Jurisprudence – Judicial Competition Training

16 November, 2021

Advocate General’s Mr. ATHANASIOS RANTOS opinion in Case C-267/20 Volvo and DAF Trucks. AG Application ratione temporis of Directive 2014/104. Opinions: 1. Determining which provisions of the directive are substantive or procedural must be assessed in the light of EU law and not in the light of national law. 2. Limitation period is a matter of substantive law. 3. Five-year limitation period provided for in Directive 2014/104 does not apply to an action brought after its transposition concerning previous facts and penalties. 4. Directive’s presumption that cartel infringements cause harm, is substantive. 5. Directive’s provisions concerning the courts’ power to assess the harm caused are procedural. 6. Dies a quo of the limitation period begins to run from the date of publication of the summary of the Commission decision in the Official Journal of the European Union. (JIRP).

Remember that Advocates General function is propose to the Court a not binding legal solution to the cases for which they are responsible. The Advocate General […]

20 October, 2021

Judgement of the Court (First Chamber) of October 6th, 2021 Scandlines Danmark Aps. and Scandlines Deutschland Gmbh V. Commission, in Joined Cases C 174/19 P And C 175/19 P. Article 107(1) TFEU does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects. The fact that a Member State assigns a public service subject to a legal monopoly to a public undertaking does not, in certain circumstances, entail a distortion of competition. An advantage granted to the operator of an infrastructure subject to a legal monopoly cannot, in such circumstances, distort competition. It is necessary, for such a distortion to be able to be excluded in such circumstances, that the legal monopoly not only excludes competition ‘on’ the market, but also ‘for’ the market, in that it excludes any possible competition to become the exclusive provider of the service in question. For the purpose of assessing the effect on competition of the measures granted to a company there is need to take account of the activities of which that undertaking is itself specifically and actually in charge. (CRM).

The case concerns the financing of the project for the Fehmarn Belt link between Denmark and Germany. The project, signed between Denmark and Germany, consists on […]

11 October, 2021

Judgement of the Court of Justice (Grand Chamber) of October 06, 2021 in the Judgment in Case C-882/19 Sumal (ECLI:EU:C:2021:800). The victim of an infringement of EU competition law committed by a parent company may seek compensation from that company’s subsidiary for the resulting loss. To do so, it must prove that the two companies constituted an economic unit at the time of the infringement. The determination of the entity which is required to provide compensation for damage caused by an infringement of Article 101 TFEU is directly governed by EU law. The right for any person to seek compensation for a harm strengthens the working of the EU competition rules, since it discourages agreements or practices, frequently covert, which are liable to restrict or distort competition, by contributing to the maintenance of effective competition in the European Union. Actions for damages for infringement of EU Competition rules (private enforcement) are an integral part of the system for enforcement of those rules, which are intended to punish anticompetitive behaviour on the part of undertakings and to deter them from engaging in such conduct. The concept of ‘undertaking’, within the meaning of Article 101 TFEU, which constitutes an autonomous concept of EU law, cannot have a different scope with regard to the imposition of fines by the Commission under Article 23(2) of Regulation No 1/2003 as compared to actions for damages for infringement of EU competition rules (Confirming Skanska). All the members of an economic unit at the moment of the infringement of EU Competition law – attending the economic activity in question – are liable for infraction. A legal entity which is not designated in the decision as having committed the infringement of competition law may nevertheless be held liable on that basis due to conduct amounting to an infringement committed by another legal entity, where those two entities both form part of the same economic unit and thus constitute an undertaking which is the perpetrator of the infringement. The economic unit of which it is constituted must be identified having regard to the subject matter of the agreement at issue. The aggravating factor of repeated infringement may be applied to a parent company for previous infringement of the subsidiary constituting a single economic unit with the parent company in the second infraction. There is nothing to prevent, in principle, a victim of an anticompetitive practice from bringing an action for damages against one of the legal entities which make up an economic unit and thus the undertaking which, by infringing Article 101(1) TFEU, caused the harm suffered by that victim. The liability of the subsidiary for conducts of the parent company in case of the existence of a relevant economic unit cannot however be invoked unless victim proves the links uniting both companies as well as the specific link between the economic activity of that subsidiary company and the subject matter of the infringement for which the parent company has been held responsible. The victim should in principle establish that the anticompetitive agreement concluded by the parent company, for which it has been punished, concerns the same products as those marketed by the subsidiary. The principle of personal responsibility does not preclude the possibility that a finding of such an infringement in the Decision should be definitive with regard to a subsidiary company since it is for the economic unit which constitutes the undertaking that has committed the infringement to answer for it. Inapplicability of the administrative procedural guaranties for the defendant in an infringement proceeding to the defendant in a damage compensation proceeding before a national court. The possibility, for the national court concerned, of making a finding of the subsidiary’s liability for the harm caused is not precluded merely because the Commission has not adopted any decision or that the decision in which it found that there was an infringement did not impose an administrative penalty on that company. If the referring court considered that it was not possible for it to uphold an interpretation of Article 71(2) of the Law on the protection of competition that was consistent with the interpretation of Article 101(1) TFEU set out in paragraph 67 of this judgment, it would be required to disregard that national provision and to apply directly Article 101(1) TFEU to the dispute in the main proceedings.(JIRP)

Mercedes Benz Trucks España is a subsidiary company in the Daimler group, the parent company of which is Daimler. Between 1997 and 1999, Sumal acquired two […]

4 October, 2021

Judgement of the Court of Justice (Fourth Chamber) of September 02, 2021 NeXovation Inc. v Commission, in the Case C-665/19 P (ECLI:EU:C:2021:666). State aid. Obligation to state reasons. Doubts about the compatibility of one measure with the internal market. Potential competitors are Interested party. The doubts within the meaning of Article 4 of Regulation No 659/1999 about the non-discriminatory nature of a national tender process, in so far as one concurrent had received preferential treatment oblige the Commission to open the formal investigation procedure to initiate the procedure referred to in Article 108(2) TFEU and prohibits the Commission adopt a decision not to raise objections. (JIRP)

The Nürburgring complex (‘the Nürburgring’), located in the Land of Rhineland-Palatinate (Germany), consists of a motor-car race track (‘the Nürburgring race track’), a leisure park, hotels […]

27 September, 2021

Judgement of the Court of Justice (Fourth Chamber)of September 02, 2021 Ja zum Nürburgring v Commission, in the Case C-647/19 P (ECLI:EU:C:2021:666). State aid. Interested party. The status of interested party doesn’t presuppose the existence of a competitive relationship.(JIRP)

20 September, 2021

Judgement of the Court of Justice (Fourth Chamber) of September 16, 2021 Commission v Belgium and Magnetrol International, in the Case C-337/19 P (ECLI:EU:C:2021:741). Concepts of “aid scheme”, “act”, “further implementing measures”, “General and abstract” definition of beneficiaries and “Systematic approach”. Fiscal autonomy of the Member States. The term “Act” in Article 1(d) of Regulation 2015/1589 includes a systematic contra legem application by the tax authorities of that Member State. To decide about the need or not of “further implementing measures” it must be determined whether the grant of individual aid is conditional on the adoption of such measures or whether, on the contrary, that grant may be made on the basis of that act alone. The contra legem practice of the tax authorities, in the case, to grant to the beneficiary the excess profit exemption was granted without there being any need to adopt further implementing measures. (JIRP)

CONTEXT: By its appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of […]

13 September, 2021

Judgment of the General Court (Tenth Chamber, Extended Composition) of 14 July 2021 Ryanair DAC and Laudamotion GmbH v European Commission in the Case T-677/20 – Ryanair and Laudamotion v Commission (Austrian Airlines; Covid-19) (JIRP)

CONTEXT: Austrian Airlines AG (‘AUA’) is a company which is part of the Lufthansa group. On 23 June 2020, the Republic of Austria notified the European […]

6 September, 2021

Judgment of the General Court (Tenth Chamber, Extended Composition) of 9th June 2021 in Case T‑665/20, Ryan Air DAC v European Commission ECLI:EU:T:2021:344 (JIRP).

When the formal investigation procedure about a State Aid is not initiated by the Commission, interested parties, who could have submitted comments during that stage, are […]

2 August, 2021

Judgment of the Court (Third Chamber) of 25 March 2021. Case C-152/19 P.Deutsche Telekom AG v European Commission. ECLI:EU:C:2021:238. Decisive influence and absence of decisional autonomy as alternatives to impute parent liability. Facts demonstrating that the parent company was in a position to exercise decisive influence over subsidiary can be taken into account, in the light of or in conjunction with other facts relating to that situation, as indications contributing to a finding of an actual exercise of such influence. These facts can conform a part of a body of consistent evidence relating to actual and decisive influence of the parent company over its subsidiary. Decisive influence and absence of decisional autonomy as alternatives to impute parent liability. Rights of defence. (JIRP)

Judgment of the Court (Third Chamber) of 25 March 2021. Case C-152/19 P.Deutsche Telekom AG v European Commission. ECLI:EU:C:2021:238. Multilingual versions at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019CJ0152 Context: Deutsche Telekom […]

26 July, 2021

Judgment of the Court (Second Chamber) of 27 January 2021, in Case C-595/18 P, The Goldman Sachs. Group Inc. v European Commission., in Case C-301/19 P. ECLI:EU:C:2021:73. Single economic unit doctrine, economic entity, parent liability, rebuttable presumption, informal relationships, personal links, appraisal of the facts, review of the finding of facts.

Substantive: The Court of Justice confirm General Court Judgement and Commission Decision thatrebuttable presumption of single economic unit applies in cases in which parent company owns […]