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VOGEL GLOBAL COMPETITION NEWSLETTER
FRENCH COMPETITION LAW

4th April 2021

Restrictive agreements and abuse of dominant position: Qualified effects doctrine
The qualified effects test allows the application of the EU and EEA competition rules to be justified under public international law when it is foreseeable that the conduct at issue will have an immediate and substantial effect in the internal market or in the EEA
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Fines : Value of sales to which the infringement relates
The Commission may use the total price which the undertaking charged its customers on the relevant market for goods or services to determine the value of sales, without it being necessary to distinguish or deduce the various elements of that price according to whether or not they were the subject of coordination.
GC, Case T-340/17 Japan Airlines Co. Ltd, Judgment of 30 March 2022, LawLex202200001976JBJ

Fines : Leniency program
An undertaking that withdraws its leniency application cannot obtain a corresponding withdrawal of its statements and evidence from the Commission’s file.
GC Case T-326/17 Air Canada v Commission, Judgment of 30 March 2022, LawLex202200001990JBJ

Action for annulment : Powers of the General Court
In the exercise of its unlimited jurisdiction, and in order to ensure equal treatment of the undertakings fined, the General Court may reinstate in the value of the sales to which the infringement relates the sales implemented on routes wrongly excluded by the Commission and thus increase the basic amount of the fine.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Restrictive agreements and abuse of dominant position : Qualified effects doctrine
Effects that the parties to the agreement in question must reasonably know will occur within the limits of generally known facts, such as a price increases from the horizontal fixing of surcharges on inbound links, satisfy the foreseeability requirement.
GC, T-342/17 Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG, Judgment of 30 March 2022, LawLex202200001917JBJ

Restrictive agreements and abuse of dominant position : Qualified effects doctrine
In the case of a cartel in the air freight sector, the additional cost which shippers might have had to pay and the higher prices of goods imported into the EEA which may have resulted are among the effects produced by the conduct at issue on which the Commission was entitled to rely for the purposes of applying the qualified effects test, even if the inbound routes are operated by freight forwarders established in third countries.
GC, Case T-334/17 Cargolux Airlines International SA, Judgment of 30 March 2022, LawLex202200002012JBJ

Restrictive agreements and abuse of dominant position: Qualified effects doctrine
As regards agreements and practices which had the object of restricting competition at least in the European Union, the EEA and Switzerland and brought together carriers with significant market shares and of which a significant part related to intra-EEA routes for a period of more than six years, the Commission is entitled to consider that it was foreseeable that, taken as a whole, the single and continuous infringement would produce immediate and substantial effects in the internal market or within the EEA.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Restrictive agreements : Definition of relevant market
It is not necessary to define defining the relevant market in order to determine whether an agreement is liable to affect trade between Member States where it is impossible, without such a definition, to determine whether that agreement has as its object or effect the prevention, restriction or distortion of competition within the internal market.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Restrictive agreements : Restriction by object
Where the conduct at issue is akin to a horizontal price-fixing cartel, even if it does not concern the full final price of the services in question, the Commission may confine its examination of the economic and legal context to what is strictly necessary to characterize the agreements as a restriction of competition by object.
GC, Case T-334/17 Cargolux Airlines International SA, Judgment of 30 March 2022, LawLex202200002012JBJ

Restrictive agreements : Complex infringement
When determining whether there has been a single infringement and an overall plan, the fact that the various actions of the undertakings form part of such a plan on account of their identical object of distorting competition and the at least partial identity of the undertakings concerned is decisive, as is the material, geographic and temporal overlap between the acts and conduct at issue.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Restrictive agreements : Complex infringement
The expression of an undertaking’s accession to an overall cartel requires evidence that when participating in the agreement, it knew or should have known that in so doing it was joining in the overall cartel and the mere fact that there is identity of object between an agreement in which an undertaking participated and the overall cartel is not sufficient to establish its participation in the latter.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Restrictive agreements : Complex infringement
The concept of a single objective cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an element consubstantial with any conduct covered by Article 101(1) TFEU.
GC, T-342/17 Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG, Judgment of 30 March 2022, LawLex202200001917JBJ

Restrictive agreements : Complex infringement
The undertakings involved in the various contacts do not have to be the same, but can be partially the same nor do the natural persons involved need to be the same to find the existence of a single, continuous infringement.
GC, T-342/17 Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Air Lines AG, Judgment of 30 March 2022, LawLex202200001917JBJ

Restrictive agreements – Complex infringement
In order to establish that the various instances of conduct constitute a single and continuous infringement, the Commission is not required to demonstrate a link of complementarity between the agreements and practices concerned, since the concept of a single objective only implies verifying that there are no elements characterizing the different activities that are capable of indicating that the conduct actually implemented does not share the same anticompetitive object or effect and does not form part of an overall plan.
GC, Case T-334/17 Cargolux Airlines International SA, Judgment of 30 March 2022, LawLex202200002012JBJ

Restrictive agreements – Complex infringement
The requisite knowledge of the anticompetitive conduct planned or implemented by the other participants in the overall cartel, but in which the undertaking in question did not participate directly, is established when the examination of the many bilateral or multilateral contacts in which it was involved in various Member States and third countries shows that it could not have been unaware of the existence of a network of contacts in the context of which information was exchanged and coordination took place with regard to the level and timing of the introduction and implementation of surcharges, as well as with regard to the withholding of payment of commissions.
GC, Case T-334/17 Cargolux Airlines International SA, Judgment of 30 March 2022, LawLex202200002012JBJ

Restrictive agreements – Complex infringement
While the absence of public distancing may constitute an important fact on which the Commission can rely in order to prove that an undertaking’s anticompetitive conduct has continued, it is not sufficient, in the absence of other factors, to justify a finding of uninterrupted participation of the undertaking concerned where, over the course of a significant period of time, several collusive contacts took place in the absence of its representatives.
GC, Case T-334/17 Cargolux Airlines International SA, Judgment of 30 March 2022, LawLex202200002012JBJ

Restrictive agreements : Evidence of concerted practices
The Commission must produce firm, precise and consistent evidence, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement as those principles also apply to the determination of the beginning of their participation in the single and continuous infringement.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Restrictive agreements : State of necessity/Public interest
An undertaking cannot claim that a concerted action constitutes a legitimate response to the allegedly unlawful conduct of other undertakings as an infringement of the competition rules cannot be justified by the conduct of other undertakings, even if it is unlawful or unfair.
GC, Case T-340/17 Japan Airlines Co. Ltd, Judgment of 30 March 2022, LawLex202200001976JBJ

Statement of Objections : Additional Statement of Objections
The communication of an additional Statement of Objections is not required in respect of the undertakings to which its decision is addressed where the Commission abandons the objections raised against certain undertakings initially involved in the procedure, provided that it does not charge them with new acts or substantially amend the evidence of the contested infringements.
GC Case T-326/17 Air Canada v Commission, Judgment of 30 March 2022,

Disclosure of file : Reply to the Statement of Objections
The Commission is required to provide undertakings with the replies to the Statement of Objections of the other parties to the agreement when it relies on them to support of its finding that there is no national administrative practice requiring suppliers to coordinate on prices.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Commission decision : Obligation to state reasons
The Commission’s obligation to state reasons does not require it to set out in a decision finding an infringement of Article 101 TFEU the reasons why other undertakings have not been prosecuted or sanctioned.
GC, Case T-340/17 Japan Airlines Co. Ltd, Judgment of 30 March 2022, LawLex202200001976JBJ

Fines : Non-discrimination
An undertaking which is held liable for certain elements of a single and continuous infringement on the basis of its direct involvement in the conduct in question is not in the same position, from the point of view of its contribution to the gravity of the infringement, as undertakings found liable solely on account of their awareness, presumed or proven, of that conduct.
GC, Case T-340/17 Japan Airlines Co. Ltd, Judgment of 30 March 2022, LawLex202200001976JBJ

Fines : Gravity of the infringement
The 2006 Guidelines no longer require the Commission to take into consideration the actual impact of the infringement on the market in order to determine the percentage of the value of sales used for gravity, particularly in the case of a restriction by object.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

Fines : Value of sales to which the infringements relates
The Commission may include sales of inbound freight services in the value of sales into which the infringement relates where part of the service is provided within the EEA and apply a deduction of 50% to these sales to take account of the fact that part of the harm caused by the conduct at issue was likely to fall outside the EEA.
GC, Case T-340/17 Japan Airlines Co. Ltd, Judgment of 30 March 2022, LawLex202200001976JBJ

Fines : Repeat infringements
A single and continuous infringement and a market-sharing agreement constitute similar infringements for the purpose of establishing the existence of a repeated infringement.
GC, Case T-324/17 SAS Cargo Group A/S, Judgment of 30 March 2022, LawLex202200001875JBJ

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FRENCH DISTRIBUTION LAW

21 september 2021

Commercial agents: Scope of application
The concept of “sale of goods” referred to in Article 1(2) of Directive No 86/653 relating to self-employed commercial agents can cover the supply, in return for payment of a fee, of computer software to a customer by electronic means where that supply is accompanied by the grant of a perpetual license to use that software.
CJEU Case C-410/19 The Software Incubator Ltd v Computer Associates (UK) Ltd, Judgment of 16 September 2021, LawLex202100005323JBJ

Commercial agents: European harmonization
A person who, in return for payment of a fee, supplies computer software by electronic means to a customer, accompanied by the grant of a perpetual license to use that software, is a commercial agent having authority to negotiate the “sale of goods”.
CJEU Case C-410/19 The Software Incubator Ltd v Computer Associates (UK) Ltd, Judgment of 16 September 2021, LawLex202100005323JBJ

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FRENCH CONSUMER LAW

9 March 2020

Liability for defective products: Defect
The premature rupture of a hip implant, which is not due to the excess weight of the victim or to an error in the choice or design of the prosthesis or during the hip replacement surgery, at a point at its base in the zone of weakness of any hip prosthesis, incurs the legal liability of the manufacturer insofar as the femoral stem of the implant did not provide the safety which was to be legitimately expected.
Court of Cassation, 1st civil chamber, 26 February 2020, LawLex20200000301JBJ

Liability for defective products: Relationship with other liability rules
The liability of a doctor is only automatically incurred by reason of a defect in a healthcare product implanted in a patient on the basis of Articles 1245-6 of the Civil Code and L. 1142-2- 1, paragraph 1, of the Public Health Code in the case where the manufacturer is not able to be identified and the health professional or institution did not designate their own supplier or manufacturer within the specified time-limit.
Court of Cassation, 1st civil chamber, 26 February 2020, LawLex20200000301JBJ

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EUROPE

7th February 2022

Public procurement contracts – Directive on public works, public supply and public service contracts
An economic operator which, following the insolvency of the initial contractor which led to its liquidation, has taken over only the rights and obligations of the initial contractor arising from a framework agreement concluded with a contracting authority must be regarded as having succeeded in part that initial contractor, following corporate restructuring for the purposes of Article 72(1)(d)(ii) of Directive No 2014/24 on public procurement.
CJEU Case C 461/20 Advania Sverige AB, Judgment of 3 February 2022

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Vogel Global Competition Newsletter

NEWS FLASH
2020

No 3 – December 2020

Vertical Restraints:

  • Joseph Vogel and Louis Vogel (Vogel & Vogel, France and Europe)
  • Martin Nedelka and Jakub Jost (Nedelka Kubac Advokati, Czech Republic)
  • Charis Papachristodoulou (Papadopoulos & Lycourgos Co LLC, Cyprus)
  • Georgeta Dinu (NNDKP, Romania)
  • Balazs Csépai (Oppenheim, Hungary)
  • Chong Kin Lim (Drew & Napier, Singapore)
  • Sergiy Glushchenko (Asters, Ukraine)
  • Scott Rodger (Shepherd & Wedderburn, UK)

> Read more


No 2 – August 2020

Consequences of Covid-19 on Competition and Distribution Law.
Special thanks to the following authors whose contribution you will find in this letter:

  • Joanne Finn and Elaine Davis (DAC Beachcroft, Ireland)
  • Tzahi I. Yagur (Pearl Cohen, Israël)
  • Alexandru Sotropa and Oana Popescu (NNDKP, Romania)
  • Scott Rodger and Ellie Gannon (Shepherd Wedderburn, UK)
  • Marina Androulakakis and Tania Patsalia (Bernitsas, Greece)

> Read more


No 1 – March 2020

Francisco Rondoletti (Tanoira Cassagne, Argentina): Four key updates about Argentine law
Christan Liborius and Martin André Dittmer (Gorrissen Federspiel, Denmark): New Danish Supreme Court judgment limits companies’ chances of engaging in consortia and bidding jointly
Hanna Pohjola and Åsa Krook (Borenius, Finland): Short Update on Consumer Law Developments in Finland
Tania Patsalia (Bernitsas, Greece): Launch of sector inquiry into e-Commerce by the Hellenic Competition Commission (HCC)
Joanne Finn and Elaine Davis (DAC Beachcroft, Ireland): Four key updates about Irish law
Gabriel Bleser (Moyse Bleser, Luxembourg): Decision 2019-C-02 – Decision to take no further action by the Luxembourgish Competition Council
Kettani Law Firm (Morocco): Competition Council under the regime of Law 104-12 relating to the freedom of prices and competition
Krzysztof Kanton (Soltysinski Kawecki & Szlezak, Poland): Polish Competition Authority adopts its first settlement decision
Lim Chong Kin (Drew & Napier, Singapore): Singapore’s competition and consumer protection regulator obtains court order against the use of subscription traps by an online fashion retailer
> Read more

2019

No 2 – October 2019

Finland – Finland must recover over EUR 50 million in incompatible
Hungary – Assessment of RPM remains formalistic in the approach of
Malta – Amendments to the Competition Act aim to restore public enforcement of competition law back on its feet
Romania – Cement sector in Romania under the scrutiny of the competition authority
Singapore – Singapore’s competition regulator gains new consumer protection mandate and other significant competition and consumer law developments in Singapore
Switzerland – In May 2013, the Swiss Competition Authority rendered a decision condemning thirteen distributors (several of them being Swiss daughter companies of French publishers) of French books in Switzerland from preventing direct sales from France to Switzerland
United Kingdom – Regulation of harmful content online
> Read more


No 1 – March 2019

Argentina – Argentina brings in new and guidelines for competition enforcement
Czech Republic – Problems persist with the Act of Significant Market Power
Greece – Decision on the public works cartel case – entities that did not submit to the settlement procedure
Poland – The Polish Competition Authority gains new powers to impose fines on managers
United Kingdom – The CMA targets the UK construction industry
Ukraine – Ukrainian Competition Authority explains vertical exemption in pharma
> Read more

2018

No 2 – December 2018

Australia – New prohibition against concerted practices
Denmark – The Danish Competition Council’s decision on industry standard setting
Estonia – The Estonian Competition Authority – a shift towards stricter merger control?
Lithuania – Improving merger control in Lithuania
Polynesia – French Polynesia establishes competition framework
Romania – Romanian Competition Council sanctions private medical hospitals and stem cells banks for anticompetitive agreements
> Read more


No 1 – March 2018

Croatia – Prohibition of unfair trading practices in the food supply chain
Denmark – Danish competition rules become more reflective of EU law
India – New target exemption under the Competition Act 2002
Malta – Maltese Competition Authority imposes interim measures on insurance companies
Romania – Exchange of sensitive information in merger cases – Romanian Competition Council assessment
South Africa – The South African Competition Amendment Bill – will it be business as usual in South Africa?
United Kingdom – UK competition law following Brexit – update
> Read more

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