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European Commission dawn raids – Advocate General recommends the avoidance of “fishing expeditions”

Earlier this month, Advocate General Wahl delivered his opinion in the Deutsche Bahn1 case. This case concerns important practical principles which govern the conduct of European Commission dawn raids (on-the-spot surprise inspections used to investigate possible infringements of the EU competition rules). In particular, the case focusses on what inspectors can do with documents that that they have found during an inspection which do not relate to the subject matter of their inspection, but indicate separate unrelated anti-competitive behaviour.

Business needs to review closely this opinion (and final judgment in this case) to ensure that their dawn raid procedures and training reflect best [...]

Valuing Sustainability? The ACM’s analysis of “Chicken for Tomorrow” under Art. 101(3)

On 26 January 2015, the Dutch competition authority announced its decision that industry-wide initiatives for the “Chicken for Tomorrow” in the Netherlands restrict competition. The ACM reached this conclusion on the basis of extensive economic research assessing the extent to which consumers value the benefits that the “Chicken for Tomorrow” would bring in terms of animal welfare and the environment. Although this particular initiative was not sufficiently valued by consumers to justify exemption under Article 101(3) and its Dutch equivalent, the ACM’s analysis provides useful guidance for the future assessment of sustainability initiatives involving cooperation between firms.

T [...]

Net Neutrality – quo vadis?

In April 2014, just before the elections, the European Parliament approved in first reading the draft Commission Regulation on the Telecoms Single Market Regulation (“TSM” or “Connected Continent”). One of the provisions covered net neutrality, shortening the list of “exceptional” cases in which ISPs could block or slow down on-line content. Moreover, such “traffic management measures” needed to be “transparent, non-discriminatory and proportionate” and “not be maintained longer than necessary”.

Since then, the EU legislative process has slowed down. Net neutrality is one of the sensitive points of the negotiations. In January 2015 the Latvian Presidency proposed [...]

Canadian Court Clarifies Competition Bureau Disclosure Obligations in Cartel Prosecutions


On February 4, 2015, the Ontario Superior Court of Justice ruled that relevant factual information proffered to the Crown in order to qualify for immunity or leniency under the Competition Bureau’s cartel Immunity and Leniency Programs is not protected from disclosure to accused persons by either solicitor-client or settlement privilege. The Court’s decision clarifies the robust nature of the Crown’s disclosure obligations in competition law prosecutions deriving from immunity or leniency applications, and confirms the lack of any legitimate expectation of confidentiality vis-à-vis accused persons that immunity or leniency applicants c [...]

United Kingdom: a recent rush of Phase I merger enforcement by the CMA

In an earlier post, of 2 December 2014, in which I reviewed the Competition and Markets Authority’s (“CMA”) draft annual plan for 2015/2016, I observed that (as of that date) the CMA had not, since assuming the functions of the Office of Fair Trading and Competition Commission on 1 April 2014, opened a Phase II merger investigation. Since then, and notwithstanding the holiday period, the CMA has been extremely active in merger enforcement: it has referred four mergers for in-depth Phase II investigations, has accepted Phase I remedies in a fifth and is consulting on remedies in a sixth.

In this post, I review the CMA’s recent merger activity and identify a number of aspects of the C [...]

Key Competition and Foreign Investment Review Trends for Canada in 2015 (co-written with Charles Tingley)

Three key themes will shape Canadian competition and foreign investment law in 2015. Specifically, we see developments in these areas unfolding in a regulatory environment in which administration and enforcement is increasingly:

• consumer-facing: The Competition Bureau’s focus on enforcement in consumer-facing industries will continue into 2015, with policy emphases and recent or open dossiers related to health and pharmaceuticals, premium texting, grocery retailing, digital taxi dispatch services, iPhones and deceptive marketing practices in the digital environment, among others.
• influenced by electoral politics: As Canadians prepare to head to the polls later this year, federal poli [...]

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