United States: European Competition Law Newsletter — December 2014

Last Updated: December 5 2014
Article by Matthew Hall

EU Antitrust Damages Directive Ushers in New Era in Competition Litigation

On 10 November 2014, the EU Council of Ministers (representing the EU Member State governments) formally adopted the EU Antitrust Damages Directive. This is a hugely significant event in EU antitrust and is likely to mark the beginning of an era of increased levels of private litigation seeking damages for infringements of EU competition law.

The Directive requires Member States to implement into national law certain procedural and substantive rules concerning actions in their national courts for damages arising out of infringements of EU competition law. This includes damages cases brought by customers following European Commission cartel decisions but is not restricted to such situations. The rules required by the Directive will also cover, for example, actions for damages arising out of an abuse of a dominant position or arising out of an anti-competitive agreement such as an exclusive supply agreement.

Although damages claims relying solely on infringements of national competition law in the EU are not covered, it is inevitable that the Directive will impact those too. Companies would be well-advised once again to ramp up their competition compliance programmes EU-wide so as to take account of the increased risk of private damages claims.

Once formally signed, the Directive will be published in the EU Official Journal and will enter into force 20 days after its publication. EU Member States will have two years to implement it, but its terms are already being heavily referred to and debated before courts in private damages claims across the EU.

Compliance Warning: Your Internal Documents Must Match the Story

Two companies involved in an acquisition in the EU appear to have narrowly escaped a fine for providing misleading information to the European Commission (EC). The case provides a reminder that internal documents are very important in merger (and general antitrust) investigations in the EU. Documents must be carefully managed, and parties need to be prepared for rigorous questioning if their "story" does not match the internal contemporaneous record.

The case arose out of a notification to the EC under the EU Merger Regulation of a transaction under which Ahlstrom Corp. and Munksjö AB transferred their label and processing business to a new company. In February 2014, the EC sent a Statement of Objections (SO, a preliminary statement of case) to the parties indicating that they had provided misleading information in the course of the notification. The alleged misleading information was market share estimates submitted in the notification, which differed significantly from the companies' pre-existing internal documents.

The companies were able to demonstrate that they had valid reasons to reassess their internal market estimates shortly before the notification. The EC accordingly dropped the case and the parties avoided a fine. However, there may well have been other indirect costs — for example, reputational damage and external legal costs, not to mention the internal effort needed to deal with the EC's concerns.

EU Advocate General Provides Guidance on SEP Enforcement

On 20 November 2014, an EU advocate general (AG) provided important guidance on the application of competition law in the EU to the enforcement of standard essential patents through injunctions. The principles outlined in the opinion, in which the AG advised the EU's highest court, the European Court of Justice (ECJ), are relevant to any industry in which standards are used.

The case arose out of an action for infringement of a standard essential patent (SEP) in the telecoms sector, brought by Huawei against ZTE before the Düsseldorf Regional Court, Germany. Huawei sought an injunction stopping the alleged infringement, but ZTE in reply argued that this was an abuse of a dominant position, since ZTE was willing to negotiate a licence. The German court referred the issue to the ECJ for its view, which would be binding on the court.

The AG answered the question by saying firstly that the fact that a company owns an SEP does not necessarily mean that it holds a dominant position. This must be determined on a case-by-case basis. Subject to this, in the AG's view, where the proprietor of an SEP has made a commitment to a standards body to grant third parties a licence on fair, reasonable and non-discriminatory (FRAND) terms, it constitutes an abuse of a dominant positionfor that proprietor to seek an injunction against a company that has infringed the SEP. This assumes that the third party has shown itself to be objectively ready, willing and able to enter into such a licensing agreement.

The AG went on to set out the actual steps that in his view an SEP holder must take before seeking an injunction and the corresponding obligations of the third party. This is a very important case for patent litigation and negotiations concerning SEPs, and the eventual judgment of the ECJ itself will be closely watched.

UK Judgment on Limitation Period in Competition Damages Cases

On 30 October 2014, the UK (English) High Court handed down a judgment considering limitation issues in the context of a competition damages claim. This is the first time the issue has been dealt with by a UK court, and it is now the leading case on the point in the UK.

The case forms part of the UK litigation against Visa for damages arising from breaches of EU and UK competition law in relation to Visa's multilateral interchange fees. Visa had sought strikeout/summary judgment for the part of the claimant's actions relating to infringement of competition law more than six years (being the normal limitation period) before the date on which they brought the actions (in 2013).

Under UK law, where any fact relevant to the claimant's right of action has been deliberately concealed from it by the defendant, the period of limitation does not begin to run until the claimant has discovered the concealment or could with reasonable diligence have discovered it.

The issue was whether the public decisions and pronouncements of the EC and UK Office of Fair Trading (OFT) before 2007 meant that the claimants knew or could with reasonable diligence have identified information sufficient to establish a prima facie case.

The judge decided that indeed various EC and OFT documents and an EC decision relating to the issues provided enough information. He did not agree that the case, being a competition damages claim, deserved special treatment. The judge did, however, distinguish true cartel cases, so the "deliberate concealment" exception is very much alive and well for damages claims relating to those.

Nevertheless, in all competition damages cases (including those relating to secret cartels), it is clear that claimants need to be aware of publicly available (or reasonably available) information, because when this comes out the limitation period could start to run.

Additional European competition law news coverage can be found in our news section.

U.S. Antitrust

We publish a newsletter and bulletins on U.S. antitrust developments, as well as regular publications on numerous other topics.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.