On 6 October 2021, a preliminary ruling of the Court of Justice of the European Union (“CJEU”) in Sumal confirmed that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law. This note briefly analyzes the judgment and the implications thereof.

Continue Reading The CJEU’s Sumal Judgment: Parental Liability is “Going Down”

On 3 June 2021, the European Court of Justice (“ECJ”) in case C-563/19 P Recylex v Commission dismissed Recylex’ appeal both to adjust its ranking in the leniency process and to receive partial immunity for parts of its participation in the Car Battery Recycling cartel.  The judgment, on appeal against the judgment of the General Court (“GC”) of 23 May 2019, provides guidance to companies considering a leniency application when there is already an ongoing European Commission (“Commission”) investigation.

Applying for leniency enables cartel participants to obtain reduced or annulled fines.  The 2006 Commission Notice on Immunity from fines and reduction of fines in cartel cases  (“Leniency Notice”) sets out the key principles:

  • the first company providing the Commission with sufficient evidence for an investigation will be granted full immunity;
  • subsequent applicants can receive fine reductions of 30-50%, 20-30% or 20% depending on the timing of their submission; and
  • companies can receive partial immunity for providing the Commission with details expanding the scope of the infringement.


Continue Reading ECJ provides guidance on key cartel questions: the partial immunity concept and rankings for leniency applications

Introduction

The wide understanding of the notion of “undertaking” affords the European Commission (“Commission”) broad discretion when identifying the entities liable for competition law infringements, enabling it to attribute liability to all companies that constitute a single economic unit, such that a parent company can be liable for the wrongdoings of its subsidiary. The Commission also relies on the principle of economic continuity to establish liability when corporate groups are reconstructed.

With the increase of private competition law enforcement, the question arises whether individuals may rely on these concepts when establishing liability in private lawsuits. The recent Sumal and Skanska cases confirm that EU Courts are in favour of extending the doctrine of “undertaking” to private damages claims. In his opinion of 15 April 2021 in Sumal, Advocate General (“AG”) Pitruzzella  proposes that a national court can order a subsidiary to pay compensation for the harm caused by anticompetitive conduct of its parent company. In March, the CJEU decided, in Skanska, that the principle of economic continuity applies in the context of follow-on damages claims.
Continue Reading EU Courts extend the doctrine of “undertaking” to private claims for damages

On 18 March 2021, the Court of Justice of the European Union (“CJEU”) largely dismissed the appeal by Pometon against the General Court’s (“GC”) judgment, which previously partially dismissed Pometon’s appeal against the European Commission (“Commission”) steel abrasives cartel decision.
Continue Reading The CJEU accepts the principle of staggered hybrid cartel settlements in Pometon

On 27 January 2021, the Court of Justice of the European Union (“CJEU”) confirmed in Goldman Sachs Group Inc. v European Commission that financial investors can be liable where they hold 100% voting rights over an indirect entity that participated in a cartel, even though the investor does not own 100% of the share capital during the relevant infringement period. Crucially, the judgment highlights the importance of conducting careful due diligence and ensuring competition law compliance for all investors, including financial investors, during the acquisition process.
Continue Reading Goldman Sachs v Commission: The CJEU further expands the parental liability doctrine — private equity businesses and investors tread carefully

Introduction

In its preliminary ruling of 14 January 2021, the Court of Justice of the European Union (“CJEU”) clarified that the duration of an infringement in the case of bid rigging ends once the essential characteristics of the public tender are determined – which in practice likely means at the signing date of the contract between the winner of the bid (who participated in the bid rigging) and the contracting authority. As such, this decision sets clear time-limits to competition authorities’ enforcement powers when prosecuting bid-rigging cartels. The CJEU provided this guidance in response to a preliminary question from the Supreme Administrative Court of Finland.
Continue Reading The CJEU provides guidance on the end date in case of a bid-rigging cartel

We recently presented to DG COMP the findings of the immunity and leniency survey 2020, which was conducted jointly by Covington and the Brussels School of Competition. The survey ran from December 2019 to March 2020 and asked competition law practitioners, enforcers and in-house counsels to share their observations on the perceived decline in immunity

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Friday 29 May 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:

  • Today’s US update:
    • The FTC’s Director of the Bureau of Competition published a blog post on the failing firm defense. Skip to relevant section.
  • Today’s EU updates:


Continue Reading COVID 19 – US and EU Competition Law Implications (29 May 2020)

With the assistance of Covington, Unilever submitted the attached paper to the European Commission and a number of National Competition Authorities.  It suggests a possible framework for the application of EU competition law to sustainability collaborations between competitors.

The paper reflects insights from experts across Unilever and puts forward examples of existing or possible co-operations,

The Covington US and EU Competition/Antitrust teams will be updating you regularly, through the Covington Competition blog, on the competition/antitrust law implications – both procedural and substantive – of the COVID-19 crisis in the US and the EU.  This is our update for Tuesday 12 May 2020. Today’s new updates as compared to the previous update are highlighted – these are the headlines:


Continue Reading COVID 19 – US and EU Competition Law Implications (12 May 2020)