Three sets of much awaited judgments are expected this
month from the Court of Justice of the European Union.
On 9 June 2016 - 3 judgments of the Court of Justice in
relation to the Spanish bitumen cartel
CEPSA,PROAS, Repsol Lubricantes, are separately
appealing the judgments of the General Court which had upheld the
Commission's 2007 decision in the Spanish bitumen cartel.
Judicial proceedings in these cases have been pending since
2007, with the Commission investigation having started in 2002.
In the CEPSA and PROAS appeals, the Court of Justice will
deal mainly with arguments relating to the calculation of
the fine and the arguably excessive duration of the proceedings.
In the Repsol appeal, the Court of Justice will consider in
particular whether Repsol should have benefitted from a greater
reduction in fine under the Leniency Notice. Focus will be
placed on the interpretation of the requirements under the 2002
Leniency Notice to qualify for a reduction in fine.
On 16 June 2016 - 2 judgments of the Court of Justice in
relation to the calcium carbide decision
In their appeal, Degussa and AlzChem are arguing that the
General Court's judgment upholding the Commission's
decision should be annulled in so far as it applies to them.
The main ground of appeal revolves around the issue of
parental liability for the acts of a subsidiary. The Court of
Justice is expected to clarify the circumstances whereby parental
liability resulting from a presumption of exercise of decisive
influence (where the parent holds all, or almost all, of the
shares in the subsidiary) can be reversed. In this instance,
Degussa and AlzChem argue that their 100% subsidiary, SKW,
unilaterally participated in the calcium carbide cartel against
their specific instructions, thereby reversing the presumption that
they exercised decisive influence over SKW. In its opinion, the Advocate General considers that
the appellants failed to reverse the presumption of parental
liability and proposes to reject the appeal. If followed by
the Court of Justice, the judgment will confirm the very high
burden of proof needed to reverse this presumption.
SKW has also lodged a separate appeal against the General Court's
judgment upholding the Commission's calcium carbide decision.
The Court of Justice's judgment will focus in particular
on whether the Commission infringed SKW's right to a fair
hearing during the course of its investigation.
On 28 June 2016 - 2 judgments of the General Court in relation
to the Telefonica/Portugal Telecom decision (finding that a
non-compete clause infringes Article 101 TFEU)
In these much-awaited judgments, the General Court will decide
whether to uphold the Commission's decision finding that a
non-compete clause in a share purchse agreement (by which
Telefonica acquired a block of shares from Portugal Telecom in
Brasilcel) infringed Article 101 TFEU. The appellants argue
that the clause should not have been interpreted as a non-compete
agreement separately from the transaction at issue. The
General Court is expected to decide on whether the Commission was
right to classify the non-compete clause as a restriction by object
and if it failed to assess whether the clause was capable of
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