On 16 April 2019, England’s Court of Appeal ruled that the Competition Appeals Tribunal (the “CAT”) had erred in rejecting certification of former financial ombudsman Walter Merricks’ class action against MasterCard, for £14 billion. As a result, the CAT will now reconsider whether to certify the class. The decision has lowered the bar that will need to be cleared in this and future class actions in order to achieve certification. Louise Freeman, Harry Denlegh-Maxwell and Julia Steinhardt consider the decision and its implications for the UK’s fledgling class action regime in this Covington Alert.
The European Commission publishes report on EU loan syndication and its impact on competition in credit markets
On 5 April 2019, the European Commission (“EC”) published a report – prepared by Europe Economics at the request of DG COMP – on EU loan syndication and its impact on competition in credit markets (the “Report”).
The Report describes the functioning of the syndicated loan business and seeks to assess whether there are potential competition concerns with regard to syndicated loans in leveraged buy-outs (“LBOs”), project finance (“PF”) and infrastructure projects (“INFRA”). Syndicated loans are considered to be an important source of finance to the European economy. The EC’s interest in this business is therefore primarily motivated by an assessment of its effectiveness and functioning besides potential competition concerns. Geographically, the Report focuses on France, Germany, the Netherlands, Poland, Spain, and the UK. These countries account for approx. 75% of syndicated lending volume in the identified segments in the EU, with Poland making up the smallest share of the group.
Economic successors can be held liable for damages resulting from Article 101 TFEU infringements
On 14 March 2019, the Court of Justice of the European Union (“CJEU”) issued a preliminary ruling in Case C-724/17 Vantaan kaupunki v Skanska Industrial Solutions Oy and Others, holding that the principle of economic continuity applies in actions for damages resulting from infringements of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). The judgment followed a preliminary reference from the Supreme Court of Finland, submitted in the course of proceedings regarding an asphalt cartel in the Finnish market. Continue Reading
German court clarifies questions on FRAND offers for licensing of standard essential patents
In the last months, the Landgericht Düsseldorf (District Court of Düsseldorf – LG Düsseldorf) has handed down 10 judgments dealing with standard essential patents (SEPs) in the smart phone sector. While not all judgments have been published yet, cases 4a O 17/17 and 4b O 4/17 answered a number of fundamental questions as to how German courts will apply the CJEU’s case law for FRAND licensing of SEPs by patent pools. Continue Reading
EU Court Confirms the Annulment of the European Commission’s Decision Prohibiting the UPS/TNT Transaction
On 16 January 2019, the European Court of Justice (“ECJ”) rejected the European Commission’s (“Commission”) appeal in Commission v. UPS. The judgment followed Advocate General Kokott’s Opinion of July 2018, and upholds the 2017 judgment of the General Court (“GC”) annulling on procedural grounds the Commission’s decision prohibiting the acquisition of TNT by UPS.
An aid scheme or not? The GC annuls the Commission’s decision on Belgium’s system of excess profit tax rulings
On 14 February 2019, the General Court (“GC”) annulled the European Commission’s (“Commission”) decision of 11 January 2016 declaring Belgium’s system of excess profit rulings as an aid scheme incompatible with the Internal Market. The Commission had ordered the Belgian authorities to recover around € 700 million from at least 35 companies that had benefited from the excess profit exemption through tax rulings. The GC considered that the excess profit exemption was not a “scheme” within the meaning of State aid law and that the Commission should have considered each tax ruling individually. Whilst the judgment does not address the question of “selectivity”, which is central to most tax ruling cases, it establishes that tax rulings, which are given with some latitude and discretion by the tax authorities, cannot be reviewed collectively as a “scheme”, but must be assessed individually.
“No Deal” Brexit and the UK State Aid Regime (Part 2)
On 21 January 2019, the UK government published its draft statutory instrument on State aid, outlining the changes to the UK State aid regime in the event of a no deal Brexit. Its publication comes at critical moment for the UK as it considers the potential options for leaving the European Union: (i) leave with a deal; (ii) leave without a deal; or (iii) postpone the date of leaving.
The State Aid (EU Exit) Regulations 2019 (“State Aid No Deal Regulation”), which still requires the approval of the UK Parliament, does not make material changes to the substance of the EU State aid framework, but rather transposes the regime into UK domestic law, establishing the UK Competition and Markets Authority (“CMA”) as the UK State aid enforcement authority, thereby replacing DG Comp.
Deal or No Deal Brexit? The Lowdown for Competition Law (Part 1)
Potentially significant changes are just around the corner for the UK competition system, as the country prepares to take the final step of exiting the European Union. In this regard, the UK has three potential options: (i) leave with a deal; (ii) leave without a deal; or (iii) postpone the date of leaving. Should the UK leave the EU with a deal, then its departure shall be governed by the Withdrawal Act ( “WA”), which simply confirms much of the competition framework will remain until December 2020 (the “Transition Period”). At the time of writing, the WA still awaits Parliamentary approval. In the case that the UK leaves without a deal in place, then from 29 March 2019 competition law will be governed by the statutory instrument titled The Competition (Amendment etc.) (EU Exit) Regulations 2019 (“No Deal Regulation”).
A very brief summary of the key differences between the WA and the No Deal Regulation in terms of the effect on the UK competition framework is as follows:
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Application of the private investor test in State aid cases: lessons from the EDF saga
On 13 December 2018, the European Court of Justice (“ECJ”) rejected an appeal by Electricité de France (“EDF”) against a General Court (“GC”) judgment confirming a Commission decision ordering France to recover EUR 1.37 billion in State aid from EDF (Case C-221/18 P EDF v Commission). The ECJ judgment confirms that the aid, which had been granted back in 1997, had to be recovered. The EDF saga provides several lessons on how the private investor test should be applied by the Commission and on the burden of proof imposed on the Member State under this test.
EU Court’s Partial Annulment of the Decision in the Servier Reverse Payment Patent Settlement Case
On 12 December 2018, the EU General Court (GC) delivered its judgment in the Servier reverse payment patent settlement case, the second GC judgment to date on reverse payment patent settlements (after the 2016 Lundbeck judgment).
The GC confirmed that such agreements fall within the scope of Article 101 of the Treaty on the Functioning of the European Union (TFEU) and may constitute a restriction of competition by object. The GC also confirmed that, to the extent that an infringement is a restriction by object, it is not necessary to analyse its effects. Finally, the GC annulled the fine imposed by the European Commission (Commission) because the Commission failed to establish that the market was limited to the perindopril molecule.
