Latest updates

ECJ opines on insolvency-related ancillary claims against members of creditors' committees
  • Insolvency & Restructuring
  • European Union
  • June 08 2018

The European Court of Justice recently extended the international jurisdiction of the court where the insolvency was opened through so-called 'annex competence' and insolvency-related 'ancillary claims and proceedings'. This decision clarifies that creditors' committee member activities are inseparably linked with insolvency proceedings and their effects. Although the case at hand viewed the creditors' committee as compulsory, the same should also apply to members of a voluntary creditors' committee.

ECJ sets dominance record straight: price discrimination not all bad
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • June 07 2018

Discriminatory pricing as an abuse is a little-deployed area of EU antitrust law and there has been no recent enforcement at the European Commission level. The few existing cases concern extreme facts, involving natural or statutory monopolies such as airports or copyright collecting societies. A recent European Court of Justice judgment offers welcome clarification of the case law. It starts with the premise that not all price differences are illegal.

ECJ finds that bird strikes may constitute extraordinary circumstances
  • Aviation
  • European Union
  • May 23 2018

The European Court of Justice (ECJ) recently found that – in the context of Article 5 of EU Regulation 261/2004, which can exempt air carriers from their obligation to compensate passengers – a collision between an aircraft and a bird may constitute extraordinary circumstances. The ECJ adopted a divergent approach in its decision that appears to disregard the EU advocate general's 2016 opinion regarding the same case.

Is figurative mark containing word 'Mafia' contrary to public policy?
  • Intellectual Property
  • European Union
  • April 30 2018

The European Union Intellectual Property Office General Court recently dismissed an appeal against the revocation of the EU figurative trademark LA MAFIA SE SIENTA A LA MESA ('the Mafia takes a seat at the table'), in which 'La Mafia' was the dominant element. The trademark was deemed to be "contrary to public policy and to accepted principles of morality, since the word element 'Mafia' referred to a criminal organisation".

General Court confirms manufacturers' right to set up authorised repair networks
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • April 26 2018

The General Court has confirmed that suppliers may restrict aftermarket access to authorised repairers for their spare parts. Suppliers can refuse unauthorised repairers access, even if they are considered to have a dominant market position over those parts. The case clarifies that even if suppliers are considered to be a monopoly supplier of spare parts or consumables for their installed base of customers, they are still entitled to control how their parts or consumables are distributed.

Calling it 'legal' does not make it so
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • April 12 2018

The European Court of Justice recently dismissed an appeal against a General Court judgment which largely upheld the European Commission's prohibition decision taken against Telefónica and Portugal Telecom for a non-compete covenant in a share purchase agreement. The non-compete agreement purported to restrain the parties from competing in Portugal and Spain "to the extent permitted by law".

Application of EU Service Regulation – formalities versus objectives
  • Litigation
  • European Union
  • April 10 2018

The European Court of Justice recently found that the EU Service Regulation must be interpreted and applied to ensure a fair balance between the interests of a party that serves documents and those of the addressee by reconciling the objectives of efficiency and speed of service of procedural documents with the need to ensure that the addressee's right to defence against the documents is adequately protected through the guarantee of their receipt.

EU reaction to US national security measures
Herbert Smith Freehills LLP
  • International Trade
  • European Union
  • March 30 2018

The European Union has rejected the US claim that the recently issued Section 232 national security investigation reports on steel and aluminium measures are necessary or even intended to address a national security concern. The European Union has announced three actions in response to the measures, including a World Trade Organisation dispute settlement action.

European Commission proposes directive on preventive restructuring frameworks
  • Insolvency & Restructuring
  • European Union
  • March 16 2018

The European Commission has proposed a directive on preventive restructuring frameworks in order to reduce significant barriers to the free flow of capital caused by differences in member states' restructuring and insolvency frameworks. It aims for all member states to implement key principles for effective preventive restructuring and second-chance frameworks, as well as measures to improve the quality and efficiency of all types of insolvency procedure by reducing their length and associated costs.

Modification of trade defence rules regarding non-market economy costs and prices
Herbert Smith Freehills LLP
  • International Trade
  • European Union
  • February 23 2018

The European Union recently issued Regulation 2321/2017, amending the basic EU Anti-dumping Regulation (1036/2016). Among other things, Regulation 2321/2017 sets out new rules for the calculation of normal value in the case of significant distortions that affect cost and price and removes rules which previously allowed for normal value to be determined via an analogue country methodology for non-market economy World Trade Organisation members.

Beyond bail-in: reform of bank creditor hierarchy in European Union
Cleary Gottlieb Steen & Hamilton LLP
  • Banking
  • European Union
  • January 26 2018

The European Commission recently published a legislative proposal amending the Bank Recovery and Resolution Directive to modify creditor hierarchy in insolvency with a view to facilitating the resolution of EU credit institutions. The proposal, which was fast tracked, resulted in the adoption of EU Directive 2017/2399, which amends the Bank Recovery and Resolution Directive as regards the ranking of debt instruments in insolvency.

European Commission guidance on competition and patents in Internet of Things
Baker McKenzie CVBA/SCRL
  • Competition & Antitrust
  • European Union
  • December 21 2017

The European Commission's decisions in the abuse of dominance cases against Samsung and Motorola in 2014 and the European Court of Justice judgment in Huawei v ZTE in 2015 clarified the limits of standard-essential patent (SEP) holders' rights to seek injunctions against implementers under EU competition law. However, these cases left a number of important issues unresolved. As such, the European Commission recently presented its guidance on SEP licensing.

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.