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