Legal change sometimes takes unpredictable paths: mid-April, something important happened for European law in Luxembourg, but this did not come from the European Court of Justice (the “ECJ”).

Not every reader of this blog is necessarily aware that the ECJ has a sister European Court in Luxembourg, which is called the EFTA Court. This Court has jurisdiction with regard to the EFTA States that are parties to the EEA Agreement (at present Iceland, Liechtenstein and Norway). It delivers only a limited number of judgments every year, but they often are interesting reads. Since EEA law very much mirrors EU law, these judgments constitute a significant source of inspiration for EU law itself [...]

The past decade has seen a flurry of articles published trying to make sense of the degree of control that the EU Courts exercise on complex economic reasoning. By contrast, much less has been written about the Courts’ unlimited jurisdiction on fines, which allows them to increase or decrease the financial sanctions imposed by the Commission (See Article 261 TFEU and Article 31 of Regulation No 1/2003). This is probably due to the fact that for the past 50 years, such unlimited jurisdiction has been living a quiet life indeed. Over this period – and especially during the last three decades – the EU Courts have wielded this powerful tool with great caution, or at least with significan [...]

It is commonly accepted that, pursuant to the principle of intragroup immunity, Article 101 TFEU cannot catch agreements or concerted practices between entities that belong to the same undertaking. Article 101 TFEU requires coordination between at least two undertakings: everything that happens within a single undertaking simply cannot be covered by Article 101 TFEU.

Yet, for more than 20 years, the French Competition Authority and the French Courts have applied a strange exception to this principle: they consider that when various entities belonging to a single undertaking present themselves as separate entities when participating in the same public procurement procedure, they express the [...]

It is not uncommon for the law to progress as a consequence of significant discrepancies and disagreements arising between courts and enforcers. This is exactly what may currently be happening to the French rules governing the calculation of fines. One can expect that, once the dust has settled, the calculation methodology applied by the French Competition Authority will be further aligned with that used by the European Commission, as well as the UK, German and Spanish Competition Authorities.

The French Competition Authority does not currently apply any Fining Guidelines. It relies rather on the French Commercial Code, which merely provides that “[t]he financial penalties are proporti [...]

A case involving Google confirms that the French Competition Authority is keen on using a combination of interim measures and commitment proceedings in order help it quickly resolve maters which it perceives as competition issues. This may remain a specific feature of the French system however: having regard to the very demanding standard of proof imposed on the Commission before it can grant interim measures, it would be difficult to replicate this powerful regulatory tool at the EU level for instance.
The case at hand concerns the content policy of Google’s famous AdWords service. As many readers will know, the object of AdWords is to sell online advertising space on Google. Advertise [...]

Paris Court of Appeals, Order of 17 June 2010, Amaury and Others

Relying on what seems to be unprecedented reasoning, the President of the Paris Court of Appeals has quashed a judicial order authorizing a dawn raid against several companies belonging to Amaury, a French news group that publishes mainly sports newspapers. The most interesting aspect of this Order is that the President of the Paris Court of Appeals has defined and applied an especially demanding standard of proof for the justification of dawn raids targeting press groups.
The whole Order is based on the premise that the ECHR “tip[s] the balance of competing interests in favour of the interest of democratic society in securin [...]