EU & Competition e-report 2017 EU Competition

EU & Competition annual report is that some recent European Commission decisions – such as the ruling that the Irish government should recover €12 billion in unpaid taxes from Apple and record fines imposed on Google – could signify a trend towards a more “populist, combative path, compared to the previous approach of seeking solutions through commitment decisions”. He adds that, although such decisions appear to give greater certainty, ca ses like Google do not actually “provide much guidance as to what companies must do in order to comply and as a result do not contribute positively to the development of competition law”. Explosion in cases Jiménez-Laiglesia says another opportunity for law firms is advising clients on their business practices from a competition perspective. He adds that the amount of work available to competition lawyers is also dependent on the level of M&A activity in the market. Jiménez- Laiglesia also says that, despite the EU Directive on antitrust damages, he does not expect to see an “explosion in damages cases”. If there is an increase in competition damages claims, the risk for competition lawyers is that competition work could go to litigation departments in future, “which may impact partners’ income in non-lockstep firms”, says Pérez-Bustamante. According to González-Páramo Rodríguez, in the event of a rise in antitrust damages claims, an issue for major law firms could be conflict of interest in that leading firms will often be involved in cases as a defendant. Lawyers say clients are now concerned about potential damages claims and the associated reputational impact. In general, awareness of competition law among clients in Spain is on the increase. Another opportunity for law firms is the introduction of a new law related to public procurement, Armengol explains. He adds that the new law will bring about an amendment of the Competition Act that will enable the CNMC to prevent companies www.iberianlawyer.com involved in bid-rigging from being awarded public procurement contracts by the Spanish state. Some major companies have in-house legal teams focusing on competition law, according to Martínez. He adds that some in-house departments ask law firms to provide them with training on competition. Meanwhile, Uría Menéndez partner Alfonso Gutiérrez says state aid cases may create What have been the most significant developments in the area of EU and Competition in the last year? “The EU Commission’s increased scrutiny of new business models and their impact on consumers. The commission is focused on ensuring consumers are treated fairly in the roll out of new services and ways of doing business, with companies engaged in e-commerce or digital platforms remaining in the spotlight.” Álvaro Iza, partner, Freshfields Bruckhaus Deringer “At EU level, (i) massive fines imposed in cartel cases (notably in the truck manufacturers case); (ii) the European Commission has initiated investigations again on vertical agreements (notably in the e-commerce field); and (iii) the European Court of Justice has followed an effects-based approach towards exclusivity and loyalty rebates in the Intel case.” Alberto Escudero, partner, Baker McKenzie “All over Europe, national competition authorities seem to have increased their efforts to combat public bid rigging. For example, the UK Competition Authority has launched several initiatives in the last two years to help contracting authorities to detect and report potential bid rigging practices – similarly, in 2016 the Portuguese Competition Authority launched an on-going campaign “Fighting Bid-Rigging in Public Procurement”. Manuel Bermúdez Caballero, senior associate, Deloitte Legal “In view of the steady growth of online sales in the EU over the past years, the European Commission launched an inquiry focused on consumer goods that are frequently sold online. The final report of the European Commission shows its concerns about price transparency, the increasing control of manufacturers over distribution networks, the use of data in e-commerce and the adoption of geo- blocking measures, among others.” Henar González, partner, Herbert Smith Freehills “We have seen a reduced number of leniency applications partly due to uncertainty over how subsequently being prohibited from being hired will apply to leniency applicants, and partly due to concern over the potential increase in private damages in the wake of new legislation that aims to increase such actions.” Marta Delgado, partner, Jones Day “The Spanish competition authority seems to be consolidating a new approach to its fining policy after the Spanish Supreme Court annulled the previous and EU-inspired fining guidelines. Meanwhile, the authority and courts have made progress in defining the situations where individuals can also be fined for their involvement in antitrust offences.” Borja Martínez Corral, director, KPMG Abogados “At an EU level, the Intel decision issued by the Court of Justice of the European Union, as it sets aside the judgement of the General Court, addressing the situation from the perspective of the effects of a certain practice (fidelity rebates) and not from the formalistic approach of the Hoffmann-La Roche case.” Sofia Ferreira Enriquez, partner, Raposo Bernardo “At national level, 2017 witnessed a significant increase in behavioural and cartel- related work, following a series of high-profile inspections carried out by the Portuguese Competition Authority. It is significant that the authority decided to carry out in a short span of time more inspections than it had done in the past few years combined.” João Pateira Ferreira, managing associate, Linklaters (Portugal) November / December 2017 • IBERIAN LAWYER • 43 >>

EU & Competition e-report 2017 EU Competition | Page 3