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The Otis Judgement: Another Conformation of the Expansive Scope of Cartel Liability after Kone (C-435/18 Otis) journal article

Martin Gassler

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 1, Page 45 - 48

Case C-435/18 Otis GmbH and others v Land Oberösterreich and others, Judgement of the Court of Justice of 12 December 2019 On 12 December 2019, the Court of Justice (CJ) delivered another preliminary reference ruling that further strengthens private antitrust enforcement in the EU. The CJ followed Advocate General Kokott and ruled that even persons not acting as suppliers or purchasers on the market affected by the cartel can claim damages directly from cartel members. The judgement was delivered upon request by the Austrian Supreme Court (Oberste Gerichtshof) that struggled again – after its request for a preliminary ruling in connection with the same elevator cartel in 2014 that led to the Kone judgement – to apply national tort law that restricted liability of cartel members to only those suppliers and purchasers that are active on the relevant product and geographic market affect by the cartel.

The ECJ’s ICAP Judgment Sends a Clear Message That Procedural Rights Matter (C-39/18 P Commission v ICAP and Others) journal article

Thomas Wilson, Arjun Chandran

European Competition and Regulatory Law Review, Volume 4 (2020), Issue 4, Page 324 - 327

Case C-39/18 P Commission v ICAP and Others, Judgment of the Court of Justice (Third Chamber) of 10 July 2019 The Court of Justice’s judgment in the ICAP case confirms that European Courts will not shy away from annulling Commission decisions due to violations of procedural rights and that there is a general trend towards scrutinizing Commission decisions more closely. The Court’s ruling makes it clear that the Commission must provide sufficient reasons concerning the methodology used when setting the fine for a cartel facilitator. At the same time, it can be expected that the Commission will continue to prosecute cartel facilitators rigorously, as the Court did not take issue with the facilitator doctrine as such.

Hub and Spoke Cartels: journal article

Incentives, Mechanisms and Stability

Rodrigo Londoño van Rutten, Caroline Buts

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 1, Page 4 - 16

A hub and spoke (H&S) cartel entails both horizontal collusive behaviour and the involvement of at least one member operating at a different level of the supply chain. The blend of vertical and horizontal restraints raises both economic and legal questions. This article explores the main determinants for the existence of H&S cartels. Based on twelve cases, we first build a typology and analyse three types of H&S cartels. We focus on the structure of the cartel, the collusive mechanism and the economic incentives of participants. For each type, we thus discuss the elements that are necessary to fix the anticompetitive cooperation. In a second phase, we present descriptive statistics on the number of players, on cartel duration and on the length of procedures. Finally, we present a brief generalised summary for two main H&S cartel types. The purpose is to gain a better understanding of the hub and spoke cartel phenomenon. Keywords: Hub and Spoke Cartels, Antitrust, Cartel Structure, Cartel Stability

The Balance Between Effectiveness and Fundamental Rights Protection in the Law and Enforcement of Article 101 TFEU journal article

Baskaran Balasingham

European Competition and Regulatory Law Review, Volume 3 (2019), Issue 4, Page 363 - 370

Effectiveness and due process require careful balancing in order to safeguard a workable enforcement environment. On the one hand, the legal qualification of collusive conduct has been facilitated to some degree by a broad interpretation of Article 101(1) TFEU and the use of presumptions. On the other hand, the burden and standard of proof, as well as the judicial review in relation to EU cartel proceedings satisfy the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). This article argues that the EU Courts have succeeded in establishing a proper balance between effective cartel enforcement and the protection of fundamental rights. Keywords: Article 101 TFEU, Cartel Enforcement, Effectiveness, Fundamental Rights, Judicial Review

T-419/14 Goldman Sachs: Expanding the Application of Parental Liability in EU Competition Law to Investment Firms journal article

Dimitris Vallindas, Ciara Barbu-O’Connor

European Competition and Regulatory Law Review, Volume 2 (2018), Issue 4, Page 303 - 307

Case T-419/14 The Goldman Sachs Group, Inc v European Commission, Judgment by the General Court of the European Union of 12 July 2018 On parental liability of financial investors in a company found liable of participating in a cartel in breach of EU competition rules and the application of the presumption and the demonstration of actual exercise of decisive influence. Article 101 Treaty on the Functioning of the European Union; OJ 2008 L115/47 and Articles 2 and 23 of Regulation 1/2003 on the implementation of the rules on competition laid down in Articles [101] and [102] of the Treaty; OJ 2003 L1.