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Cartel Enforcement: In Europe, Like Canada, Cat & Mouse Game: Remarks by EC Competition Head Almunia, Some Thoughts for Canada

Earlier today I read remarks delivered by European Commission competition head Joaquin Almunia in Brussels on the topic of cartel enforcement (see: Fighting against cartels: A priority for the present and for the future). He discussed, among other things, recent European cartel cases, fines achieved, cartels in innovation and fast moving markets and recent detection strategies (see highlights at the bottom of this post).

Readers of my blog will know that I find cartel detection and enforcement one of the most interesting, if not the most interesting, aspect of working in the competition law area. Perhaps it’s the game theory associated with the formation, maintenance and detection of carte [...]

Note on a missed opportunity for the administration of justice across Europe

About ten days ago, the Council of the EU failed to reach an agreement on the proposed increase in the number of judges sitting at the General Court of the European Union.  The Council thus buried ‑ and for quite a while – a proposal which could have helped the General Court reduce its currently impressive backlog of cases.

This backlog has been problematic for over a decade now.  It reached an unprecedented level last year, with “an all-time high” number of 790 new cases brought to the General Court, a jump of nearly 30% compared with 2012.  Despite the General Court’s constant efforts (three additional chambers; optimized scheduling of hearings; simplified procedure in trade m [...]

Swiss Competition Commission rejects liability of a natural person with a controlling shareholding in companies under cartel investigation

By Marcel Meinhardt and Frank Bremer, Lenz & Staehelin, Switzerland

On November 18, 2013, the Swiss Competition Commission (ComCo) closed proceedings without further action against a Swiss individual with a formerly controlling stake in companies investigated for a possible abuse of a dominant position under the Swiss Cartel Act (CartA).

The decision clarifies the applicability of Swiss competition law to individual personal shareholders in an undertaking. According to the ComCo, if an individual exercises control over a company and, in addition, is actively involved in its management, this, on its own, does not entail qualification as an undertaking within the meaning of the CartA. For the [...]

The Google commitments and the transformation of EU antitrust enforcement

The proceedings brought by the European Commission against Google are nearing a – provisional – end with the prospect of a decision making binding on Google a revised set of commitments (see here for the Commission statement and here for the full text of the proposed commitments). Independently of their merits in addressing the Commission’s concerns, the Google commitments testify of a more general transformation in EU antitrust enforcement prompted by the multi-faceted “modernization” process associated with the entry into force of Regulation 1/2003, close to 10 years ago. This is first of all because commitments constitute a distinctive feature of “procedural modernization” [...]

Proposed Amendment to Canada’s Competition Act to Prohibit “Unjustified” Cross-Border Price Discrimination

On February 11, 2014, the Canadian government included in its federal budget a proposed amendment to the Competition Act to prohibit unjustified price discrimination to reduce the gap between consumer prices in Canada and the United States. The Minister of Finance made clear that the Commissioner of Competition, the head of Canada’s Competition Bureau, would have the power to enforce the new rules. More details are to be provided in the coming months.

If enacted, this amendment could introduce considerable uncertainty and risk for multinational suppliers or retailers that sell products in Canada. For example, such firms may now be required to ensure that any difference in the prices paid by [...]

Canadian Federal Court of Appeal Expands Scope of Competition Act’s Abuse of Dominance Provisions

On February 3, 2014, the Federal Court of Appeal overturned the Competition Tribunal’s 2013 decision dismissing the Commissioner of Competition’s abuse of dominance allegations against the Toronto Real Estate Board (TREB) and referred the case back to the Tribunal. In so doing, the Court held that the Competition Act’s abuse of dominance provisions could potentially apply to a person that controls a market even if that person does not compete in that market. While the long-term effects of the decision remain to be determined, trade associations and companies that may be considered to control a market in which they do not compete should carefully consider the impact of the decision on th [...]

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