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The European Commission plays a key role in the application of EU competition law. Various mechanisms exist for reviewing the exercise of these powers. They include the European Ombudsman. While the mandate of the Ombudsman goes far beyond competition law—he deals with allegations of ‘maladministration’ in all areas where EU institutions and bodies operate—his role has interesting applications in the competition law field, as demonstrated by his recent Intel [...]

Competition is often described as a mechanism allowing consumers to access better products or services at lower prices. That result would be obtained through the rivalry process compelling firms to improve their offers in a hope of being selected, rather than rejected, by consumers. In this contribution, the author examines to what extent that presentation applies to firms providing services considered of to be of a general [...]

This survey article discusses the major EU competition law developments in the pharmaceutical sector from 1 July 2009 to 30 June 2010. The most significant development during this period was the Commission’s publication of its Final Report on the Pharmaceutical Sector Inquiry. The key features of the Final Report and its implications for pharmaceutical companies going forward are discussed in some detail below. The other significant development was the General Court’s much-anticipated judgment in the GSK Spanish dual pricing case, which is also discussed at length below. The Spanish competition authority’s decisions dealing with a similar issue are also noteworthy and are discussed briefly. Finally, the Commission’s merger decisions in Pfizer/Wyeth and Merck/Schering Plough provide a good sense of its approach to mergers in this [...]

One sentence summary: On 4 May 2010 the European Commission (the Commission) rendered legally binding commitments by German energy supplier E.ON including inter alia the commitment to release by 1 October 2010 capacities at different entry points relating to 15 per cent of the group’s entire gas pipeline capacity and to reduce its bookings of entry capacities in the H-gas grid to 50 per cent and in its L-gas grid to 64 per cent by 1 October 2015.

Abstract: In this decision the Commission has avoided exposing itself to criticism that it tries to achieve ownership unbundling in energy markets by improper use of commitment decisions. The imposed commitments will likely improve the market structure in the German gas transport market especially when complemented by measures of the Federal Cartel Office (FCO) or the German legislator to achieve further competition at corresponding exit [...]

Single sentence summary: Statements made by the French government, aimed at assuring France Télécom of its support at a time when the operator was experiencing a major crisis, do not constitute State aid within the meaning of Article 107(1) of the Treaty on the Functioning of The European Union (TFEU).

The France Télécom judgment demonstrates that inventive governments may favour their national industries with government measures that fall outside the scope of Article 107(1) TFEU. The situation at hand is a direct result of the policy choice made by the European Court of Justice (ECJ) in Sloman Neptun, that government measures must result in a transfer of State resources in order to qualify as aid within the meaning of Article 107(1) [...]

One sentence summary: The Draft Communication from the Commission on Guidelines on the Applicability of Article 101 TFEU (the ‘Draft Guidelines’) features an eagerly awaited chapter on information exchanges, but may fail to satisfy those calling for more legal certainty.

Among the innovations of the Draft Guidelines, anticipated to replace the 2001 Guidelines, is a chapter on information exchanges. This chapter, on which this note focuses, will without doubt attract criticism, but is to be welcomed. It does not establish safe harbours and emphasises the need for a case-by-case analysis. This note argues that this may be disappointing from a practitioner’s point of view, but that this inevitably results from the diversity of information [...]

In the period covered (15 April to 15 June 2010), the European Commission (Commission) reached the first settlement in a cartel case under their new settlement rules. It also issued revised competition rules for the distribution of goods and services by adopting the new block exemption regulation (BER) and guidelines for vertical restraints. In addition, the Commission published draft BERs and guidelines applicable to horizontal cooperation. Other developments included the opening of a second phase investigation in the proposed takeover of Sara Lee’s body and laundry care business by Unilever. In the area of state aid, the Commission’s examination of national aids granted to financial institutions in the aftermath of the financial crisis reveals that reliance on such aids by financial institutions is [...]

One sentence summary: The OFT recently published its first short-form opinion, designed to provide advice in a short timeframe to businesses seeking clarity on how the law applies to prospective collaboration agreements between competitors which raise novel or unresolved competition issues.

The OFT’s new short-form opinion process was developed in response to concerns expressed by businesses and Government policy makers that some beneficial collaboration agreements were not going ahead for fear of breaching competition law. The lack of recent precedents in a self-assessment world appeared to be resulting in businesses and their advisers adopting a cautious approach at times. It is hoped that the guidance provided in the new short-form opinions goes some way to fill this gap so that competition law is not seen as chilling procompetitive agreements. The first short-form opinion has been published [...]

During the last two years, the Commission has continued to impose very heavy fines on undertakings that have infringed Articles 81 or 82 EC (now Articles 101 and 102 TFEU). At the same time, the first decisions applying the 2006 Fining Guidelines show that the Commission is sometimes willing to adapt its general methodology to specific situations. For instance, while the Commission promotes a broad, and sometimes excessively broad, interpretation of the rules that allow it to find a single, continuous infringement, in several cases it has adopted a calibrated approach taking into account the lower probative value of the evidence on which it relied for certain periods of the infringement. The notion of ‘value of sales’, a key element in the calculation of fines, has more generally given rise to many adaptations. In 2008–2009, the Commission has also imposed several fines for infringements of rules other than Articles 101 and 102 TFEU, in particular for obstruction of an investigation (in this case the breach of a seal), non-compliance with a Commission decision, or gun-jumping. As to the EU Courts, in 2008–2009 they have indirectly confirmed the legality of Article 23(2) of Regulation No 1/2003 and ruled that the suspension of the running of the statute of limitations did not apply erga omnes. Some judgments have also given signs that the EU Courts’ control of legality on certain elements of these fines would remain limited. This makes it even more crucial that the EU Courts exercise their unlimited jurisdiction [...]