Competition Litigation

Transcription

1 Competition Litigation October 2011 BONELLI EREDE PAPPALARDO BREDIN PRAT DE BRAUW BLACKSTONE WESTBROEK HENGELER MUELLER SLAUGHTER AND MAY URÍA MENÉNDEZ

2 Contents Introduction 1 Competition Litigation And Follow-On Actions 2 The Best Friends Approach 10 Firm Profiles 13 Bonelli Erede Pappalardo 13 Bredin Prat 15 De Brauw Blackstone Westbroek 17 Hengeler Mueller 19 Slaughter and May 21 Uría Menéndez 23 Offices 25

3 1. Introduction Business in the 21 st century is multi-jurisdictional, as are the court actions that companies can initiate, or face, in connection with competition law infringements. This brochure:- Describes the types of actions to which companies may be exposed in competition litigation in some key European jurisdictions Identifies the principal factors affecting the choice of jurisdiction in which claimants may seek to bring, or defendants seek to defend, such actions Indicates the extent to which those factors are present in the relevant jurisdictions Describes the experience that each of the firms represented here can bring to such actions, focusing in particular on those that have a multi-jurisdictional dimension. This material draws on our experience and knowledge as a group of European Best Friend law firms made up of the leading independent law firms in Italy, France, The Netherlands, Germany, the United Kingdom and Spain. We enjoy an unparalleled reputation for legal excellence and service to clients and are well-known and highly respected by the business, financial, regulatory and judicial communities. As firms, we have worked closely together for many years and the links between us are based on strong personal relationships. We operate through deep, non-exclusive networking relationships among ourselves and have established similar close links with other leading independent law firms worldwide. Further information on how these arrangements work to the benefit of clients, and details on each of the firms, can be found in The Best Friends Approach section below, along with contact details. Some large multinational corporations prefer to shop locally. They say bigness equals blandness, and that branch offices vary in quality and the calibre of partners is not consistent. These critics favour the best friends arrangement where top domestic firms in different countries work together closely to give the client the best local service. Financial Times 1

4 2. Competition Litigation And Follow-On Actions Private antitrust litigation is an increasingly prominent feature of the legal landscape within the European Union. This is particularly the case for claims for damages that follow-on from infringement decisions by the European Commission and national competition regulators within Member States. For companies under investigation by the European Commission and / or national competition regulators within the European Union (and indeed from further afield, such as by the US Department of Justice), the potential exposure to private claims for damages in national courts and the management of this risk have become a top priority. Regulatory fines resulting from infringements are often only the beginning of the exposure. Collective redress is firmly on the policy agenda of the European Commission with private enforcement, including effective and full compensation for consumers, complementing the regulatory regime. In 2008 the EU Commission published Green and White papers on consumer collective redress, to which the European Best Friend law firms made a co-ordinated joint response 1. In 2011, the EU Commission published a public consultation aimed at identifying common legal principles on collective redress and how they might fit into all Member States legal structures and thus form the basis of any possible initiative for collective redress in EU legislation. The Best Friends have sought to influence this process through their contributions to the response made by the European Competition Law Forum, of which they are each members 2. Several Member States have already enacted legislation that will facilitate and probably prompt more group damages actions being brought by consumers or consumer representatives. Combined with the emergence of US-style plaintiff law firms on to the European scene introducing innovative fee arrangements (often 1 Damages Actions for Breach of the EC Antitrust Rules: Comments on the Commission s White Paper, 30 June Towards a Coherent Approach to Collective Redress: Comments of the European Competition Lawyers forum on the European Commission Staff Working Document, 30 April

5 resulting in effectively risk free litigation for plaintiffs), such measures will further enhance the ability of consumers and consumer representatives to bring group claims against corporate defendants, thereby increasing their exposure. Follow-on and stand-alone damages actions A decision by the European Commission in respect of an investigation will effectively establish liability for the relevant competition law infringement identified in the decision. A decision materially assists any claimant for damages against a defendant as that claimant will not need to prove that a competition law infringement occurred. Follow-on claims are therefore the form of proceedings a defendant is most likely to face as the result of a Commission decision. There may also be a risk of a stand-alone damages action, at any time, but in particular following a Commission decision. The publicity attached to a decision might cause customers to consider whether there has been cartel conduct in jurisdictions or in product markets not covered by the decision. However, in order to pursue a claim in respect of any such conduct, the claimants would have to prove that a cartel infringement had in fact taken place, which entails a significantly higher degree of risk and cost for the claimant. Where can a claimant bring an action? When a damages claim is brought against EU domiciled cartel members for alleged anti-competitive conduct and cartel practices, EU Council Regulation 44/2001 (the Brussels Regulation) will apply in the courts of all Member States so far as concerns the determination of jurisdiction. Under that Regulation the default position is that the defendant should be sued in the court where it is domiciled. As a general rule, all proceedings in respect of the same matter will be heard in the same jurisdiction, with the court first seised of the matter taking jurisdiction and others having to stay proceedings until that court has ruled. A company is domiciled where it has its statutory seat, its central administration or its principal place of business. This means that a company can have several domiciles. In addition there are several exceptions to the domicile rule: for example, a defendant could be sued in the jurisdiction of domicile of another defendant, a jurisdiction where the infringement occurred or possibly a jurisdiction specified by supply agreements with relevant customers. 3

6 In some circumstances, a defendant may decide that it would be beneficial to bring a pre-emptive challenge (for example, an application for declaratory relief) as a delaying tactic. This is sometimes known as the Italian Torpedo. The intended effect of such a strategy is that other Member State courts must stay proceedings involving the same cause of action until the court first seised has ruled as to its jurisdiction. However, deployment of this strategy has to weigh a number of risks including: using what is now widely recognised as a delaying tactic; suing customers who may consider themselves victims of the defendant s conduct; and highlighting the defendant as a potential target for litigation. There is also a need to identify potential claimants and ensure that proceedings are initiated in the preferred jurisdiction against those claimants. The courts of the Member States are also now increasingly prepared to explore mechanisms to overcome this tactic. If the defendant is domiciled outside the EU and the EFTA states, the national courts of the Member State in which the claim is brought would determine jurisdiction under their own rules. What factors should be considered in relation to choice of jurisdiction? Whilst the jurisdiction for claims can sometimes be dictated by the default position described above, if the litigation is multi-jurisdictional claimants will often have a wider discretion to consider the benefits of one jurisdiction over another for bringing claims. However, corporate defendants will also have to consider in which jurisdiction(s) they would be better placed to defend such claims and / or bring preemptive challenges. There are a number of important differences between the legal systems in Member States. A defendant will therefore wish to evaluate the relative merits of defending litigation in various European jurisdictions. The following is a non-exhaustive list of factors to take into account when developing a litigation defence strategy, together with non-exhaustive examples of recent practice. Note that this is a developing area and specific advice should be sought in relation to any specific case. Is the limitation period long or short? The period in which claims can be brought following the date on which the cause of action accrued can be much longer in certain jurisdictions, thereby potentially increasing the life of the litigation and the claimant pool. In Spain, by way of 4

7 example, the limitation period can be as short as one year from the date on which the injured party becomes aware of the harm suffered, whereas in most other European jurisdictions the corresponding period is in the range of 5 to 6 years. In Italy, the five-year limitation period starts from the time when the cause of action arose or, alternatively, from the time when the claimant became aware of the tort and the identity of the defendant(s) (e.g. when the Italian Competition Authority / EU Commission s decision became public). A similar situation applies in The Netherlands to damages claims (whether brought on the basis of tort or non-performance), although the limitation period may still not be considered to start if the claimant was unable to institute proceedings earlier. How lengthy are the proceedings likely to be? A lengthy jurisdictional process (i.e. from claim to final judgment) can be beneficial for defendants who wish to delay any binding decision being handed down. This can act as a deterrent to the bringing of any claim, but it is also likely to increase costs on both sides and may create an undesirable level of uncertainty. Defendants will have to take into account their commitment to potentially very lengthy and expensive litigation (and all of the resulting factors from such litigation, such as continuing adverse publicity and the making of provisions in their annual accounts). Italy is often considered a promising forum for defence tactics because of the lengthy nature of its court processes: however, there is a recent perception that the Italian courts are dealing more swiftly with actions that appear to have been brought to cause delay. In Spain there are no specific provisions for damages claims before the courts on the basis of antitrust infringements, and proceedings are generally considered to be relatively long. Are costs recoverable? Although costs are generally payable by the losing party (as is the case in England, France, Germany and the Netherlands), in Germany and the Netherlands there are statutory limitations on the level of fees that are recoverable. In Italy, the general rule is that the successful party is entitled to recover costs from the losing party. However, the court may order both parties to pay costs when the parties succeed on certain claims, but fail on others. 5

8 What mechanisms to encourage settlement are available? Procedures that encourage parties either to resort to alternative forms of dispute resolution, such as mediation, or that penalise a party that fails to accept a reasonable settlement offer, may be attractive to claimants who attach more importance to realising some value from the claim at the earliest point in time than to the absolute level of quantum recovered. In England, by way of example, if an offer to settle is made but is not accepted by the other side, then the other side will be taking a significant risk regarding costs and interest, as the court will penalise the non-accepting party if the matter proceeds to trial and that party subsequently fails to beat the offer that was made. In Italy there is no requirement to attempt or even consider mediation under national law. However, the court, whether at first instance or on appeal, may invite the parties to consider mediation. The proceedings are stayed if the parties agree to attempt to mediate. The parties are also entitled to request a conciliation hearing before the court and, if in such a hearing the parties eventually settle the case, the document detailing the terms of the settlement may be enforced as a judgment by the court. Is there a specialist / experienced court? This may increase the attractiveness of some jurisdictions to claimants because of a perception that those courts will be better equipped to assess the loss capable of flowing from a competition law infringement. For example, the courts in England, Germany, Italy and The Netherlands have experience of competition damages actions and are perceived to be comparatively efficient. In France, eight specialised tribunals have exclusive jurisdiction over antitrust cases at first instance, and the Paris Court of Appeal then has exclusive jurisdiction over appeals from their judgments. Is the defendant exposed to collective redress (class / representative / group) actions? This turns on whether the jurisdiction in question allows, or is likely to allow, claimants affected by the alleged cartel to group together their claims, thereby increasing the potential exposure for corporate defendants (as is the case in the US); whether any class action procedure in the relevant jurisdictions is efficient; and whether any such procedure operates on an opt-in or opt-out basis. 6

9 Germany has been the scene of a number of actions which are likely to have been influenced by the availability of the mechanism for acquiring and collating third-party claims, in particular by means of claims assignment to professional litigants. The Netherlands is becoming increasingly recognised as a favourable forum for settlement of class actions. The Dutch Act on Collective Mass Settlement allows a representative body to settle with some or all of the defendants and for that settlement to be declared as binding on all interested persons by the Court of Appeal, subject to opt-out. In England, procedures exist by which consumer representative organisations can bring collective follow-on actions on an opt-in basis. A recent attempt in the English courts to broaden the ability of claimants to bring representative proceedings, where more than one person has the same interest in a claim, was unsuccessful. In France, the legal system is not conducive to class actions although there are moves afoot to introduce some form of procedure (likely to be on an opt-in basis). In Italy, consumers and end-users may bring a collective redress action for the protection of identical individual rights violated by anticompetitive conducts. Although a class action system is not available for non-consumers, they can still act jointly against the same defendants. In Spain, consumers or end-users may bring a claim for the protection of collective interests, which may include claims on behalf of identifiable but not yet identified consumers, whilst non-consumers who have suffered a loss as a result of anticompetitive behaviour can bring a joint claim by granting powers of attorney to the same lawyers. Is the passing-on defence available? This is the ability of an alleged cartelist to argue that liability to a claimant should be eliminated (or reduced) because the claimant has sold the relevant product on to a third party downstream without itself absorbing any or all of the loss arising as a result of the cartel pricing (i.e. the claimant has passed on the loss to its customer). The availability of this defence has yet to be decided in most Member States. The German Supreme Court recently held that the quantum of a claim may be reduced to the extent that it has been passed-on and it is widely thought that the English 7

10 courts are likely to accept the defence as a result of the strictly compensatory nature of damages and the stringent requirement on claimants to prove their loss. In Italy, the case law on the passing-on defence is scarce. In the few cases in which the courts have ruled on the argument, they have allowed it only where those who have suffered damages have standing to bring an action. If a claimant has passed on the entire overcharge and has not suffered any further harm, he lacks standing. In The Netherlands it could be argued, on the basis of case law of the Dutch Supreme Court in other areas of law, that a passing-on defence is not allowed. Who does the disclosure regime favour? Even where liability is established by means of a prior decision, it is generally in the claimants interest to gain sight of the defendant s relevant documents to prove causation and quantum (for example, the level of any overcharge caused by a cartel). The burden and costs of such a disclosure exercise can often act as a pressure point to potential claimants. In some cases defendants may also be motivated to favour regimes that have a developed disclosure regime. In defending an action, perhaps by claiming that loss was passed further down the supply chain, the defendant may want the claimant to disclose all relevant documentation for the purpose of showing that any loss suffered was minimal. A general right of disclosure of another party s documents exists under English law, and as a result there is a perception that the English courts can be favourable to claimants. In a number of European civil law jurisdictions, however, disclosure tends to be more limited. In Italy, there is no discovery regime in the common law sense: each party produces the evidence on which it intends to rely, but there is no duty to disclose documentation that may undermine one s own case or advantage the other party s case. However, a party may request the court to order the other party or a third party to produce specific documents. Additionally, a court-appointed expert may be given the power to carry out inspections and obtain information from third parties. 8

11 In The Netherlands, some disclosure is provided for, subject to certain conditions. The Dutch Procedural Act provides that a party to an action (including in tort) that has a legitimate interest can demand disclosure of certain records concerning a legal relationship in which that party (or any of its predecessors) was involved. However, disclosure can be restricted on the grounds of overriding interests of the counterparty, or that disclosure is not necessary for the administration of justice. Following a ruling of the European Court of Justice, finding that applications for immunity or leniency and supporting documents cannot be automatically placed beyond the reach of claimants in follow-on litigation, rules on disclosure under national systems of law will need to be considered even more carefully by both claimants and defendants. Which jurisdictions might most favour a claimant versus a defendant? As a result of the mix of factors described above, it is not possible to make general judgments about where claimants will choose to sue, with much depending on the preferences and priorities of the initial claimants. For example, a consumer (or a consumer representative organisation) contemplating commencing proceedings may be more concerned with the availability of class action proceedings, whereas a corporate claimant may be more interested in whether or not the passing-on defence is available. 9

12 3. The Best Friends Approach Who we are We are the leading independent law firms in Italy, France, The Netherlands, Germany, the United Kingdom, Portugal and Spain. Together we provide a pan-european service to clients that is unique in its quality, depth and scope. We have large, experienced teams of specialised competition lawyers in Brussels where we share office premises and offer state-of-the-art client meeting rooms and training facilities as well as in our respective home jurisdictions. This gives us a critical mass of legal resources in each major national jurisdiction and enables us to provide immediate assistance to clients in response to urgent and resourceintensive situations, for example, dawn raids or extensive information requests and leniency applications in several Member States and at EU level. Outside Europe, we have a local presence in Latin America through Uría Menéndez s network of offices in Brazil, Mexico, Argentina, Chile and Peru, and a local presence in Asia through Slaughter and May s Hong Kong office and the adjoining Beijing offices of De Brauw Blackstone Westbroek, Slaughter and May and Uría Menéndez. We have also established similar close links with other leading independent law firms worldwide, in particular in jurisdictions such as Japan, South Korea and Taiwan. These enable us to assist clients in identifying and selecting appropriate counsel wherever necessary: we are not in any way limited to those jurisdictions in which we have an office. For each case, we assemble an integrated team which:- Is managed from the jurisdiction which is most effective and convenient for the client Works together as a single unit under a single leader with clear lines of responsibility Consists of the highest quality people with the right legal and project management skills Comprises professionals who know and trust each other and regularly work together Is culturally sensitive. 10 Clients were full of praise for the efficiency of the best friends network. Chambers Europe

13 Our competition litigation practice Working together to co-ordinate cross-border antitrust strategies, we represent clients across the full range of competition proceedings. Major cases where the firms acted as an integrated team or in close cooperation include:- Defending British Airways against claims for damages arising out of an alleged cartel in the air cargo market. All of the European best friend firms are acting in this case as an integrated team. Proceedings to date have included a successful action to strike out attempts by the claimants to introduce US-style class actions into the English legal system. Representing Unilever in resisting claims for damages and injunctive relief by Mars following an adverse European Commission ruling in relation to Unilever s policy of freezer cabinet exclusivity in the impulse ice cream market. Slaughter and May acted jointly with Hengeler Mueller, Bonelli Erede Papparlardo and Mannheimer Swartling in successfully defending these claims. Bredin Prat also successfully represented Unilever in related administrative proceedings in France. Following the initiation of litigation by Mars in multiple European jurisdictions, Unilever and Mars ultimately settled the case through a process of mediation. Advising Philips in connection with two substantial follow-on damages claims brought by Nokia against Philips and certain of its subsidiaries (as well as other alleged cartelists) in the English Courts arising out of the LCD and CRT cartel investigations being conducted by the European Commission. The UK litigation has taken place against the backdrop not only of the European Commission s CRT and LCD investigations, but also of a US class action lawsuit and various other US litigation brought by Nokia and others against Philips entities. This has necessitated a multi-jurisdictional approach and strategy by the legal team, which includes De Brauw and Slaughter and May. Acting for Unilever in the context of a number of cartel investigations in home and personal care markets, both at European and national levels. These proceedings have to date involved one of the first settlements concluded under the EU cartel settlement procedures and a negative decision in Italy that is now under appeal. In The Netherlands, the case was closed after the alleged cartel participants had replied 11

14 to a statement of objections, with a public statement by the national competition authority that it had not found sufficient evidence of an infringement. Bonelli Erede Pappalardo, Bredin Prat, De Brauw and Slaughter and May have cooperated closely in defending Unilever in these investigations. In addition, the Best Friend firms have been involved, whether individually or in cooperation with one another, in damages claims against the European Commission arising out of merger decisions annulled by the European Courts, appeals against Commission decisions to the European Courts, appeals to national courts against decisions of national competition agencies and regulators, and damages claims before national courts. Further details of some of this experience can be found in the profiles of the individual firms that follow. Undoubtedly the best friends occupy a luxurious position. The quality of advice they offer, the client base they serve and the respect held for them in the market shouts volumes. Even among the international players there is a sense that individually they provide the benchmark against which others must measure their success. Global Counsel 12

15 4. Firm Profiles Bonelli Erede Pappalardo Bonelli Erede Pappalardo enjoys a first class reputation for its competition law practice in Italy and at EU level. The team of 27 lawyers, based in Brussels, Rome, Milan and London, has extensive experience in counselling and representing blue chip domestic and international companies in both contentious and non-contentious matters regarding cartels and abuse of dominant position before the national competition authority and the European Commission as well as before national and European Courts. In particular, the team has developed a significant expertise representing prominent firms of the telecommunications and industrial construction materials sectors in standalone and follow-on actions for damages disputes before various Italian Courts. Highlights include:- Defending Armacell, the worldwide insulation products manufacturer, in a standalone Euro 30 million damages claim by a competitor alleging an abuse of dominant position by predatory pricing. This action was filed as a consequence of our client filing a claim for violation of trade secrets before the US courts against the plaintiff. Both cases were successfully settled based on an agreement negotiated by our team. Defending Telecom Italia in a Euro 900 million damages claim filed before the Court of Milan by a competitor as consequence of an investigation opened by the national competition authority alleging an abuse of dominant position by margin squeeze. The investigation was closed with the acceptance of commitments proposed by Telecom Italian (and therefore with no assessment of its liability). Defending Telecom Italia in a standalone Euro 120 million damages claim by a competitor alleging an abuse of dominant position for price discrimination in the market for mobile termination services. The civil proceeding is ongoing. Defending RDB, an aerated autoclaved concrete manufacturer, in a civil proceeding undertaken by a competitor seeking damages for an alleged antitrust violation. The Italian competition authority held RDB liable for abusing its dominant position by applying predatory pricing and abusive rebates. 13

16 In addition, the team boasts expert assistance on aspects of competition law in the structuring of mergers and joint ventures and all phases of notifications in relation to mergers and acquisitions as well as in State aid cases. Claudio Tesauro Massimo Merola claudio.tesauro@beplex.com massimo.merola@beplex.com Luca Radicati di Brozolo luca.radicati@beplex.com Bonelli Erede Pappalardo s team comprises extraordinarily competent and skilled lawyers, whose knowledge of competition law is applicable not only in Europe but also in several jurisdictions around the world. (Legal ) 14 Tradition and quality are keywords at this firm, where the competition team is consistently engaged in the most high profile matters in the sector. (Chambers Europe, 2010)

17 Bredin Prat Bredin Prat s Competition Group, led by five partners (Robert Saint-Esteben, Hugues Calvet, Marc Pittie, Olivier Billard and Marie-Cécile Rameau) and supported by one counsel in Brussels (Valérie Landes) and 13 associates located in Paris and Brussels covers both French and European competition law, and includes representation of French and international clients in an advisory capacity as well as in litigation matters. The Group is regarded as the most sophisticated team for merger control cases and, due to the experience of its partners, has developed an outstanding practice in antitrust litigation matters (cartels, abuses of dominant position, State aid cases, private damages, indemnity claims), both at French and at European levels. The Group acts as adviser on specific competition law matters for numerous large multinational corporations and business associations and works closely with the firm s M&A team on large transactions requiring approval under European, French or multi jurisdictional merger control regulations. The Group also advises clients on State aid issues, as well as on the deregulation of industries in the telecom, energy and transport sectors. Bredin Prat has an extensive experience in private antitrust litigation. Recent work in this field includes:- Defending France Télécom against its competitors claiming for damages before the Paris commercial court following the European Commission s decision on predatory pricing in the market for consumer broadband Internet access. Defending Orange France before the Paris commercial court against consumers seeking damages following the decision of the French competition authority in the mobile cartel case. Representing another French incumbent before the Paris commercial court against several competitors alleging having suffered from abuses of dominant position and seeking damages; all these cases were eventually settled. Representing Aéroports de Paris before the administrative courts against a customer claiming compensation following a decision of the French competition authority in a case of refusal to supply. The Bredin Prat Brussels office is led by Marc Pittie. 15

18 Robert Saint-Esteben Hugues Calvet rse@bredinprat.com huguescalvet@bredinprat.com Marc Pittie Olivier Billard (Brussels) (Paris) olivierbillard@bredinprat.com marcpittie@bredinprat.com Marie-Cécile Rameau mariececilerameau@bredinprat.com 16 Bredin Prat garners many of the most high-profile mandates for merger control and antitrust. The team as a whole or individually is superb, delivers a personalised and creative service and has a business understanding that goes beyond legal matters. Legal 500, 2010, France

19 De Brauw Blackstone Westbroek De Brauw s Competition Group is active across the full range of both EU and Dutch competition law. Alongside its leading merger control practice, the Group is well known for its outstanding cartel and abuse of dominance litigation practice, benefiting from its early involvement in numerous landmark cases handled by the European Courts in Luxembourg and by Dutch administrative and civil courts. It plays a coordinating role for its clients in national and international cartel investigations and litigation. In litigation concerning competition issues, the Competition Group works closely with De Brauw s Litigation Group, which is one of the largest in The Netherlands. De Brauw is involved in various cartel investigations and cartel damages litigation. Recent work in this field includes:- Representing TenneT, the operator of the Dutch electricity grid, in its steps in The Netherlands to recoup losses following the European Commission s decision in the switchgear cartel case. Representing beer brewer Grolsch in its successful appeal against the Euro 32 million fine imposed by the European Commission for its alleged participation in a cartel between Dutch brewery companies. Whilst its competitors Heineken and Bavaria were able to win only a slight reduction in their fines, the appeal by Grolsch resulted in annulment of its fine. Successfully defending Philips against the allegations by the European Commission that it was engaged in the global LCD screen cartel. After Philips presented its defence against the Statement of Objections, the Commission decided to close the file. De Brauw also co-ordinates the global defence for Philips in various ongoing cartel investigations into (CRT) television and monitor tubes. Representing a leading truck manufacturer in the cartel investigations conducted by the European Commission into suspected infringements. The UK competition authority initiated a separate investigation into a cartel between truck manufacturers. De Brauw also represents parties in civil litigation relating to the alleged cartels in elevators, bitumen and bleaching. 17

20 Erik Pijnacker Hordijk Jolling de Pree +31(0) (0) Marnix Leijten Daan Beenders +31(0) (0) De Brauw impresses market observers with its fantastic service and excellent command of competition law. The substantial team is lauded for its exceptional expertise on a wide variety of competition and European law aspects, from merger control to litigation. Chambers Europe,

21 Hengeler Mueller Hengeler Mueller s Competition Group is one of the largest in Germany. It has seven partners (Jochen Burrichter, Christoph Stadler, Thorsten Mäger and Markus Röhrig in Düsseldorf, Horst Satzky in Frankfurt and Hans-Jörg Niemeyer and Alf-Henrik Bischke in Brussels) and 15 associates. Alongside its leading merger control practice, the Group is involved in a number of competition disputes, including settlements and follow-on actions regarding cartel damages litigation. Competition and litigation specialists form focussed teams dealing with such matters. Highlights include advising:- Akzo Nobel in defending damage claim proceedings initiated by CDC against members of the bleaching cartel before the Regional Court of Dortmund. These are pilot proceedings in that the dispute not only relates to a matter concerning the German market but also has a Europe-wide context, leading to numerous (as yet unresolved) legal questions in particular on jurisdiction and applicable law. the TV marketing subsidiary of RTL against antitrust damage claims initiated by a number of German TV companies (including MTV, RTL 2, TM TV) before the Regional Courts of Munich and Düsseldorf following an administrative fine decision of the German Federal Cartel Office relating to abusive rebates. Pilkington in defending antitrust damage claim proceedings initiated by an insurance company against members of the carglass cartel before the Regional Court of Düsseldorf. a company involved in the landmark Pfleiderer case before the European Court of Justice and German courts on the question of access to file concerning leniency statements sought by a customer as a potential plaintiff in damage claims proceedings. 19

22 Dr. Matthias Blaum Dr. Christoph Stadler +49 (0) (0) Dr. Alf-Henrik Bischke Dr. Thorsten Mäger +32 (0) (0) The highly talented and tenacious team at this German powerhouse... Chambers Global, 2009, Belgium 20

23 Slaughter and May Slaughter and May s Competition Group, headed by Philippe Chappatte, has an internationally recognised team of specialist lawyers based in London and Brussels. It has extensive experience of contentious work under the cartel, abuse of dominance, State aid and merger control laws; in particular, leniency applications, criminal liability for cartels, settlements, appeals and follow-on actions for damages. The firm s Competition Litigation Group consists of cross-disciplinary specialists from the firm s Competition and Dispute Resolution groups who work closely together on competition disputes, forming a formidable, integrated team of experts able to deal with all aspects of a case innovatively, seamlessly and efficiently. Slaughter and May regularly represents clients in appeals against decisions of competition and regulatory authorities as well as in competition litigation before the English and other national courts, the General Court and the Court of Justice, acting in ground-breaking competition litigation before the English and European Courts. Highlights include advising:- Airtours (now MyTravel) in securing the first ever reversal by the General Court of an EU Commission merger prohibition decision; this led to the first ever claim for damages against the Commission for loss suffered as a result of a flawed decision. SonyBMG in the Impala case which challenged the EC s clearance of the SonyBMG joint venture; the Court of Justice dismissed the appeal. Coats both in relation to appeals to the European Courts against negative European Commission decisions relating to the threads and fasteners markets and in relation to claims for compensation arising from the fasteners decision. Yale in its defence of a claim for damages based on an abuse of dominance claim, which settled on terms favourable to Yale. The Competition Litigation Group comprises eight partners and is headed by Michael Rowe. 21

24 Michael Rowe Philippe Chappatte +44 (0) (0) Jonathan Cotton Ewan Brown +44 (0) (0) Christopher Wright +44 (0) Slaughter and May is simply outstanding. Clients are uniformly impressed by the firm s gold-class service, intellect, results, and high-quality associates. Legal 500, the firm offers a seamless and localised service in many jurisdictions thanks to its prized best friends approach. Chambers Global 2011

25 Uría Menéndez The EU and Competition Law Group of Uría Menéndez comprises three partners (Jaime Folguera, Edurne Navarro and Alfonso Gutiérrez), four counsel and nine associates based in Madrid, Brussels, Barcelona and Lisbon (where the team is led by Joaquim Caimoto Duarte). It also has one senior lawyer of counsel (Fernando Lorente, a former judge with a longstanding practice in energy and competition law, in particular in litigation cases). The legal services provided by the Group encompass all areas of EU, Spanish and Portuguese competition law including, in particular, merger control and cartel cases, abuses of dominant position as well as litigation in the State aid field and private damages. Highlights in litigation include advising:- Iberdrola in (1) the damages claim lodged by a supplier of electricity after an abuse of dominant position had been declared by the Spanish Competition Authority, which was finally rejected; and (2) in the compensation claim, also rejected, lodged by a co-generation plant / undertaking for an alleged abuse of dominant position affecting the electricity supply market. Antena 3 Televisión in the damages claim filed against the Professional Football League for an abuse in the awarding of rights for broadcasting matches, which was upheld at first instance and subsequently rejected. Repsol in several lawsuits against the oil company seeking contractual nullity and damages for alleged infringements of the competition rules concerning its distribution chain of oil products, which were finally rejected. Cepsa in several lawsuits seeking contractual nullity and damages for alleged infringement of article 101 TFEU concerning its distribution chain / network of oil products. 23

26 Dr. Edurne Navarro Alfonso Gutiérrez env@uria.com agh@uria.com Fernando Lorente flh@uria.com Uría Menéndez is clearly one step ahead. It offers excellent client service and the lawyers are extremely knowledgeable and professional. Chambers Europe 2011, Spain 24

27 Offices Bonelli Erede Pappalardo ( Milan Genoa Rome Brussels London Bredin Prat ( Paris Brussels De Brauw Blackstone Westbroek ( Amsterdam London New York Beijing Brussels Hengeler Mueller ( Berlin Düsseldorf Frankfurt Munich Brussels London Slaughter and May ( London Brussels Hong Kong Beijing Uría Menéndez ( Barcelona Bilbao Lisbon Madrid Porto Valencia Brussels London Warsaw New York Buenos Aires Lima Mexico City Chile São Paulo Beijing cjcw31.indd

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