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Presentation on EU Competition
Law Issues
Matthew Hall
Solicitor (England & Wales)
McGuireWoods LLP, Brussels
mhall@mcguirewoods.com
T: +32 2 629 4234

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Recent Developments in Abuse of Dominance (EU)
Recent case law establishes two broad categories of potentially
abusive practices (the “object” and “effect” divide):
• Abuse is assumed (“object” cases): pricing below AVC,
exclusive dealing, exclusivity/loyalty rebates, tying
• Abuse if has or is likely to have an anti-competitive effect:
margin squeeze, selective price cuts, refusal to deal, other rebate
schemes (except pure volume/quantity rebates for individual orders, which are assumed lawful)
There are many other potentially abusive practices
If dominant, the company’s behaviour is circumscribed, and the
categories of abuse are not closed

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Recent Developments in Abuse of Dominance (EU)
General issues:
• The threshold for an “effect”?
• “Effect” on what?
• Need for a causal link (the counterfactual)
• Related markets and appreciability
• Objective justification if exclusionary effects
See: Case C-23/14 Post Danmark II (ECJ, October 2015)
(available at http://curia.europa.eu/juris/liste.jsf?num=C-23/14) and
Streetmap v Google (English High Court, February 2016)
(available at http://www.bailii.org/ew/cases/EWHC/Ch/2016/253.html)

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Recent Developments in Abuse of Dominance (EU)
Some practical issues:
• Compliance and risk assessment depends on dominance, but
escaping on market definition is difficult. So:
- look for precedents and quasi-precedents
- remember it’s the relevant economic market that matters
- be cautious and don’t assume best case market definition
• Think about efficiencies up-front
Difficult area that needs careful analysis and advice

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Hot Topics in Distribution and Online Selling (EU)
Numerous recent examples of regulatory investigations, including:
• UK: Bathroom Fittings and Commercial Refrigeration, Pride
Mobility Products, Roma, private motor insurance, OTAs
• Germany: Dornbracht, Gardena, Bosch Siemens, Adidas, ASICS,
online car selling
• Germany online RPM: CIBA Vision, Recticel/Metzeler,
Garmin/United Navigation, Alessi, Phonak, Wala
• European Commission: Consumer Electronics, Amazon, Pay TV
Clear enforcement focus on online sales,
including of tangible goods

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Hot Topics in Distribution and Online Selling (EU)
European Commission: “There are indications of company-erected
[contractual] barriers in e-commerce, primarily aimed at territorial
fragmentation and restriction of price competition” (emphasis added)
But: “[There is] currently no plan to revise the legal framework
[the 2010 block exemption and guidelines], although some
adjustments may be needed.”
Basic framework remains in place,
but specific issues with online selling

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Hot Topics in Distribution and Online Selling (EU)
Various restrictions of online sales are imposed by suppliers:
• Ban on Internet sales (hardcore)
• Ban on Internet advertising/marketing (hardcore)
• IMAP (hardcore)
• RPM (hardcore)
• Dual pricing (hardcore)
• Use of logo/brand (hardcore)
• Use of price comparison sites (may be ok)
• Use of third party platforms (may be ok)
• Other developing practices including geo-blocking? (may be ok)
• (also MFN/price parity)
Fines can be and are imposed for hardcore restrictions.
Care is needed with all these restrictions

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Antitrust Liability for Third Parties (EU)
“When appropriate, [antitrust/competition compliance] may also
mean providing training for … distributors, agents, and
contractors”
Speech by Brent Snyder, Deputy Assistant Attorney General, Antitrust Division, U.S. Department of
Justice, 9 September 2014, available at https://www.justice.gov/atr/file/517796/download
Applies equally in the EU; think carefully before employing (or
acting as) a third party

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Antitrust Liability for Third Parties (EU)
A well-known concept but often not (sufficiently) focused on:
• Example of commercial agent
Similar issues arise in:
• Hub and spoke/A-B-C arrangements
• Competitor contacts coordinated by a customer (e.g. “customer
days”)
• Facilitation
• E-commerce platforms/data exchange tools
• Joint ventures/subsidiaries
Compliance policy needs to cover use of agents, contractors and
other third party service providers

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Antitrust Liability for Third Parties (EU)
ECJ Advocate General opinion, Case C-542/14 VM Remonts and
Others, 3 December 2015:
• If upheld by the ECJ, a highly-controversial game changer going
beyond the previous agency situation
• Brand new rebuttable presumption of liability for third party
infringement of competition law (sub-contractors or service
providers)
• Applies regardless of whether third party acted within its
mandate or company’s awareness of third party’s behaviour
• Rebut by taking necessary precautions
Need to consider processes for vetting, selecting and managing
Opinion (in French) available at http://curia.europa.eu/juris/liste.jsf?td=ALL&language=en&jur=C,T,F&num=C-542/14. The final judgment is
expected in mid-2016.

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Questions or Comments?
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