EU & Competition annual report
Doubts about how competition law should apply to e-commerce
The consequences of infringing competition law are becoming more serious , while there is increasing awareness of the possibility of claiming damages for such infringements
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The big competition law issue at EU level relates to how legislation should be applied to the digital world , says Patricia Liñan , partner at Bird & Bird . “ The Google case is a prime example , where the EU Commission has imposed a record fine of more than € 2 billion ,
and there is also a final report from the commission on the application of competition rules to e-commerce and how that will work ,” she adds .
Liñan says that , at a national level , the Spanish competition authority continues to focus on cases of cartels in public procurement , and the application of fines against individuals . In terms of opportunities for law firms , she says the main one stems from the fact that the consequences of infringing competition law are becoming more serious . She adds that this is because of the increasing awareness of the possibility of claiming damages for such infringements , and the possible criminal consequences for companies . In this scenario , competition lawyers are experiencing more demand for compliance-related work . Liñan says companies need to put competition law on their agendas , and as competition law becomes more sophisticated , more in-depth analysis of the potential risks is required .
Cartel damages claims growing concern for clients
Carlos Vérgez
Actions for damages related to cartels are a major concern for clients as competition authorities step up the fight against such infringements , says Carlos Vérgez , head of competition at Broseta in Madrid .
“ Antitrust and cartel enforcement continues to be one of the main areas of activity for competition authorities at European Union and national level ,” he explains . “ In Spain , the CNMC ( Comisión Nacional de los Mercados y la Competencia ) is not only maintaining its scrutiny of cartels – including bid-rigging – but is also expected to set up an economic intelligence unit , with the aim of using statistic tools to unveil collusive behavior .” Nevertheless , Vérgez believes it remains to be seen whether the expected increase in litigation related to damages actions acts as a disincentive for using the leniency system , which may in turn reduce the number of cartels unveiled by competition authorities . However , Vérgez says that actions for damages is a key concern of clients because , while actions in Europe are unlikely to reach the level of countries such as the US , they are still expected to increase considerably . “ This is an area in which it will no longer be rare for companies to find themselves not only as defendants but sometimes as applicants too , since cartels entered into by their suppliers / clients may also have harmful effects that could create incentives to obtain compensation ,” he explains . And while December 2016 was the time limit for member states to implement the EU Directive on damages , not all EU countries have adopted the necessary national legislation to implement it . “ Spain only recently adopted legislation in May 2017 ,” he adds . This represents an opportunity for law firms to not only provide clients with litigation and competition law-related services , but also advise on the potential commercial impact . “ All of this will be crucial to defend clients ’ interests ,” says Vérgez .
46 • IBERIAN LAWYER • November / December 2017 www . iberianlawyer . com