EU public procurement law – recent developments

kit 2Christopher Brown

On 5 November I gave a presentation on recent developments in EU public procurement law at a Matrix conference for local authority lawyers.  It is fair to say that my 30-minute slot was nowhere near enough to do full justice to the subject-matter: the new EU directives alone could easily occupy a full day or two of a conference. (See here for the slides of presentations given at a recent event held by the Procurement Lawyers’ Association on the topic; and see here for the text of the public sector directive, which has not yet been formally adopted.)

My PowerPoint slides can be found here. 

Book review: Gerardin, Layne-Farrar and Petit, EU Competition Law and Economics

Christopher Brown

Gerardin, Layne-Farrar and Petit EU Competition Law and Economics (2012, OUP)

It has taken a while to get round to reviewing a recent new treatise on EU competition law and economics by Damien Gerardin, Anne Layne-Farrar and Nicolas Petit, the book having landed on this reviewer’s desk before the summer.  Mea culpa.  Better late than never, though, especially as the book, co-authored by two lawyers with considerable experience of academia and practice and a specialist competition economist, is actually a good read.

The first question that tends to spring to mind before commencing a book review is: who is the intended audience?  That is a pertinent question here.  After all, there are now various practitioner works on EU competition law in the English language: think, in particular, of two others in the OUP stable, Bellamy and Child and Faull and Nikpay – so well known are they among practitioners that reference to the (original) authors suffices).  OUP also publishes Whish and Bailey, which is aimed primarily at students but which practitioners also find useful.  There other general practitioner works, such as Van Bael and Bellis, and a host of more specialist works.  Why, then, add another treatise on competition law to a burgeoning stable?

The answer is not, as one might expect, to be found in a preface, for there isn’t one.  The OUP website does, though, give us some insight (as, of course, does the book’s title): it says that the book “is the first EU competition law treatise that fully integrates economic reasoning in its treatment of the decisional practice of the European Commission and the case-law of the European Court of Justice.”  Continue reading

Pfleiderer revisited: the AG Opinion in Donau Chemie

Christopher Brown

img-documentsOn 7 February, AG Jääskinen issued his Opinion in Case C-536/11 Donau Chemie, a much anticipated case (at least among competition lawyers) concerning the compatibility with EU law of an Austrian law which prohibits third party access to the court files in “public law competition proceedings” absent the parties’ consent.  The questions referred by the Austrian Cartel Court thus required the CJEU to venture into similar terrain to that covered by its Pfleiderer judgment (see this previous post for an application of Pfleiderer in a domestic case).

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Rahman – further fleshing out of the position of third country nationals under the Citizenship Directive

Christopher Brown and Anita Davies

On 5 September 2012 the Grand Chamber of the CJEU gave judgment in Case C-83/11 Secretary of State for the Home Department v Rahman and Ors.  This case had been referred to the CJEU by the Upper Tribunal (IAC) here in the UK.  The questions referred concerned the interpretation of Article 3(2) of Directive 2004/38, also known as the Citizenship Directive.  We think it is an interesting judgment, particularly for immigration practitioners, and so (rather later than planned) here is a short synopsis and comment.

Article 3(2) reads as follows:

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The concept of ‘appreciable restriction of competition’ in ‘object’ cases under Article 101(1) TFEU – AG Kokott in Expedia

Christopher Brown

On 6 September 2012 AG Kokott issued her Opinion in Case C-226/11 Expedia Inc.  The case results from a preliminary reference made by the French Cour de cassation in proceedings between Expedia and the French competition authority, the Autorité de la concurrence.  The case touches on some interesting (and surprisingly under-developed) issues under the law on anti-competitive agreements contained in Article 101 TFEU – in particular, what a competition authority (and, by extension, a private law claimant) has to do to show that an agreement which restricts competition by object (rather than by effect) does so appreciably.

The facts of the Expedia case, in brief, were that Expedia and the French railways operator, SNCF, had entered into a joint venture for the sale of tickets and other travel services, as a result of which Expedia obtained privileged access to a particular website created by SNCF.  The Autorité de la concurrence took exception to this arrangement, finding it to constitute an agreement whose object was to restrict competition, contrary to Article 101(1) TFEU and its French equivalent.  Fines were imposed on Expedia and SNCF as a result.  It appears that Expedia’s appeal primarily focussed on whether the Autorité was right to have concluded that there was an appreciable restriction of competition: Expedia argued that the parties’ market shares were below the thresholds set out in the European Commission’s de minimis Notice (10% combined market share in the case of horizontal agreements; 15% share at either level of the supply chain in the case of vertical agreements), and so, according to Expedia, the Autorité was precluded as matter of EU law from finding that the agreement appreciably restricted competition.  And absent an appreciable restriction, the agreement did not infringe Article 101(1). Continue reading

National Grid – shining Pfleiderer’s light on access to EU leniency documents

Christopher Brown

A while ago I blogged on an important development in the General Court relating to the ability of victims of cartels and other anti-competitive practices to get their hands on relevant evidence enabling them to prove that they had suffered loss as a result of such unlawful conduct.  The CDC case involved a request under the EU freedom of information regime.  Whilst that is one way to request information in the hands of the EU institutions, another way is to seek disclosure of such material from the defendants to a damages action, to the extent that it is in their possession.  Often highly pertinent information will be contained in leniency statements and accompanying materials submitted by cartelists to the competition authority, in return for which they can receive up to total immunity from financial penalties.  Competition authorities are, naturally, reluctant to hand such information and documents over to third parties, for fear of jeopardising their leniency regimes, which are crucial to the success of their cartel-busting strategies; on the other hand, such information can be very important for victims in proving that they have suffered loss.  So how to reconcile these competing interests?

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Taxi wars in London – does EU law have a role to play?

Christopher Brown

On Thursday of last week the High Court granted Transport for London (TfL) an interim injunction relating to the high-profile raising of the stakes in its battle with Addison Lee (AL), the largest “private hire” (ie minicab) operator (PHO) in London (and, it appears, Europe) over the use of bus lanes.  The application for an interim injunction came in the aftermath of a call by AL’s Chairman, John Griffin, to AL drivers (who are technically self-employed) to flout the restrictions pertaining to bus lanes, which in most cases are reserved, for at least a part of the day, to buses, taxis and bikes – “taxis” meaning black cabs.  In his statement, Mr Griffin said that AL would cover any fines imposed on drivers as a result of driving in bus lanes.

AL’s complaint is that TfL’s rules discriminate against AL and other PHOs when compared with black cabs, putting the former at a competitive advantage.  In legal terms, that sounds like a competition law case, and is redolent of the language used in Article 102(c) of the TFEU (and, in respect of domestic competition law, s 18(2)(c) of the Competition Act 1998) to describe one type of abuse of a dominant position:

“applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage”

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Forthcoming EU law events

Christopher Brown

From time to time we draw to readers’ attention to lectures, seminars, conferences and other events concerned with EU law which promise to be interesting and insightful.  Here are a few events, in chronological order, which have caught our eye recently:

1. Centre of European Law, King’s College London – Lunchtime debate

On 7 March the CEL at King’s will host a debate on the motion: “That the recent EU reforms of antitrust procedures will deliver real improvements in practice”.  Speakers will be Carles Esteva Mosso, Director, Competition Policy and Strategy, DG Competition, European Commission and Nigel Parr, Partner, Ashurst LLP.

2. IALS/UKAEL evening seminar introducing the FIDE rapporteurs and their reports

This event, on 20 March, will showcase the topics being discussed at this year’s FIDE conference being held in Tallinn at the end of May.  As readers may know, FIDE is a biennial conference dedicated to EU law.  It is one of the longest standing conferences on the subject and is very well regarded, in part because of the support given to it by the Court of Justice.  It attracts a large number of judges from the EU Courts and a good number of officials from the Commission.  I can vouch for it, having been one of the UK’s rapporteurs last time out.

As in previous years, there will be three topics for discussion.  Each topic will be the subject of national reports from each of the participating countries and an EU report.  The event on 20 March gives you the opportunity to learn more about the topics and the UK reports, which will be presented by the rapporteurs.  It should be a very informative evening.

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Access to documents under Reg 1049/2001 and private enforcement of EU competition law – the CDC Hydrogene Peroxide judgment

Christopher Brown

As usual, the EU Courts handed down judgment in a number of cases shortly before Christmas. EUtopia law will be posting blogs on one or two of them in the days and weeks to come, including the important judgment in NS. To kick off, I thought I would draw our readers’ attention to the judgment of the GC in Case T-437/08 CDC Hydrogene Peroxide.  It is particularly important for those of us who practise in the field of competition law, but it will also be of general interest to those interested in the EU access to information regime.

CDC Hydrogene Peroxide (CDC) is a Belgian company specifically set up for the purpose of recovering damages on behalf of those who have suffered loss as a result of the Hydrogene Peroxide cartel.  That cartel was uncovered by the Commission, which in 2006 imposed large fines on the perpetrators.  In 2008, CDC sought access to the full version of the statement of contents of the Commission’s case file.  It relied on Arts 2(1) and 11(1) and (2) of Regulation 1049/2001, the legislation regulating access to documents held by EU institutions. Despite the very focussed nature of the request, the Commission refused to grant access, citing first the commercial interests of the undertakings party to the cartel and, secondly, the need to protect the purpose of its investigations, both of which are recognised, in principle, as valid exceptions to the general duty to provide access.  The Commission did, however, provide a non-confidential version of the document.

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