US and EU antitrust law – antipodes as far as individual liability is concerned?
The US and EU approaches with regard to individual liability for competition law infringements have traditionally been notoriously different. US antitrust enforcement is well-known for its use of criminal sanctions against individuals, from fines to imprisonment. Since 2004, an individual who takes part in a cartel in the US can be imprisoned for up to ten years under the US Sherman act. In 2011 some 35 to 40 individuals received an average prison sentence of 17 months in the USA for cartel activities. By contrast, EU competition law exclusively focuses on infringements of competition law by “undertakings” [...]
Cross-border antitrust enforcement issues are back on the agenda. The recent Toshiba judgment of the European Court of Justice (“ECJ”) has confirmed a number of principles governing the network enforcement system set forth in the EU by Regulation 1/2003. Recent national decisions involving the same companies and/or closely related sectors (e.g., the flour milling industry) testify of the dynamic cooperation among national competition authorities (“NCAs”). Yet, lasting uncertainties remain. In Toshiba, the ECJ has largely left open the ne bis in idem question and the reliance on the cooperation mechanisms provided for by Regulation 1/2003 – i.e., the cross-border exchange of inf [...]
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 [...]
A review of all decisions adopted pursuant to Article 81 EC/101 TFEU between the first of January 2000 and the first of January 2011 reveals that, excluding hardcore cartels, the Commission has issued altogether 18 infringement decisions and 10 commitment decisions. This is in addition to 6 negative clearance decisions and 18 exemption decisions adopted under Regulation 17/62. Among the 28 infringement and commitment decisions, 14 related to vertical restraints and 14 to horizontal restraints. Among the 18 infringement decisions, 10 are posterior to the entry into force of Regulation 1/2003 but only 5 have been adopted over the past 5 years and all in relation to horizontal cases.
On 14 February, the Court of Justice will deliver a ruling on a preliminary reference by a Czech Regional Court in Brno, which is likely to provide welcome guidance on the issue of parallel proceedings within the ECN and the principle of ne bis in idem.
The Gas Insulated Switchgear cartel and its prosecution in Europe
The nearly world-wide GIS cartel, uncovered in 2004, involved various well-known European and Japanese undertakings (ABB, Alstom, Areva, Fuji Electric, Hitachi, Japan AE Power Systems, [...]
On 13 September, the Commission published its decision of 31 March 2011 in China National Bluestar/Elkem. After DSM/Sinochem/JV (decision of 10 May but published in June), this was the second published decision which dealt in some detail with the question how to treat Chinese State-owned Enterprises or SOEs under the EUMR. The question has both procedural and substantive implications.
Procedurally, the question is whether the revenues of other SOEs should be taken into account when calculating the revenues of the SOE involved in the transaction. From a substantive perspective, the Commission may need to analyze competitive effects of a combination of a company with an SOE, taking into acc [...]