEU) confirmed that the maximum fine of 10 per cent of turnover imposed on the infringing subsidiary of a non-infringing parent company should be calculated on the basis of the turnover of that subsidiary, and not the parent company, if and to the extent that the infringement occurred during the period prior to the acquisition of the subsidiary by the parent company. In 2007, the European Commission issued a decision fining the participants in a cartel operating on the market for zips and other fasteners. Stocko Fasteners participated in the cartel as an independent company from 1991 until 1997, when it was acquired by the YKK Group and renamed YKK Stocko Fasteners. It continued to participate in the cartel until 2001. YKK Stocko Fasteners was fined €19.25 million for its participation in the cartel from 1991 to 1997, calculated on the basis of the YKK Group’s turnover. The YKK Group...
German Court Rejects National Competition Authority Liability for Damages After Unlawful Prohibition of a Merger
The Higher Regional Court in Düsseldorf yesterday dismissed an action for damages of €1.1 billion brought by GN Store Nord against the German Federal Cartel Office. The judgment sheds some light on the possibility for companies to claim damages in the context of an unlawful prohibition of a proposed merger. Click here to read the full article.
CJEU Confirms Prior State Aid Cannot be Taken into Account by Public Authority To Justify Further Subsidies as Market Behaviour
In its recent judgment in Land Burgenland (Joined Cases C-214/12 P, C-215/12 P and C-223/12 P) the Court of Justice of the European Union has confirmed that State aid granted to an undertaking in the past must not be taken into account in the context of the Market Economy Operator Principle to justify further subsidies, even if the prior aid was declared compatible with State aid rules. Public authorities and potential buyers will have to take this into account when privatising or buying publicly owned companies. To read the full article, click here.
by Philipp Werner and Aiste Slezeviciute On 18 June 2013, the Court of Justice of the European Union (CJEU) held that a company that infringed EU competition rules will not escape a fine even if it can claim that it relied on advice given by a legal adviser on the compatibility of its behaviour with national competition rules (Case C-681/11 Bundeswettbewerbsbehörde, Bundeskartellanwalt v Schenker & Co. and Others). In the same ruling, the CJEU also held that relying on the correctness of a decision taken by a national competition authority (NCA) does not protect a company from being found guilty of an infringement of competition law and fined. To read the full article, click here.
Joint and Several Liability For Antitrust Fines: Parent Company Can Benefit From a Reduction in Its Subsidiary’s Fine
by Philip Bentley and Philipp Werner A judgment of the EU General Court in March 2011, upheld on appeal by the Court of Justice of the European Union (CJEU) on January 22, 2013, is potentially good news for parent companies. Where both a parent company and its subsidiary bring separate court challenges against a cartel fine for which they were held jointly and severally liable, the parent company should benefit from any reduction in fine that the court grants to the subsidiary, provided that the challenges brought by the two companies have the “same object”. In light of these judgments, it would appear that a parent company’s argument should be similar to that adopted by its subsidiary when challenging a fine imposed jointly and severally on both of them. At the same time, the parent company may wish to contest the fact that it was held jointly and severally liable for the subsidiary’s infringement. ...
National Competition Authorities in Europe are Not Bound by The European Commission de Minimis Notice
by Philipp Werner and Wilko van Weert On 13 December 2012, the Court of Justice of the European Union (CJEU) held that national competition authorities (NCAs) can apply European competition rules, and fine companies for an infringement of EU rules, even in cases where the European Commission considers that Article 101(1) Treaty on the functioning of the European Union (TFEU) is not applicable. To read the full article, click here.
EU’s Top Competition Court Rules that Companies Seeking Damages May Have Access to Leniency Statements
by Martina Maier, Philipp Werner, Andrea Hamilton and David Henry A recent decision by the Court of Justice of the European Union may make it easier for prospective claimants to obtain at least those leniency statements and related materials that are submitted to the national competition authorities of the EU Member States. Companies doing business in the European Union are urged strongly to follow developments in this area and factor the risk of disclosure into the decision of whether or not to apply for leniency. To read the full article, click here.