• In its 2019 Spring Video Series, PaRR’s reporters sat down with some of the top ascending minds tackling the most importance competition policy challenges around the world. Amabelle Asuncion reflected on what she learned implementing the Philippine Competition Act in 2015 as well as the intuition gained after getting the Philippine Competition Commission off the ground the following year. 

    The burden and the standard of proof required of companies in antitrust cases are often misunderstood and practitioners should focus debate on the latter, a senior European Commission (EC) official said in Brussels today (25 November).

    The two concepts need to be distinguished for intellectual soundness, Thomas Kramler, DG Comp’s head of unit for antitrust in ecommerce and digital economy, said, while referring to a report authored this year by three special advisers to EU competition commissioner Margrethe Vestager.

    “When one reads the report, one reads ‘burden of proof’,” Kramler said, adding: “What is meant is we should use more by object type of infringements, that is, it talks about the standard of proof.”

    Shifting the burden of proof would be more difficult and requires more care, the EC official said.

    PaRR subscribers can read the full article on PaRR here.

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  • China’s national security review process has historically been opaque. But a recent bid by Yonghui Superstore to take control of competitor Zhongbai Holdings has given much needed clarity on the timelines involved in such a review.

    Despite receiving antitrust clearance on August, the Shanghai-listed supermarket chain operator also needed to secure national security approval. While the exact nature of the ongoing review is unknown, the fact that Yonghui’s largest shareholder is Hong Kong-incorporated Dairy Farm Company – itself a portfolio company of British conglomerate Jardine Matheson – possibly contributed to the surprise national security review.

    Currently, three separate regulations govern national security reviews in China: a February 2011 State Council notice establishing the current system; Ministry of Commerce (MOFCOM) implementation rules issued in August 2011; and a State Council notice regarding free trade zones issued in April 2015.

    PaRR subscribers can read the full article on PaRR here.

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    A proposed ex-ante tool for monitoring digital markets which would allow competition regulators to impose remedies absent an infringement is based in part on the Dutch regulator’s significant market power mechanism, the head of the Dutch agency said in Brussels today (20 November).

    The Autoriteit Consument en Markt (ACM) has significant experience imposing remedies in the telecoms sector absent infringement proceedings through the use of its significant market power regime, said Martin Snoep, head of the authority at a PaRR Benelux event.

    Snoep said that the idea – outlined in a joint memorandum by the three Benelux authorities– is to create a ‘one-size-fits-all’ solution at the EU level that would allow the European Commission (EC) to investigate fast moving markets and to impose remedies, preferably through a negotiated outcome, without opening infringement proceedings.

    PaRR subscribers can read the full article on PaRR here.

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  • A Spanish second-instance court has decided to file a request for preliminary ruling before the European Court of Justice (ECJ) regarding subsidiaries’ liability in infringements committed by parent companies in the context of the Spanish truck cartel litigation.

    According to a recent order seen by PaRR, the Audiencia Provincial de Barcelona will ask the ECJ whether its doctrine on “economic unity” allows for liability to be extended from subsidiary to parent company or from parent company to subsidiary indiscriminately.

    Hundreds of damages claims have been lodged in Spain by truck owners following the July 2016 European Commission (EC) settlement decision imposing a EUR 2.92bn penalty on truck makers DaimlerIvecoVolvo/Renault and DAF for fixing the prices of heavy and medium heavy trucks between 1997 and 2011.

    PaRR subscribers can read the full article on PaRR here.

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    Two Spanish commercial courts have recently granted damages to claimants seeking redress for a European truck cartel, but have reached new conclusions concerning the due costs and interest.

    An Oviedo court ordered Daimler to pay EUR 12,734 to a claimant, but found that the firm must only pay interest accrued since the filing of the claim, while a Pontevedra judge, who also granted damages, instructed MAN to bear the costs of the proceedings due to its obstructive strategy.

    The actions follow the July 2016 European Commission (EC) decision imposing a EUR 2.92bn penalty on truck makers Daimler, Iveco, Volvo/Renault and DAF for fixing the prices of heavy and medium heavy trucks between 1997 and 2011.

    PaRR subscribers can read the full article on PaRR here.

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  • China’s State Administration for Market Regulation (SAMR) is likely to witness a change in antitrust unit leadership in the near future as a result of internal rotation of bureau chiefs, according to three sources familiar with the matter.

    Wu Zhenguo, the current director-general of the Antimonopoly Bureau (AMB), is expected to be relocated to another position within SAMR, according to the sources. 

    The personnel change has been under discussion since SAMR’s new chief Xiao Yaqing took office in May this year, when he replaced former chief Zhang Mao, the sources added.

    PaRR subscribers can read the full article on PaRR here.

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    A chain of cases before German courts over the next few months are set to steer how licensing for connected cars in the 5G era is managed as judges hear arguments in Europe's first such standard-essential patents (SEP) litigation, three people familiar with the matter told PaRR.

    Munich regional court's 21st civil chamber, with Tobias Pichlmaier as presiding judge, will hear arguments tomorrow (30 October) in two cases relating to separate SEPs in a series of infringement actions filed by Nokia against German carmaker Daimler.

    PaRR subscribers can read the full article on PaRR here.

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  • The validity of assigned damages claims to a litigation vehicle and of the underlying action came under the spotlight as one of Germany’s largest follow-on actions arising from the truck cartel was heard before Judge Gesa Lutz in Munich’s District Court (24 October).
     
    The case sees Financialrights Claims GmBH (Financialrights) seeking damages of EUR 600m plus interest on behalf of approximately 3,200 potentially injured parties from around 20 EU member states. The claims have been assigned to Financialrights on behalf of the German hauliers’ association ‘Bundesverband Güterkraftverkehr Logistik und Entsorgung’ (BGL) and represent more than 84,000 individual truck acquisitions.
     
    Amongst other issues the court considered fundamental questions surrounding the validity of the statement of claim, whether Financialrights had a legitimate right to bring the claims to court and whether the ultimate claimants had validly assigned their claims to the vehicle.
     
    The court heard that...[continued].
     
    PaRR subscribers can read the full article on PaRR here.
     
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    Israel’s Supreme Court will consider whether a class action for damages following a European Commission (EC) cartel decision has standing in Israel after a district court rebuffed the claim, one of two lawyers acting for the class of plaintiffs has told PaRR .

    PaRR subscribers can read the full article on PaRR here.
     
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  • Challenges to the Irish High Court’s jurisdiction in ongoing follow-on trucks damages claims are expected to fall away following the European Court of Justice’s (ECJ) Tibor-Trans decision, the lawyer leading the Irish claims has told PaRR.
     
     
    Evan O’Dwyer of O’Dwyer Solicitors filed 64 damages claims in 2017 on behalf of purchasers following the July 2016 European Commission (EC) decision fining Volvo/RenaultDaimlerIveco and DAF a total of EUR 2.92bn for fixing prices of medium and heavy trucks sold between 1997 and 2011. MAN received full immunity from fines for revealing the cartel.
     
     
    The large group of claimants in Ireland includes hauliers, construction companies and individual purchasers of trucks. Banks and financing companies are being sued along with truck manufacturers.
     
     
    PaRR subscribers can read the full article on PaRR here.
     
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    Cartelists facing applications for collective proceeding orders by the British Road Haulage Association (RHA) and UK Trucks Claim Limited (UKTC) have told a London court today (4 June) that the proposed class representatives’ litigation funding agreements are unenforceable.
     
    In July 2016, the European Commission (EC) found that MANVolvo/RenaultDaimlerIveco, and DAF fixed “gross” list prices of heavy and medium heavy trucks between 1997 and 2011 in a settlement decision.
     
    Whistleblower MAN received immunity from fines, while the remaining companies received penalties totalling EUR 2.92bn.
     
    Non-settling firm Scania was fined EUR 880m for its involvement in September 2017. Its appeal of the EC decision was published in February last year.
     
    The Competition Appeal Tribunal (CAT) decided last month to grant a stay of the main CPO hearing, to await the outcome of MasterCard’s application to the Supreme Court for permission to appeal the April ruling that Walter Merricks’ 14bn CPO application be sent back to the Tribunal for reconsideration.
     
    The main hearing was originally set for June, but the court instead decided to consider preliminary issues about funding arrangements and costs. The truck-makers, led by DAF, are contending that due to the RHA and UKTC’s “unenforceable” funding agreements, the two vehicles cannot act as class representatives.
     
    Bankim Thanki QC, representing DAF, said that the litigation funding agreements (LFAs) entered into by the RHA and UKTC were “unenforceable” as they constitute Damages-Based Agreements (DBAs) under the relevant law.
     
    PaRR subscribers can read the full article on PaRR here.
     
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  • An unnamed construction services firm in Germany is not required to demonstrate that overcharges caused by the EU truck cartel were not passed on to its clients, a ruling by the Stuttgart Higher Regional Court published today (16 May) shows.

     

    According to the judgment, the Stuttgart court last month upheld most of a lower instance court ruling backing the liability of Daimler for damages caused to the construction company that resulted from its involvement in the 14-year infringement.

     

    The claimant bought 11 vehicles from Daimler between 1997 and 2010, with claims for all but one purchase backed by the courts.

     

    PaRR subscribers can read the full article on PaRR here.
     
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    The Amsterdam District Court has ordered 10 claimants including litigation vehicles to show against which truck purchases they are basing cartel damages claims against five manufacturers, according to a 15 May ruling seen by PaRR.
     
    Judges concluded that at least five of the claiming parties did not adduce enough proof of the lorries bought and said they have to show which truck was purchased from who, when and how.
     
    Claimants have until 18 September to produce all the necessary evidence.
     
    PaRR subscribers can read the full article on PaRR here.
     
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  • Four Spanish commercial courts have partially accepted requests for information disclosure filed by several claimants preparing damages suits stemming from a European truck cartel.

     

    According to 13 orders, the courts from Bilbao, Valencia, Donostia/San Sebastián and Logroño supported the disclosure of data regarding truck pricing.

     

    However, they refused applications to order the defendants to disclose information concerning alleged fuel overconsumption or to request the European Commission (EC) to provide its full, confidential decision.

     
    PaRR subscribers can read the full article on PaRR here.
     
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    The European Court of Justice (ECJ) has ruled that a Hungarian court has jurisdiction over a cartel damages claim by a logistics firm against DAF concerning trucks purchased through a dealership.

     

    In its ruling, the ECJ concluded that the jurisdiction was based on the fact that the alleged damage arose in the market where prices were distorted, which for the claimant is Hungary. 

     
    PaRR subscribers can read the full article on PaRR here.
     
     
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  • Executives from a local Chinese manufacturer of active pharmaceutical ingredients (API) in Shandong Province are facing criminal charges for obstructing an antitrust investigation, three sources familiar with the matter told PaRR.

    More than a dozen senior executives from the company have been arrested or are wanted by the authorities over attacks on antitrust officials from the State Administration for Market Regulation (SAMR) earlier this year, the sources said.

    The sources declined to name the company involved, which was being investigated for alleged abuse of dominance.

    PaRR subscribers can read the full article on PaRR here

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    The European Commission (EC) can split large technology companies but seeks the path of a fine balance between enforcing competition law and protecting business opportunities which digital giants provide European businesses with, competition chief Margrethe Vestager said during confirmation hearings related to her new appointment before the European Parliament (EP) today (8 October).

    Dutch member of Parliament Paul Tang asked Vestager whether there was an option “on the table” of breaking up large companies such as Facebook and Google for harming competition in Europe, while reminding the Danish politician that the EP has recommended such a split several times.

    “Well, this is a tool that is available. It can be done,” Vestager said in response.

    “The thing is I have an obligation to use the least intrusive tool in order to restore fair competition,” she said, adding that since it is “quite a thing” to break up a company, she is also obliged to try using other tools to solve competition issues.

    PaRR subscribers can read the full article on PaRR here

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  • The EU General Court (GC) today (24 September) quashed the European Commission’s (EC) decision ordering the Netherlands to recover illegal state aid from Starbucks and confirmed a similar decision ordering Luxembourg to obtain unpaid taxes from Fiat.

    In the ruling concerning Starbucks, the GC concluded that the EC wrongly found that the methodology used to determine a royalty paid within the Starbucks group was incorrect.

    In October 2015, the EC had ordered Fiat and Starbucks to pay between EUR 20m and EUR 30m in unpaid tax to the governments of Luxembourg and the Netherlands.

    PaRR subscribers can read the full article on PaRR here

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    The EU General Court (GC) today (24 September) quashed the European Commission’s (EC) decision ordering the Netherlands to recover illegal state aid from Starbucks and confirmed a similar decision ordering Luxembourg to obtain unpaid taxes from Fiat.

    In the ruling concerning Starbucks, the GC concluded that the EC wrongly found that the methodology used to determine a royalty paid within the Starbucks group was incorrect.

    In October 2015, the EC had ordered Fiat and Starbucks to pay between EUR 20m and EUR 30m in unpaid tax to the governments of Luxembourg and the Netherlands.

    PaRR subscribers can read the full article on PaRR here

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  • Osram [ETR: OSR] and ams [VIE:AMS] do not expect their potential tie-up to raise competition concerns due to limited overlap between their activities, spokespeople for both companies told this news service.

    On 16 September, the German lighting group recommended shareholders to accept ams' takeover offer of EUR 38.50 per share over Bain Capital and Carlyle Group's EUR 35 per share bid.

    The company told investors that ams's offer is financially attractive.

    The two businesses share similar customers in the automotive industry, a spokesperson for Osram said.

    There are overlaps in terms of sensors in both businesses’ mobile segments, where the two companies are direct competitors in their product offering, he added.

    However, Osram mainly offers light sources, whereas ams provides signal chips and power electronics therefore they are not expecting this overlap to create concerns, he said.

    PaRR subscribers can read the full article on PaRR here

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    A Spanish commercial court has ordered truck makers Iveco S.p.a. and Daimler AG to pay EUR 44,457 to two plaintiffs in compensation for overcharge due to their involvement in a European truck cartel.
     
    According to the two recent rulings, the Juzgado de lo Mercantil No. 1 of Pontevedra partly dismissed the damages calculation advanced by the claimants, establishing instead that the overcharge amounted to 9% of the vehicle’s purchase price plus interest.
     
    The claims followed a July 2016 European Commission (EC) decision imposing a EUR 2.92bn penalty on Daimler, Iveco, Volvo/Renault and DAF for fixing the prices of heavy and medium heavy trucks between 1997 and 2011. MAN avoided a penalty for blowing the whistle on the infringement.
     
    PaRR subscribers can read the full article on PaRR here.
     
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  • The German competition authority is keenly monitoring developments over Facebook's yet-to-be-launched cryptocurrency Libra, with president Andreas Mundt flagging concerns that the platform's ability to gather financial data will further bolster its dominance.

    The Bundeskartellamt (BKartA) is also monitoring Apple Pay and Google Pay - payment services offered by the smartphone maker and the search giant respectively - for competition concerns, Mundt told PaRR in an interview.

    The Bonn-headquartered agency chief said that Facebook already collects a lot of personal data and is a dominant player.

    Matthew Boswell, newly named commissioner of the Canadian Competition Bureau (CCB), sits down with Acuris to provide details to help us better understand the antitrust agency’s process and how, when reviewing large cross-border transactions, it coordinates with counterparts in the US and other jurisdictions. Boswell, who was named to the CCB post for a five-year term last March, covers topics including goals for the agency under his leadership; how the CCB is responding to some of the Big Tech concerns being raised in the US and the EU; and plans to work with international groups on issues such as unilateral conduct in the digital space. Click here to learn more.
  • Indonesia’s antitrust authority, Komisi Pengawas Persaingan Usaha (KPPU) though has been fighting to get extraterritorial powers and the ability to conduct dawn raid, its Chairman Kurnia Toha and Commissioner Kodrat Wibowo tell Freny Patel, Editor Asia Pacific, PaRR Global, that these proposals have been shot down by the government. 
     
    Toha says that international cooperation is very important and helpful when it comes to global mergers having an impact on Indonesia. Click here to learn more. 
     
    Freshfields Bruckhaus Deringer’s two partners and co-heads of the China competition practice, Ninette Dodoo and Hazel Yin spell out how China unlike its counterparts in the West is “extensively relaxing” its foreign investment rules. This they tell Freny Patel, Editor Asia Pacific, PaRR Global is encouraging especially when it comes to protecting intellectual property of foreign investors, which is at the heart of the dispute between China and the US in the ongoing Trade War. Click here to learn more. 
  • Japan’s antitrust authority feels there is a need for “a brand new government agency” to oversee digital platforms. Commissioner Reiko Aoki of the Japan Fair Trade Commission tells Freny Patel, Editor Asia Pacific, PaRR Global that it is very difficult for a single existing regulator to oversee digital platforms given their complicated business models and technologies. Click here to learn more.
    Beatriz de Guindos Talavera, Head of cCmpetition at the Spanish competition authority, discusses guidance the agency is producing to help avoid future challenges against its decisions, and the impact of the new European Competition Network directive, and the damages directive in Spain. Click here to learn more.
  • Chilufya Sampa, Executive Director of the Zambian Competition and Consumer Protection Commission, highlights recent examples of enforcement work at the agency, the domestic importance of the agricultural sector and the role of advocacy in enforcement. Sampa also considers the role of the Zambian agency within COMESA, and the impact that broader attempts to unify African trade treaties may have on future competition enforcement. Click here to learn more.

    Alexandre Barreto, president of Brazil's competition authority CADE, discusses the agency's adherence to the Organisation for the Economic Co-operation and Development's (OECD) Competition Committee, claims Brazil's Bolsonaro government will have no interference on CADE's daily activities, discusses plans for 2019 and defends the agency's evidentiary standards in this March 2019 interview. Click here for the full video. Click here to learn more.