Latest updates

ECJ clarification means endive producers must turn over new leaf
Baker McKenzie Krzyzowski i Wspólnicy Spólka Komandytowa
  • Competition & Antitrust
  • European Union
  • December 14 2017

Under certain strict conditions, agricultural producers can coordinate their pricing and quantities without falling foul of the EU competition rules. However, the European Court of Justice recently confirmed that not all practices by agricultural producer organisations and their associations are automatically excluded from the application of those rules. This judgment is a timely reminder that the EU competition rules apply broadly to the agricultural sector and that any exclusions will be interpreted restrictively.

EU Directive 2017/828 – cornerstone of increased shareholder engagement?
  • Company & Commercial
  • European Union
  • November 27 2017

EU Directive 2017/828, amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement, was recently published. The directive provides several options for member states when transposing the directive into national law. Depending on how the respective national legislature make use of these options, there will be minor or major changes to the national law.

How much? AKKA/LAA clarifies excessive pricing rules
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • November 09 2017

The European Court of Justice recently clarified a number of thorny issues regarding excessive pricing, which had been otherwise unaddressed by previous case law. The ECJ offered answers to the questions of how many countries must be surveyed when seeking to demonstrate excess through cross-border comparisons, how relative purchasing power should be taken into account and whether a defendant can claim that average prices are fair even if specific customer rates are not.

European Union to tighten control over foreign investment
  • Corporate Finance/M&A
  • European Union
  • November 01 2017

The European Union has proposed a new EU framework for screening foreign investment that raises security and public order concerns for the European Union and its member states. The commission intends to launch, and possibly complete, the proposed framework by the end of 2018. Opposition by several member states means that it is unclear whether the proposal will be approved by the Council of the European Union.

Recent developments in EU trade and investment policy
Herbert Smith Freehills LLP
  • International Trade
  • European Union
  • October 20 2017

The European Court of Justice recently handed down its opinion regarding the European Union's competence to conclude its proposed free trade agreement (FTA) with Singapore. FTA proposals incorporating provisions on the protection of non-direct foreign investments or investor-state dispute settlement mechanisms should be treated as mixed agreements, requiring ratification from not only the European Union, but also each member state.

Taking advantage of patient data
  • Healthcare & Life Sciences
  • European Union
  • October 18 2017

Patient treatment and research creates a wealth of data. Given that health data is sensitive, reaping the benefits of data-based medicine brings particular challenges when it comes to data protection requirements. EU data protection law is currently based on the Data Protection Directive, among other things. This directive will shortly be replaced by the General Data Protection Regulation, under which data concerning health is subject to increased protection.

Intel rewrites rebates rules: ECJ requires economic assessment
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • September 21 2017

In its recent ruling on the European Commission's 500-page Intel decision, the European Court of Justice revisited 40 years of jurisprudence as to when a dominant company's rebate scheme may be abusive. Though not a final decision, the case marks a potentially major departure from the arguably form-based approach to rebates advocated by the European Union's lower court.

Excessive pricing enforcement action on the rise: a new enforcement trend?
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • August 31 2017

Although enshrined in the EU treaties since inception, 'unfair pricing' as an abuse of market power was a little-used tool in enforcers' armoury. The few cases that were brought tended to be based on exceptional circumstances, and many failed on the facts. A May 2017 EU probe has brought the abuse back to the enforcement agenda. However, this is unlikely to denote a new trend; it is too early to say that this is the new normal.

EU-Japan 'agreement in principle' for economic and partnership agreement
Herbert Smith Freehills LLP
  • International Trade
  • European Union
  • August 25 2017

The European Union and Japan recently announced having reached an 'agreement in principle' on a future economic and partnership agreement. The final agreement is expected to boost EU-Japan trade by cutting red tape and scrapping duties. EU businesses importing from and exporting to Japan should prepare for the agreement's entry into force. This requires assessing the exact effect of the agreement on their operations and identifying potential opportunities and challenges.

EU Trademark Court of Appeal rules on smell-alike perfumes
  • Intellectual Property
  • European Union
  • July 31 2017

The 8th Section of the Alicante Court of Appeal, acting as the EU Trademark Court of Appeal, recently confirmed that the use of third-party trademarks of reputed perfumes to advertise, offer and market so-called 'smell-alike' perfumes amounts to trademark infringement and unfair competition. Notably, the defendant's argument was based on the need to use the trademarks of other perfumes to inform consumers about the fragrance of its smell-alike perfumes.

Harley-Davidson wins battle against bar restaurant over well-known bar and shield sign
  • Intellectual Property
  • European Union
  • July 24 2017

The EU Trademark Court recently revoked in full the Commercial Court of Alicante Number 1 first-instance judgment, which had dismissed all of the claims filed by H-D USA, LLC (Harley-Davidson) against a third party for its unauthorised use of the Harley-Davidson bar and shield sign to identify and promote its bar restaurant. The court sentenced the defendant to pay Harley-Davidson damages and bear the costs incurred in the first instance.

OnDemand Competition and antitrust in the digital age
Baker McKenzie CVBA/SCRL
  • European Union
  • July 20 2017

Digital markets are a priority under EU competition policy. The fast-paced nature of the market has posed numerous challenges. However, EU Competition Commissioner Margrethe Vestager has stressed that digitalisation does not require a complete overhaul of competition law or the creation of sector-specific rules, but rather adaptation to the features of digital markets.

Emerging drone framework in the European Union
  • Aviation
  • European Union
  • July 19 2017

As part of its ambitious aviation strategy, the European Commission has proposed harmonising European drone rules. The Single European Sky Air Traffic Management Research Joint Undertaking recently unveiled U-Space – a blueprint on the use of drones in low-level airspace. The European Aviation Safety Agency is seeing to it that U-Space has rules that ensure the safe integration of drones into the airspace.

Missed opportunity: ECJ confirms expansive selectivity concept
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • June 01 2017

The European Commission continues to expand the concept of selectivity – the key feature of any state aid measure – to outlaw member states' measures as state aid. It has done so in its high-profile tax rulings cases, and the European Court of Justice refused to curtail this expansive approach in its judgment in the Spanish goodwill cases.

New rules on medical devices and in vitro diagnostic medical devices
  • Healthcare & Life Sciences
  • European Union
  • May 24 2017

The Medical Devices Regulation and the In Vitro Diagnostic Regulation, which the European Commission drafted following the Poly Implant Prothese breast implant scandal, were recently adopted. In particular, the Medical Devices Regulation strengthens market and post-market surveillance. The provisions require stricter assessment of product safety and clinical evaluations. In addition, the regulations cover previously unregulated aesthetic products.

EU Benchmark Regulation: requirements and impact for securitisation and structured finance transactions
  • Securitisation & Structured Finance
  • European Union
  • May 23 2017

The new EU Benchmark Regulation will take effect from January 1 2018 and will be directly applicable to EU firms that are benchmark users, administrators or contributors, without the need for national implementing legislation. As the scope of the regulation is much broader than any existing EU framework, securitisation and structured finance market participants should start to consider the increased controls that this will introduce.

New ruling in case involving use of well-known trademarks in sale of smell-alike perfumes
  • Intellectual Property
  • European Union
  • April 24 2017

EU Trademark Court Number 2 of Alicante recently upheld the lawsuit filed against Equivalenza for its use of trademarks belonging to Hugo Boss, Gucci and Lacoste in its sale of alleged smell-alike perfumes. Despite an earlier conviction for third-party trademark use, Equivalenza did not change its business model. Consequently, the court ordered it to cease and desist offering, marketing and promoting its perfumes using the plaintiffs' trademarks, among other things.

Dangerous to know: cartel liability just got wider
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • April 06 2017

A recent European Court of Justice decision confirms that businesses can be liable for cartelising products that they do not even have in their portfolio and in jurisdictions in which they are not active, provided that there is an anti-competitive agreement with an overall plan covering multiple products and geographies and that the undertaking participated directly in the execution of some parts of the agreement and was aware of the other parts of the agreement.

Appealing a settlement: can you have your cake and eat it?
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • March 16 2017

A recent General Court judgment illustrates that an appeal to the courts on fine calculation methodology can be successful, notwithstanding the admissions of liability made during the settlement process. The judgment follows a European Commission decision against a number of parties for coordinating sales prices, allocating customers and exchanging competitively sensitive information in relation to stock and catalogue envelopes and special printed envelopes of all shapes, colours and sizes.

European Commission proposes extending aviation emissions cap exemption
  • Aviation
  • European Union
  • March 15 2017

The European Commission recently announced its proposal to amend the EU Emissions Trading Scheme, with the aim of contributing to EU climate objectives regarding the reduction of carbon dioxide emissions. Although the emission and compensation criteria have not yet been clearly defined, according to this new scheme, there will be three main phases to implement the measures set out by the International Civil Aviation Organisation.