Competition law

Competition law matters are matters of a separate legal discipline that is often underestimated and easily misunderstood, even among experienced legal professionals including legal practitioners.

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Abuse of a dominant position

The abuse of a dominant position may occur frequently in certain industry sectors that are prone to abuse (e.g. in various digital sectors). Very often even important players have difficulties to understand the legal implications of anti-competitive practices and behaviour.  Such conduct may have far-reaching legal consequences such as the invalidity of arrangements and related agreements as well as the risk of liability for fines and damage claims by negatively impacted parties and even versus consumers.

Anti-competitive agreements, decisions or concerted practices

The same is true for anti-competitive agreements, decisions or concerted practices among competitors (so-called cartel offences).

In all these cases one would have to distinguish between scenarios that relate to markets and trade affected between EU member states or even within the European economic area (EEA) or practices that only affect one market and trade within a single country or EU member state.

Fines – invalidity of agreements – damage claims

Many actors are aware that anti-competitive practices or conduct may lead to fairly serious fines that can be issued by the competition authorities and by the courts. However, numerous parties are unaware that related agreements and decisions can be qualified as null and void, and the actors run the risk of being held liable for damages payable to negatively impacted parties.

European competition law

In the case of practices that may affect trade between EU member states or even in the European economic area (EEA) and have as their object of effect the distortion of competition within the so-called ‘internal market’ any activity would have to be assessed under the European competition rules, i.e. Articles 101 & 102 of the Treaty on the Functioning of the European Union (TFEU).  These rules are directly applicable to all economic activities in the European Union and may be invoked before national courts.

Complaint before the European Commission

Furthermore, concerned actors may always consider launching a complaint before the European Commission (Directorate General Competition) against any abuses or cartel practices. The advantage of such complaints is that the complainant does not have to pay any procedural fees for such procedures except for its own fees for the assistance of its legal counsel. The competition authorities however retain their own discretion as to which complaints they will pursue and they may decide on their own priorities.

National competition law

Complaint before national competition authority – court proceedings

In the event of practices, decisions or agreements that only affect trade within one member state it will be more appropriate to address the national competition authority of the country concerned (e.g. the Dutch “Autoriteit Consument & Markt”, the German Cartel Office “Bundeskartellamt”, the “Belgische Mededingingsautoriteit”) or the local court.

Furthermore, parties concerned may consider tipping off certain practices that they have experienced as part of their activity with the relevant competition authorities.

In all scenarios, it is crucial to obtain competent legal advice before taking any steps.

In the event of any involvement in anti-competitive practices we would recommend seeking competent legal advice as a priority and as early as possible. Every case needs to be looked at on an individual basis. There are possibilities to report such conduct and practices.

Leniency applications

Those who take the initiative to signal any own misconduct may apply for a leniency decision or immunity provided that the practices or conduct is reported at an early stage, and ideally as the first party reporting an illegal conduct in a particular case.

We provide advice in this context:

  • About how to avoid or minimise the risks from anti-competitive practices and conduct, inter alia, through compliance & awareness training; assistance in the adjustment of internal processes;
  • About the recommended procedures and steps to be taken in the event of anti-competitive practices that you may have observed;
  • About the possibilities to seek relief, remedies and damages for losses incurred.
  • On the launch of complaints or proceedings against anti-competitive practices.

Key Contacts

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