On December 3, 2020,[1] the Paris Court of Appeals ruled in the Brenntag case that a company challenging its participation in a cartel cannot be held liable simply because other companies did not contest the alleged objections from the FCA. This judgment, issued in the context of a cartel case in the chemical distribution sector, constitutes a turnaround in the case law, although the Court of Appeals, ruling on the merits of the case, ultimately confirmed the fines imposed by the FCA.
The Bonn Regional Court Dismisses Baywa’s Damages Action for State Liability Against the FCO in the Context of the Leniency Program
On December 2, 2020, the Regional Court of Bonn dismissed BayWa AG’s (“BayWa”) action for state liability against the Republic of Germany and the FCO for a breach of the constitutional prohibition of discrimination in the context of the FCO’s leniency program.[1]
Pay-for-Delay Again: Commission Fines Teva and Cephalon €60.5 Million for Delaying Entry of Cheaper Generic Medicine
On November 26, 2020, the Commission fined Teva and Cephalon a total of €60.5 million for entering into a pay-for-delay agreement in relation to a sleep disorder drug. This arrangement is alleged to have helped maintain high prices for several years, to the detriment of patients and healthcare systems.[1]
Presumption of Decisive Influence: Court of Justice Confirms in Pirelli That Parent Companies Will Pay the Price for Errant Subsidiaries
On October 28, 2020, the Court of Justice rejected an appeal by Pirelli & C. SpA (“Pirelli”) against a 2018 judgment of the EU General Court upholding a 2014 Commission decision which held the power cables manufacturer jointly and severally liable, with its former subsidiary Prysmian, for Prysmian’s participation in a bid-rigging cartel. Pirelli’s appeal focused on the concept of parental liability and the Commission’s obligation to explain its reasoning.
TAR Lazio Annuls ICA Decision Concerning Car Financing Cartels
On October 24, 2020, the Regional Administrative Court of Lazio (the “TAR Lazio”) upheld the applications lodged by nine leading captive banks,[1] two further financial institutions holding equity stakes in two of the applicant captive banks, seven automotive groups as well as trade associations Assilea and Assofin, for annulment of the 2018 decision by which the Italian Competition Authority (the “ICA”) imposed on the applicants[2] total fines of approximately €670 million for their participation in a cartel concerning the sale of car vehicles through the provision of financial products.[3]
TAR Lazio Confirms Fines Imposed on Five Companies for Rigging a Tender for Medical Waste Management in the Campania Region
On October 23, 2020,[1] the TAR Lazio rejected the appeals filed by Ecosumma S.r.l., Bifolco & Co. S.r.l., Ecologica Sud S.r.l., Langella Mario S.r.l. (the “Companies”) and Green Light Servizi Ambientali S.r.l. (“Green Light”) against a decision issued by the ICA in 2019, finding that the Companies had coordinated their bidding behavior in a tender for medical waste management in the Campania Region, with the assistance of the third-party consulting firm Green Light.
The French Competition Authority Consults on Commitments Offered by Carrefour/Tesco in Joint Purchasing Agreement Investigation
Following various investigations in the retail sector,[1] the FCA opened another investigation to assess the joint purchasing agreement concluded in August 2018 between Carrefour and Tesco.[2] In this context, in October 2020, the FCA received commitment proposals from the two distributors, redefining the scope of their cooperation on private labels.
Advocate General Hogan Recommends Second Fine Reduction for Breach of Rights of Defense in Steel Abrasives Hybrid Cartels Case
On October 8, 2020, Advocate General Hogan delivered his opinion to the Court of Justice in which he argued the General Court had breached the principle of equal treatment in recalculating the fine imposed in 2014 by the Commission on Italian steel abrasives producer Pometon SpA (“Pometon”). Pometon was fined for participating in an alleged cartel by engaging in price coordination.[1] The Advocate General recommended that the Court of Justice should reduce the fine from €3.9 to €2.6 million.
Council of State Rules on Appeals Concerning ICA’s Decision to Fine the “Big Four” for Bid Rigging in the Context of a Public Tender
On October 6, 2020,[1] the Council of State upheld the appeals filed by the Italian Competition Authority (the “
The General Court Partially Annuls European Commission Decisions Ordering French Supermarkets Dawn Raids
On October 5, 2020, the General Court partially annulled three European Commission decisions ordering French supermarket groups Casino and Intermarché to submit to unannounced inspections.1[1]The General Court found that the Commission did not have sufficiently strong evidence to suspect one of the alleged infringements and had therefore breached the dawn raided companies’ right to the inviolability of the home.