Lukoil - Court of Justice clarifies scope of essential facilities doctrine

This week, the Court of Justice clarified in case C 245/24 (Lukoil) the application of the essential facilities doctrine, first established in the 1998 Bronner judgement. This doctrine imposes a higher evidentiary burden on competition authorities when assessing refusals to supply or grant access under Article 102 TFEU, to protect property rights and maintain incentives to invest. It requires authorities to demonstrate that the refusal concerns an essential facility, making access indispensable for competitors on downstream markets.

The Court of Justice has progressively narrowed the scope of this doctrine. In recent years, it excluded its application in cases:
• where there is a legal obligation to supply (Deutsche Telekom and Slovak Telekom),
• where there is no outright refusal to supply (Google Shopping),
• where the dominant undertaking does not own or control the facility (Lithuanian Railways), or
• where the facility was not developed for the undertaking’s own use (Android Auto).

In its latest judgement, the Court adds another exclusion: the doctrine does not apply where the facility was developed by a public authority and transferred to the undertaking at non market terms, meaning without a proper competitive bidding process.

In its Opinion on this case, the Advocate General hinted that Android Auto may apply only to digital platforms. The Court did not however address the Android Auto judgement, deeming it irrelevant to the case, so further clarification on its scope remains pending.

#competitionlaw #ECJ #Article102 #Bronner #abuseofdominance #essentialfacilities #Lukoil #contrastupdate

New publication: Distributieovereenkomsten (EU - België - Nederland)

The newest edition of the book Distributieovereenkomsten has just landed as the perfect gift under our Christmas tree! 🎄

This clear, practice oriented guide is designed for legal professionals working with distribution and other vertical agreements. It combines in-depth analysis with practical tools you can apply in your day to day advisory work.

𝐈𝐧𝐭𝐞𝐫𝐞𝐬𝐭𝐞𝐝? Get your copy here. 

#competitionlaw #verticalagreements #legalpublications #contrastpublications

In the Picture - Legal uncertainty for mergers and acquisitions between sector peers

𝐈𝐦𝐚𝐠𝐢𝐧𝐞 ... 💭

You are the CFO of a company that supplies artisanal bakeries. You acquire your largest competitor. The acquisition remains well below all notification thresholds and therefore does not need to be notified to any competition authority. You proudly announce the takeover. The business is very enthusiastic. Since there is no need to wait for approval from competition authorities, this time you won’t spoil your company's ambitious timeline.

Or at least that’s what you thought. One day a letter from the French Competition Authority lands on your desk. It informs you that it is investigating the acquisition for a possible breach of competition law.

How strange. You had heard that this could happen when companies with a dominant position make acquisitions, but your company is not dominant at all. The letter from the French Competition Authority does not say that either, but it does say that the acquisition may be an anti-competitive agreement between undertakings.

What do you mean? Does this mean that all your acquisitions are now threatened?

𝐖𝐚𝐧𝐭 𝐭𝐨 𝐤𝐧𝐨𝐰 𝐦𝐨𝐫𝐞? Read our latest #inthepicture ‘Legal uncertainty for mergers and acquisitions between sector peers’, or contact our competition partner Herlinde Burez or senior associate Laura Sente 👉https://www.contrast.law/en/newsletters/in-the-picture/legal-uncertainty-for-mergers-and-acquisitions-between-sector-peers/

#competitionlaw #mergersandacquisitions #towercast

EU parliament approves Omnibus I amendments to CSRD & CSDDD

At noon today, the European Parliament gave its 𝐟𝐨𝐫𝐦𝐚𝐥 𝐠𝐫𝐞𝐞𝐧 𝐥𝐢𝐠𝐡𝐭 to the provisional agreement reached last week on the 𝐂𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞 𝐒𝐮𝐬𝐭𝐚𝐢𝐧𝐚𝐛𝐢𝐥𝐢𝐭𝐲 𝐑𝐞𝐩𝐨𝐫𝐭𝐢𝐧𝐠 𝐃𝐢𝐫𝐞𝐜𝐭𝐢𝐯𝐞 (𝐂𝐒𝐑𝐃) and 𝐂𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞 𝐒𝐮𝐬𝐭𝐚𝐢𝐧𝐚𝐛𝐢𝐥𝐢𝐭𝐲 𝐃𝐮𝐞 𝐃𝐢𝐥𝐢𝐠𝐞𝐧𝐜𝐞 𝐃𝐢𝐫𝐞𝐜𝐭𝐢𝐯𝐞 (𝐂𝐒𝐃𝐃𝐃) amendments under the Omnibus I package.

That only leaves formal approval by the Council, after which the text will enter into force 𝟐𝟎 𝐝𝐚𝐲𝐬 𝐟𝐨𝐥𝐥𝐨𝐰𝐢𝐧𝐠 𝐢𝐭𝐬 𝐩𝐮𝐛𝐥𝐢𝐜𝐚𝐭𝐢𝐨𝐧 𝐢𝐧 𝐭𝐡𝐞 𝐎𝐟𝐟𝐢𝐜𝐢𝐚𝐥 𝐉𝐨𝐮𝐫𝐧𝐚𝐥.

📌Key elements can be found in our previous post below, or in today’s press release.
📌The adopted text is also already available. 

💬 𝐐𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬? Feel free to reach out to our corporate team or your usual contact person at 𝐜𝐨𝐧𝐭𝐫𝐚𝐬𝐭!

#EU #CSDDD #CSRD #Omnibus #corporate #duediligence #ESG #sustainability #corporatesustainability

Intel: General Court agrees with EC on naked restrictions but reduces fine

Yesterday, the General Court rejected Intel’s appeal against the European Commission’s decision of 22 September 2023 to impose a fine for so-called naked restrictions. These restrictions concerned payments made by Intel to computer manufacturers (HP, Acer and Lenovo) to delay, cancel or restrict the marketing of products equipped with CPUs of its competitor AMD.

This judgement is another chapter in a long-running story:
📌 𝟏𝟑 𝐌𝐚𝐲 𝟐𝟎𝟎𝟗 – Commission imposed a fine of approx. €1 billion for exclusionary abuses of dominance
📌 𝟏𝟐 𝐉𝐮𝐧𝐞 𝟐𝟎𝟏𝟒 – General Court dismissed Intel’s appeal
📌 𝟔 𝐒𝐞𝐩𝐭𝐞𝐦𝐛𝐞𝐫 𝟐𝟎𝟏𝟕 – Court of Justice annulled that dismissal in a landmark ruling
📌 𝟐𝟔 𝐉𝐚𝐧𝐮𝐚𝐫𝐲 𝟐𝟎𝟐𝟐 – General Court annulled the Commission’s decision in its entirety but nevertheless confirmed the Commission’s finding on the naked restrictions. Only the Commission appealed this judgement.
📌 𝟐𝟐 𝐒𝐞𝐩𝐭𝐞𝐦𝐛𝐞𝐫 𝟐𝟎𝟐𝟑 – Commission imposed a fine of approx. €376 million for naked restrictions
📌 𝟐𝟒 𝐎𝐜𝐭𝐨𝐛𝐞𝐫 𝟐𝟎𝟐𝟒 – Court of Justice confirmed the 2022 judgement

Put simply, the General Court refused to revisit the legality of the concept of naked restrictions, which are virtually irrefutably assumed to have exclusionary effects. The General Court took the view that, despite the annulment of the original decision of the Commission, the finding that the naked restrictions infringed competition law had become final already in 2022, as the Commission only needed to issue a new decision on the fine.

The General Court did agree with Intel that the Commission failed to reassess the fine appropriately. The remaining infringement was only a fraction of the original case. The fine was therefore reduced to approx. €237 million, reflecting that the naked restrictions were sporadic and affected a relatively limited number of computers. This indicates that competition authorities should not act as sore losers when confronted with a partially annulled decision. They must fairly redetermine an appropriate fine.

The Intel saga may finally be over, although a further appeal before the Court of Justice remains possible.

#competitionlaw #ECJ #europeancommission #intel #abuseofdominance #nakedrestrictions

Council and EU Parliament reach provisional agreement on Omnibus I CSRD & CSDDD amendments

Today, the Council’s presidency and EU Parliament’s negotiators reached a 𝐩𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧𝐚𝐥 𝐚𝐠𝐫𝐞𝐞𝐦𝐞𝐧𝐭 on the simplification measures for 𝐂𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞 𝐒𝐮𝐬𝐭𝐚𝐢𝐧𝐚𝐛𝐢𝐥𝐢𝐭𝐲 𝐑𝐞𝐩𝐨𝐫𝐭𝐢𝐧𝐠 (𝐂𝐒𝐑𝐃) and 𝐂𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞 𝐒𝐮𝐬𝐭𝐚𝐢𝐧𝐚𝐛𝐢𝐥𝐢𝐭𝐲 𝐃𝐮𝐞 𝐃𝐢𝐥𝐢𝐠𝐞𝐧𝐜𝐞 (𝐂𝐒𝐃𝐃𝐃), part of the Omnibus I package.

𝐒𝐨𝐦𝐞 𝐤𝐞𝐲 𝐩𝐨𝐢𝐧𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐚𝐠𝐫𝐞𝐞𝐦𝐞𝐧𝐭:
• Increase CSRD thresholds: >𝟏,𝟎𝟎𝟎 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞𝐬 and net annual turnover >€𝟒𝟓𝟎 𝐦𝐢𝐥𝐥𝐢𝐨𝐧
• Increase CSDDD thresholds: >𝟓,𝟎𝟎𝟎 𝐞𝐦𝐩𝐥𝐨𝐲𝐞𝐞𝐬 and net turnover >€𝟏.𝟓 𝐛𝐢𝐥𝐥𝐢𝐨𝐧
• Risk-based approach for value chain due diligence, avoiding unnecessary information requests to out of scope companies
• Further postponement of CSDDD transposition deadline to 26 July 2028, with compliance as of 𝐉𝐮𝐥𝐲 𝟐𝟎𝟐𝟗

𝐍𝐞𝐱𝐭 𝐬𝐭𝐞𝐩𝐬:
The provisional agreement must now be formally endorsed and adopted by both the Council and EU Parliament. The Legal Affairs Committee vote is scheduled on 𝟏𝟏 𝐃𝐞𝐜𝐞𝐦𝐛𝐞𝐫 𝟐𝟎𝟐𝟓, followed by a plenary vote currently scheduled on 𝟏𝟔 𝐃𝐞𝐜𝐞𝐦𝐛𝐞𝐫. Coreper endorsement is expected at the next meeting on 𝟏𝟎 𝐃𝐞𝐜𝐞𝐦𝐛𝐞𝐫.

𝐌𝐨𝐫𝐞 𝐢𝐧𝐟𝐨𝐫𝐦𝐚𝐭𝐢𝐨𝐧? You can find the press releases with links to relevant information here and here.

💬 𝐐𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬? Feel free to reach out to our corporate team or your usual contact person at 𝐜𝐨𝐧𝐭𝐫𝐚𝐬𝐭!

#EU #CSDDD #CSRD #Omnibus #corporate #duediligence #ESG #sustainability #corporatesustainability #contrastupdate

In the Picture - No-poach agreements: common sense or cartel risk

𝐈𝐦𝐚𝐠𝐢𝐧𝐞 ... 💭

You’re preparing to welcome a new investor. The atmosphere in your company is charged with anticipation, fresh ideas, renewed energy, and the promise of growth. The investor is set to join your board, equipped with standard minority veto rights to safeguard their investment.

During the final round of negotiations, you propose what seems like a straightforward and sensible clause: “Let’s agree that you will invest but not poach our employees”. Surely, that’s just common sense?

But then the investor’s legal counsel hesitates, exchanges glances, and responds: “That’s not allowed. It’s a cartel”.

You nearly spill your coffee. A cartel? That can’t be right. You turn to your legal team for clarification.

𝐖𝐚𝐧𝐭 𝐭𝐨 𝐤𝐧𝐨𝐰 𝐦𝐨𝐫𝐞? Read our latest #inthepicture ‘No-poach agreements: common sense or cartel risk?’, or contact our competition counsel Mathieu Vancaillie or senior associate Michèle de Clerck 👉 https://lnkd.in/eJP3rQBk

#competitionlaw #nopoachagreements #cartel #europeancommission #BCA #ACM

Welcome to the team, Mélodie!

We’re happy to announce that Mélodie Seroen is joining 𝐜𝐨𝐧𝐭𝐫𝐚𝐬𝐭 as our new HR Business Partner!

Mélodie brings a unique blend of expertise: a solid background in law combined with hands-on collaboration with HR teams. This powerful mix will be an incredible asset as she steps into her new role.

We wish her the best of luck and a fantastic start!

Also interested in joining 𝐜𝐨𝐧𝐭𝐫𝐚𝐬𝐭? Take a look on our website.

#hrbusinesspartner #hr #careergrowth #careeropportunity #contrastcareers #contrasttalent

Our feedback on the BCA's sustainability guidelines

Yesterday, we submitted feedback to the Belgian Competition Authority on its draft guidelines for sustainability agreements. We welcome the BCA’s initiative and the opportunity to share feedback that builds on our experience and practical insights in advising clients on sustainability cooperation with competitors and the supply chain.

Our feedback emphasised the importance of clear guidance for businesses, alignment with EU principles, the value of transparent procedures and practical examples to support companies in their sustainability journey.

Read it here.

#sustainability #competitionlaw #clientfocus #contrastcares

Guest lecture on legal professionals privilege at KU Leuven

Last Friday, our competition partner Sebastien Engelen and dispute resolution associate Marie-Julie Kormoss were invited for the second year in a row to give a guest lecture to law students at KU Leuven on “the implications of 𝐥𝐞𝐠𝐚𝐥 𝐩𝐫𝐨𝐟𝐞𝐬𝐬𝐢𝐨𝐧𝐚𝐥 𝐩𝐫𝐢𝐯𝐢𝐥𝐞𝐠𝐞 for lawyers and in-house counsels”.

This year’s session focused on the 𝐢𝐧𝐭𝐞𝐫𝐬𝐞𝐜𝐭𝐢𝐨𝐧 𝐨𝐟 𝐥𝐞𝐠𝐚𝐥 𝐞𝐭𝐡𝐢𝐜𝐬 𝐚𝐧𝐝 𝐜𝐨𝐦𝐩𝐞𝐭𝐢𝐭𝐢𝐨𝐧 𝐥𝐚𝐰, using case-based examples to make the topic more concrete and relatable. Together with the students, we explored how legal professional privilege applies during dawn raids and the ethical challenges lawyers and in-house counsels may face.

A heartfelt thank you to Professor Françoise Auvray for providing this opportunity once again, and to the students for their enthusiastic participation!

𝐂𝐮𝐫𝐢𝐨𝐮𝐬 𝐭𝐨 𝐥𝐞𝐚𝐫𝐧 𝐦𝐨𝐫𝐞 𝐚𝐛𝐨𝐮𝐭 𝐭𝐡𝐢𝐬 𝐭𝐨𝐩𝐢𝐜? Read our In the Picture “Can the competition authority see what you write to your management and to your lawyer?” (available in English/Dutch/French) 🔗 https://lnkd.in/e2SSgDtu

#lawstudents #lawyers #legalprofessionalprivilege #LPP #inhousecounsel #KULeuven #guestlecture #contraststudentcorner #meetcontrast