In August 2010, the U.S. antitrust agencies released the final version of their revised Horizontal Merger Guidelines, which they use to analyze the competitive implications of mergers between competitors. Whereas the prior (1992) version of the Guidelines had sought to provide a precise, step by step framework for analyzing horizontal mergers — centered around defining…

In two recent decisions, the Commission considered the impact of cooperation agreements that the notifying parties had entered into before the notified transaction and came to two different conclusions. In Iberia/British Airways (decision of 14 July 2010), the Commission was confronted with combined shares of 70-80% for time-sensitive passengers on two city pairs, London-Madrid and…

In a speech delivered last week at the IBA annual competition conference, Commissioner Almunia engaged the audience on the sensitive topic of due process and competition enforcement. Among the reasons justifying his overall satisfaction with the current EU enforcement system, he mentioned the review by the European courts, which forms “an integral part of competition…

In my last post, I discussed the General Court’s findings on market definition and dominance analysis in its AstraZeneca judgment. In this post, I review the Court’s findings on abuse. In its decision, the Commission held that Astra had abused its dominant position (1) by providing patent authorities misleading launch date information when applying for…

On June 10, 2010, the Düsseldorf Court of Appeals issued a decision that increased the hurdles for obtaining access to essential facilities in Germany in practice (see WuW/DE-R 2941 et seq.). The case concerns interim proceedings against a FCO decision. The FCO had found that Scandlines, the owner and operator of the ferry port Puttgarden,…

In my last post, I focused on a procedural element of the Commission’s Microsoft/Yahoo! decision. The decision is also very interesting from a substantive point of view, and shows the Commission’s determination to investigate the transaction in some detail, even though on the face of it (as the Phase I clearance subsequently confirmed), it raised…

The Commission’s recent decision approving Microsoft’s acquisition of Yahoo!’s Search Business (including internet search and search advertising) contains an interesting application of the definition of a concentration under the Merger Regulation. In December 2009, Microsoft and Yahoo entered into a License Agreement and a Search and Advertising Services and Sales Agreement. Microsoft will acquire a…

One of the inevitable facts of life in the U.S. after a government antitrust investigation becomes public – especially if it is a cartel investigation with an amnesty applicant or guilty pleas – is customer class actions. U.S. class action plaintiffs’ lawyers frequently bring “follow-on” cases on behalf of purchasers of the affected products within days (or at least weeks) of public disclosure of a cartel or other antitrust investigation.

Recent U.S. federal judicial decisions, however, have now placed significant hurdles in front of consumer antitrust plaintiffs in the form of stricter requirements for joining plaintiffs from multiple states together into a single class.

On March 11, 2010, the Court of Justice of the European Union (the “ECJ”) rendered a judgment (preliminary ruling) in response to two State aid questions referred to it by the French Conseil d’État (France’s highest administrative Court). The case involves French book and media exporter Centre d’exportation du livre français (CELF), which received non-notified…