Maria and I contributed to a terrific and rather unusual new book which is just out entitled “Horizontal Agreements and Cartels in EU Competition Law”, edited by good friends Frank Wijckmans and Filip Tuytschaever. The book is beautifully published by Oxford University Press.
The book is unusual, unique even, because each chapter is divided into two parts. A first part is written by a private practitioner and a second part is written by a public enforcer. In that way, the reader gets two different perspectives nourished by the experience of both.
Chapter 7, on judicial review, is written by Dirk Arts – he provides the practitioner’s perspective – and, yes ! Maria and myself, who provide the enforcer’s perspective. It will leave you breathless !
Here’s the table of contents:
1: Typology and Proof of Cartels
2: Detection of Cartels
3: Investigation of Cartels
4: Procedure Before the Commission
5: Public Sanctions
7: Judicial Review
8: Private Enforcement
9: Block Exemption Regulations R&D and Specialization
10: Other Horizontal Agreements (I): Joint Purchasing, Joint Selling, Standardization
11: Other Horizontal Agreements (II): Information Exchanges
Go out and buy it ! (All royalties are donated to charity).
It will take several posts to cover all those points so I’ll just deal with the substantive, “restriction by object” point.
A while ago on 16 September 2014, Maria wrote a post on Case C- 67/13 P Groupement des cartes bancaires (“CB”) v European Commission. Many wondered whether that judgment would substantially change the understanding of restrictions of competition “by object” and “by effect”. A look at the Court’s judgment in Case C-286/13 P leads to the conclusion that rumours of a substantial change are either premature or unfounded.
Here’s another twist in the saga of the removal services case. And rather a cheeky one too ! Two undertakings that the Commission found in its decision to have participated in an illicit cartel in breach of Article 101 TFEU sued the Commission in damages …. for adopting that decision ! In its judgment of 15 January 2015 in Joined Cases T-539/12 and T-150/13 Ziegler SA and Ziegler Relocation SA, EU:T:2015:15 the General Court dismissed the claim.
The General Court handed down an order recently in Case T-479/14 Kendrion NV v EU represented by the Court of Justice, EU:T:2015:2. It finds that the Court of Justice is the right defendant in an action for damages in a claim for compensation for the loss and damage caused by unreasonable delay in judicial proceedings in the General Court.
A rich and spicy situation ! The General Court dismissing an inadmissibility plea by the Court of Justice.
Here’s some explanation and background how such a situation can arise.
That is an interesting enough point, of course. The judgment is also of interest because the Court seems to take a softer line than usual concerning the admissibility of the question and the lack of cross-border interest in the case as present by the national court.
In this case, there was a rather peculiar twist in the facts which lead the Court to adopt a cautious approach. It led the Court to distinguish between “workers”, “self employed” persons who are usually considered to be “undertakings” and “false self employed” who are more like workers.
A trade union representing musicians negotiated a collective agreement with an organisation representing orchestras in the Netherlands. Not only were salaried, employee musicians covered by the agreement, but it was negotiated on behalf of independent, self employed musicians also. Thus the Court was faced with the question whether a provision of a collective labour agreement, which sets minimum fees for self-employed service providers who are members of one of the contracting employees’ organisations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, does not fall within the scope of Article 101(1) TFEU.
The Court of Justice does not often interfere, on appeal, with the way fines for competition cases are calculated and scrutinised by the General Court. It will do so, however, if an error of law is made, for example.