On 22 September 2020, the Grand Chamber of the Court of Justice dismissed Austria's appeal against the General Court's Judgment endorsing Commission Decision (EU) 2015/658 ('the Judgment'). The Judgment was the first opportunity for the Court to rule whether the nuclear energy sector is subject to State aid rules and indicate when aid for the construction of a nuclear power plant can be declared compatible by the European Commission pursuant to Art. 107(3)(c) TFEU. As such, the Judgment provides guidance on the applicability of EU law in the nuclear energy sector as well as the interpretation of Art. 107(3)(c) TFEU.
By its Judgment of 16 December 2020, the General Court ('GC') confirms the European Commission's ('Commission') Decision finding that the International Skating Union's ('ISU') governance rules violate competition law. The Judgment backs the Commission's conclusion that the ISU's rules banning athletes for participation in unauthorized events organized by third parties constitute a by object infringement of Article 101 TFEU. The Judgment explicitly recognizes that authorization rules for events organized by third parties – and an associated ban for participation in unauthorized events – may be legal if they "pursue legitimate objectives" and their restrictive effects on competition are "inherent" to the pursuit of those objectives and "proportional". However, in casu the GC ruled that the sanction to ban included in the ISU's eligibility rules was not "proportional". The GC's Judgment can potentially further reshape the European sports landscape as sport governing bodies will have to rethink the way in which they deal with concurring organizers.
Advocate General Saugmandsgaard Øe recommends the European Court of Justice to (i) rule that the test included in the Bronner Judgment – including the indispensability requirement – should only be applied in specific circumstances (i.e., in case of 'refusals to make available'), and (ii) reject the introduction of the concept of 'implicit refusals to grant access' (or similar terms such as 'constructive refusals to grant access'). In this article, we set out the reasoning adopted by the AG to substantiate his recommendation as well as our analysis of the AG's Opinion.
With its judgment the European Court of Justice ('ECJ') confirms its previous case law indicating that the criterium to determine whether a competition law violation is covered by a contractual jurisdiction clause is the existence of a 'contractual link', adding that this is the case even when such clause does not explicitly refer to disputes relating to liability resulting from a competition law infringement. Interesting is that that the ECJ further clarifies that such 'contractual link' is more likely to be present in case of a violation of article 102 TFEU rather than in case of a violation of article 101 TFEU. Unfortunately, the ECJ's reasoning for making this distinction is limited to stating that "the abuse of a dominant position can materialise in contractual relations that an undertaking in a dominant position establishes and by means of contractual terms".
On 21 September 2017 Advocate General Saugmandsgaard Øe ('AG') issued his opinion in F. Hoffmann-La Roche vs Autorità Garante della Concurrenza e del Mercato (AGCM). In his opinion the AG provides guidance to the Court of Justice of the European Union ('CJEU') on the various questions raised by the Italian Consiglio di Stato ('CdS'). The CdS raised these questions in the context of an appeal against a decision of the Italian Competition Authority ('ICA'), which found that Roche and Novartis concluded an illegal market sharing agreement in the market for eye condition drugs. These questions related to market definition in the pharma sector; the impact of a licensing agreement on the application of Article 101; and the treatment under Article 101 of a concerted practice involving dissemination of potentially misleading information regarding the safety and efficacy of competing products.
The EU Court of Justice's Judgment provides additional clarification on the effects of the extension of the duration of an existing aid measure. The EU Court of Justice - annulling a Judgment of the EU General Court - rules that the extension of the duration of existing aid measure by a national court must be qualified as an alteration of that aid. Consequently, the aid should be treated as new aid subject to the obligation of prior notification. In the scenario, where a national court plans to extend the duration of an existing aid, the national court thus has the obligation to notify the measures it plans to adopt to the European Commission.
International sport governing bodies and competition law - up to a 'ban of banning' for participation in unauthorised events organized by rival governing bodies. European Commission ready to set an example with the International Skaters Union? After opening a formal investigation into the International Skating Union's ('ISU') eligibility rules in October 2015, the Commission sends a Statement of Objections to the ISU. The Decision that probably will follow can reshape the way in which sport governing bodies have to deal with concurring organisers and could reshape the European sport landscape.
The Belgian Competition Authority (BCA) imposed a fine of 5.489.000 euros on Belgium's largest yeast producer for resale price maintenance and abuse of dominant position on the fresh baker's yeast market.
In a preliminary reference judgment in the Maxima Latvija case, the Court of Justice of the EU (CJEU) has ruled that commercial lease agreements including a clause conferring on the anchor tenant the right to approve lease agreements that the property owner may conclude with third parties do not restrict competition 'by object'. Consequently, a full analysis of the economic effects of the agreement in question is necessary to establish whether it impedes competition. The CJEU sets out the criteria to be applied to examine the competition impact of the agreement.
From 2013 onward the Nationale Lotterij ('NL') extended its gambling services to sports betting under the name Scooore!. NL distributes Scooore! via physical channels, such as press shops (offline) and digital channels (online). Soon after the launch of Scooore!, Stanleybet et al. lodged a complaint with the Belgian Competition Authority ('BCA') with regard to NL's actions during the launch of Scooore! . In two decisions - rendered on the same day - the BCA dismissed most of the complaints, except two (regarding the cross-use of customers' data and a survey concerning its competitors; see infra). NL settled for 1,190,000 EUR. This was the BCA's first application of the Belgian settlement procedure for an abuse of dominance, a procedure that does not exist on EU level.
Publications Advocate General Bobek provides an analytical framework to assess the appropriateness of 'by object' qualifications while clarifying and consolidating the case-law on the dichotomy between 'by object' and 'by effect' restrictions (Budapest Bank) publication dateDec 2019 publication descriptionConcurrences publication descriptionOn 5 September 2019, Advocate General Bobek delivered his Opinion in the Budapest Bank case following a request for a preliminary ruling from the Hungarian Supreme Court. AG Bobek advised on several matters such as the existence of an obligation for National Competition Authorities to expressly indicate which type of collusion they condemn and whether the facilitating, accepting and implementing of an agreement amounts to a concerted practice. However, this Opinion is particularly interesting because of the clarification it brings to the analytical framework to assess whether a practice could be considered a 'by object' restriction. Other author Daphné Van der Eycken See publication Advocate General Bobek provides an analytical framework to assess the appropriateness of 'by object' qualifications while clarifying and consolidating the case-law on the dichotomy between 'by object' and 'by effect' restrictions (Budapest Bank)See publication The EU General Court clarifies the burden of proof that has to be met by the Commission to demonstrate the existence of an advantage in the context of tax rulings (Starbucks) publication dateDec 2019 publication descriptionConcurrences publication descriptionOn 24 September 2019, the General Court rendered its first two Judgments assessing under which circumstances EU State aid rules can curtail Member States' sovereignty to adopt individual tax rulings. In the Starbucks Judgment, the GC ruled in favour of Starbucks since the European Commission failed to prove the existence of an advantage within the meaning of article 107(1) TFEU. The Judgment provides useful guidance in relation to the burden of proof the Commission has to meet to demonstrate if and when an advantage is conferred by an individual tax ruling.
On 5 September 2019, Advocate General Bobek delivered his Opinion in the Budapest Bank case following a request for a preliminary ruling from the Hungarian Supreme Court. AG Bobek advised on several matters such as the existence of an obligation for National Competition Authorities to expressly indicate which type of collusion they condemn and whether the facilitating, accepting and implementing of an agreement amounts to a concerted practice. However, this Opinion is particularly interesting because of the clarification it brings to the analytical framework to assess whether a practice could be considered a 'by object' restriction.
