EU & Competition e-Report 2013 | Page 2

EU & Competition Annual Report A culture of change Portugal’s new competition law and Competition Authority (PCA) Council may finally be what instils a lacking competition culture in the country, say lawyers, while Spain’s new Super Regulator has everyone on tenterhooks as to whether or not it is a positive step forwards. It’s all change in Iberia’s EU & Competition area. The EU Commission’s (the Commission) scrutiny of its competition community is on the rise, and authorities continue their fight against cartels and other anticompetitive practices. 2012 and 2013 have seen numerous developments in the Iberian antitrust and competition arena and one thing is for sure, lawyers agree – EU and Competition is taking the stage as an increasingly crucial practice area. At an EU level, says Francisco Cantos, Head of EU & Competition at Freshfields Bruckhaus Deringer Spain, probably one of the key developments has been the draft EU Damages Directive. El escrutinio de la The publication in mid-2013 of the Comisión Europea so-called ‘package of compensation of sobre el ámbito de su damages’ is finally intended to unlock a competencia va en aumento, y las autoridades 2005 initiative, and the most important step made by the Commission in the continúan su lucha contra los cárteles y otras field of Competition, according to Luis prácticas de competencia Berenguer, former President of Spain’s National Competition Commission (CNC) desleal. Según comentan and Senior Adviser at Broseta Abogados. los abogados, la nueva “When the proposed Directive is definitely ley de defensa de la adopted, those negatively affected will have competencia de Portugal an essential element to claim the damages y la Autoridad en materia caused by anti-competitive behaviour de Competencia pueden and this will intensify the deterrent effect, ser los que finalmente especially of cartels.” inculquen una cultura de Private enforcement is a hot topic, and competencia en el país. the Commission’s proposal recommends Mientras, el nuevo supercommon principles for injunction regulador español tiene a todo el mundo en vilo tras and compensatory collective redress los recientes cambios, por mechanisms concerning violations of rights granted under EU Law as well as lo que queda por ver si the proposal for a Damages Directive on supondrá un paso hacia actions. It is expected that the directive, adelante o no. 42 • IBERIAN LAWYER • November / December 2013 when adopted, will allow the creation of the necessary tools for more effective private enforcement, says João Paulo Teixeira de Matos, Head of EU and Competition at Garrigues Portugal. The Draft Directive grants private claimants access to a minimum amount of evidence necessary to pursue damages actions in national courts, explains Sönke Lund, a Partner at Monereo Meyer Marinello Abogados. Member States will need to introduce rules allowing national courts to order disclosure of evidence needed to prove antitrust damages. “And we expect that the consequent transposition into national law will have a direct consequence a large rise of private litigation cases before national courts,” says Ramón García-Gallardo, EU and Competition Partner at King & Wood Mallesons SJ Berwin, Madrid. Commission clampdown The Commission continues to fight against mergers that fall within its thresholds and launched two public consultations this year to make administrative procedures less burdensome for businesses and stimulate competitiveness within the EU. One is to extend the EU merger control regime to cover non-controlling minority shareholdings. Many clients have voiced their concerns about this proposal, say lawyers, as the current merger control system already imposes very significant costs on companies, and it makes little sense to simply extend the current system, and its flaws, to cover minority stakes. Such changes would be replicated at national level, which would aggravate the problem further. Additionally, 2013’s Commission decision prohibiting the UPS/TNT Express merger, and 2012’s blocking the Deutsche Börse/ NYSE Euronext and Ryanair/Aer Lingus deals show how the Commission will not hesitate to block mergers that it considers raise serious concerns if the parties are not able to offer suitable remedies, says Javier Ruiz Calzado, Vice Chair of Litigation and EU and Spanish Competition Partner at Latham & Watkins. From an EU perspective, 2013 has seen a key development in the so-called ‘e-books case’, under which arrangements between several book publishers and Apple have been found to be restrictive of competition and, therefore, illegal. The case represents a major antitrust intervention in a rapidlydeveloping and expanding consumer www.iberianlawyer.com