EU Competition Law Update - Arnold & Porter LLP

EU Competition Law Update 

11 July 2012 

Arnold & Porter (Brussels) LLP is a limited liability partnership organized under the laws of the State of New York that is regulated 

by the Brussels Bar. It is an affiliate of Arnold & Porter LLP, a limited liability partnership organized under the laws of the District 

of Columbia, which does not itself practice in Brussels.

Arnold & Porter’s EU Competition Law Update 

Seminar/Webinar 

11 July 2012 

4:00 p.m. – 5:00 p.m. CET 

60 minutes 

Table of Contents 

Agenda ..................................................................................Tab 1 

Presentation Slides ...............................................................Tab 2 

Moderator/Speaker Biographies............................................Tab 3 

Marleen Van Kerckhove, Silvio Cappellari, Axel Gutermuth 

Practice Overview .................................................................Tab 4 

EU Competition Law Practice

Tab 1: Agenda

Arnold & Porter’s EU Competition Law Update 

Seminar/Webinar 

11 July 2012 

4:00 p.m. – 5:00 p.m. CET 

60 minutes 

Agenda 

I. Introduction............................................................................4:00 – 4:05 p.m. 

Marleen Van Kerckhove, Antitrust/Competition Practice, Arnold & Porter LLP 

II. Presentation and Discussion .................................................4:05 – 4:50 p.m. 

Speakers: 

Marleen Van Kerckhove, Antitrust/Competition Practice, Arnold & Porter LLP 

Silvio Cappellari, Antitrust/Competition Practice, Arnold & Porter LLP 

Axel Gutermuth, Antitrust/Competition Practice, Arnold & Porter LLP 

III. Questions and Answers.........................................................4:50 – 5:00 p.m. 

Attending this webinar qualifies you for one accredited CPD hour - Ref 2616/ARPO. 

CLE is pending.

Tab 2: Presentation Slides

Agenda 

� Cartel enforcement 

Webinar: 

EU CCompetition titi LLaw UUpdate d t 

Marleen Van Kerckhove 

Silvio Cappellari 

Axel Gutermuth 

11 July 2012 

– Substance – Dow/DuPont (GC) and Window Mountings (EC) 

– Procedure – new Best Practices, “Manual of Procedure” and dawn raid litigation 

– Private enforcement – disclosure issues 

� Mergers 

– Trends: Policy and Statistics 

– Interesting cases 

� Abuse of dominance 

– Commission activity 

– Court judgments: Post Danmark, Microsoft, Tomra, Telefónica 

� Q&A 

2

Overview 

� Substance 

Cartel Enforcement 

– GC: DuPont and Dow => liability of JV parents 

– Statistics on GC proceedings 

– EC: Window Mountings => fines 

� Procedure 

– Reform of the EC’s procedural framework 

– EC’s EC s “Manual Manual of Procedure Procedure” 

– Litigation on dawn raids (AG Bot in E.On) 

� Private enforcement – disclosure issues 

– Aftermath of Pfleiderer 

– Disclosure under Regulation no. 1049/2001 

4

Substance 

� GC: Dow and DuPont (Chloroprene Rubber), 2 February 2012 

– Court confirmed parent liability for 50/50 JV due to “economic, organizational and 

legal links” 

– Need to prove ability to exercise decisive influence and actual exercise of such 

influence 

• Ability I: parent representatives in Member Committee, which had broad approval rights 

on strategic issues (appointment/dismissal of board and management members, 

approval of business and strategic plans ...) ) 

• Ability II: approval of JV creation by the EC, which had found joint control 

• Actual exercise: decisions by the Member Committee, inter alia, (i) to appoint top 

managers; (ii) to close a production plant in the UK; and (iii) to conduct an internal 

audit into potential cartel participation 

Substance (cont’d) 

� GC: Dow and DuPont (cont’d) 

– Counter-arguments of the parent companies rejected 

• No knowledge of the cartel => irrelevant 

• Full-function character of the JV 

=> economic autonomy does not necessarily translate into strategic autonomy 

• Only “negative control” 

=> veto rights sufficient, power to impose decisions not necessary 

• Concept of “single economic entity” contradicts case-law on applicability of Article 101 

TFEU tto contractual t t lrelationship l ti hi bbetween t parents t and d JV 

=> no legitimate expectation that previous EC approach will be maintained 

– Conclusions 

• Confirmation of GC’s and EC’s tough stance on parent liability also for JVs 

• Important (though not surprising) clarifications on full functionality and negative control 

• Always fact-specific analysis (Industrial Bags, 6 March 2012 – no liability of JV parents 

due to insufficient factual evidence presented by the EC) 6 

5


� Some statistics on GC proceedings (3/2011 – 3/2012) 

– 75 rulings concerning 13 EC decisions 

• 40 x EC decision upheld, 27 partial annulments, 8 total annulments 

• Reduction of total fines from EUR 3.6 billion to EUR 3.0 billion 

– Successful arguments 

• Wrong/insufficient analysis of the facts 

=> 23 successful claims (14 relating to duration) 

• Incorrect application of the Fining Guidelines 

=> > 14 successful claims (in particular cooperation and unequal treatment) 

• Parent liability 

=> 5 successful claims 

• General issues 

=> 5 successful claims (length of proceedings, time bar, no exercise of full jurisdiction) 

� CJEU proceedings: 9 rulings concerning 4 EC decisions 

– 7 x GC ruling upheld, 2 annulments 


� EC: Window Mountings, 28 March 2012 

– Decision more than 4.5 years after dawn raids 

– Total fines of EUR 86 million imposed on 9 companies 

– Exceptional application of point 37 of the 2006 Fining Guidelines as most cartel 

participants were single-product firms => significant fine reductions 

“Although these Guidelines present the general methodology for the setting of 

fines, the particularities of a given case ... may justify departing from such 

methodology.” th d l ” 

– Yet another example of EC’s increased flexibility on fines 

– EC stressed fact-specific nature of the decision – but potentially far-reaching 

implications 

7 

8


� Other EC decisions 

– Freight Forwarders, 28 March 2012 

• Decision 4.5 years after dawn raids 

• Total fines of EUR 169 million imposed on 14 companies 

• Follow-up to Air Cargo case – but apparently different approach to single and 

continuous complex infringement (4 separate cartels) 

– Water Management, 27 June 2012 

• Decision 3.5 years after dawn raids – even though only 3 companies involved 

• Total fines of EUR 13.7 million imposed on two companies 

• Sixth settlement case 

– Mitsubishi and Toshiba (GIS), 27 June 2012 

• Re-adoption of decision after GC annulment (unequal treatment due to different 

reference years) 

• Significant fine reductions – EUR 218.6 million => EUR 131.6 million 

Procedure 

� Reform of EC EC’s s procedural framework for antitrust investigations 

– Notice on Best Practices 

• State of play meetings at key points of the proceedings 

• Access to key documents already during investigative phase 

• Information in the SO about parameters for fine calculation 

– Extended mandate of the Hearing Officer 

• Supervision regarding effective exercise of rights of defence throughout the proceedings 

• In particular in charge of disputes about privilege issues and self-incrimination 

• Strengthened role in preparation and conduct of Oral Hearings 

– Best Practice Guidelines for the submission of economic evidence 

• Recommendations regarding content and presentation of economic analysis 

• Guidance on response to requests for quantitative data 

9 

10

Procedure (cont’d) 

� Publication of EC’s EC s “Manual Manual of Procedure Procedure” 

– EC’s internal guidelines on the handling of antitrust investigations published in 

March 2012 

– Triggered by the request of a lawyer under Regulation no. 1049/2001 

– 278 pages – 28 chapters, inter alia dealing with the handling of complaints, the 

treatment of cartel whistleblowers and the decision processes within the EC 

– Chapters on sector inquiries and fines/remedies still “under construction”; 

chapter on dawn raids kept out completely (“protection of the investigation”) 

Procedure (cont’d) 

� Litigation on dawn raids 

– AG Bot, opinion in E.On case, 21 June 2012 

• GC upheld EC decision imposing a fine of EUR 38 million on E.On for breaking of seal 

• Bot: GC did not fully exercise its jurisdiction but largely relied on the EC’s fine calculation 

• Necessary: proportionality analysis based on turnover data – fine must be proportionate to 

(i) the seriousness of the infringement (breaking the seal); and 

(ii) the fine that E.On would have incurred if found guilty of a cartel infringement 

• Also: fine must have sufficient deterrent effect if compared to the infringer’s financial means 

– May 2011: EUR 8 million fine for breaking of seal imposed on Suez Environment and 

Lyonnaise des Eaux 

– March 2012: fines of EUR 2.5 million imposed on two Czech companies for 

obstruction of a dawn raid inspection 

• Unblocking of e-mail account after it had been blocked by the EC 

• Diversion of incoming e-mails from a blocked account to a server 

11 

12

Private Enforcement – Disclosure 

� Aftermath of CJEU’s CJEU s landmark Pfleiderer ruling 

– Germany: Pfleiderer II, 18 January 2012 

• No access to leniency applications and supporting documentary evidence 

• Interest in effective leniency program prevails 

– UK: National Grid (GIS), 4 April 2012 

• No request for access to corporate statements; but documents at issue likely included 

leniency materials (or explanations on leniency materials) 

• Pfleiderer balancing test to be applied also to documents in the EC’s file 

• Focus on principles of legitimate expectations and proportionality 

• Legitimate expectations: no greater exposure of leniency applicant to follow-on claims 

• Proportionality: (i) information available from other sources?; (ii) relevance of the 

information to the private damage action 

• Result: disclosure of additional 32 paragraphs of the EC’s decision; very limited 

access to RFI responses; no access to SO responses 13 

Private Enforcement – Disclosure (cont’d) 

� Aftermath of Pfleiderer (cont’d) 

– Joint Resolution by the Heads of the EU’s 27 NCAs of 23 May 2012: 

The NCAs are “determined to defend the effectiveness of leniency programs in 

order to ensure a high level of anti-cartel enforcement.” 

“[L]eniency materials should be protected against disclosure to the extent 

necessary to ensure the effectiveness of leniency programs.” 

� EU legislation on private enforcement 

– EC “Roadmap” foresees legislative proposal still in 2012 – probably a directive 

– Topics: 

• Access to the case file/protection of leniency programs 

• Standing of indirect purchasers/passing-on defense 

• Ways to make NCA decisions legally binding throughout the EU 

14

Private Enforcement – Disclosure (cont’d) 

� Disclosure under Regulation no. 1049/2001 

– GC: EnBW (GIS), 22 May 2012 

• EC: no access to case file due to “unreasonable burden” to check the individual documents for 

business secrets or other confidential information 

• GC: any exception to general access right to be interpreted and applied strictly – EC needs to 

assess all options to grant access “in a concrete, specific and detailed manner” 

– CJEU: Édition Odile Jacob, 28 June 2012 

• EC had turned down access request by a complainant in merger proceedings 

• GC: EC needs to demonstrate “in a concrete and individual manner” that disclosure would 

run counter to protection of commercial interests and/or protection of the investigation 

• CJEU: “general presumption” that disclosure of EC’s correspondence with merging parties 

and third parties would undermine both objectives 

• Same presumption for EC-internal documents if proceedings are pending or likely to be reopened 

• Relevance also for antitrust files? 

Mergers 

15

Statistics 

January 2012 - June 2012 

� Phase I decisions: 116, of which 

– 79 under the simplified procedure 

– 3 with commitments 

� Phase II decisions: 3, of which 

– 2 with commitments 

– 1 prohibition 

� Phase II proceedings initiated: 6 

� Appeals bro brought: ght 44, of which hich 

– 3 against a clearance decision (both with and without 

commitments, both by merging party and by third parties) 

– 1 against a prohibition decision 

Trends 

� Review certain aspects of merger control 

regime: 

– Capture (certain) non-controlling minority acquisitions 

– More streamlining between EC and national regimes 

� Simplification of the process: 

– Pre-notification contacts: short, , informal, , flexible (see ( 

also priority issue below) 

– Simplified procedure: further streamline 

17 

18

Priority principle in merger assessments 

� Seagate/Samsung: 4 to 3 

– First EC contact on 3/14; notified and announced on 4/19 

– Unconditional clearance after Phase II 

� Western Digital/Viviti: 3 to 2 

– Announced on 3/7; first EC contact on 3/10; notified on 4/20 

– Conditional clearance after Phase II (on appeal) 

� Seagate/Samsung decision: 

– “competitive competitive conditions existing at the time of notification constitute 

the relevant framework” 

– “neither necessary nor appropriate to take into account future 

changes [...] resulting from subsequently notified transactions” 

– “legal certainty, transparency and objectivity” 

Dawn raids in merger investigation 

� Caterpillar/MWM (19 October 2011 – published in 2012): 

– Phase II investigation – closed without commitments 

– Inspections shortly after opening of Phase II re concerns over: 

• Lack of bidding data 

• Provision of misleading information 

• Early implementation 

– Art 11(3) letter sent to industry association (IESG) and certain of 

its members requiring the handing over or completion of share 

and/or d/ biddi bidding ddata t 

Note: in parallel, the EC started an Article 101 investigation into the 

issue, which according to unconfirmed press reports has since 

been closed 

19 

20

Parallel EC and national investigations 

� Hutchison 3G Austria/Orange Austria (pending) 

– Both mobile network operators in Austria – 4 to 3 

transaction 

– Prior to acquisition, Orange will sell YESS! customers 

to A1 Telekom Austria (but conditional on first deal 

closing) 

– Hutchison 3G Austria/Orange is before EC and 

Orange/A1 Telekom Austria is before Austrian 

competition authorities – both are currently in Phase II 

– Austria asked for referral back 

Foreclosure 

� Google/Motorola Mobility (“MM”) (13 February 2012): 

ttwo vertical ti l relationships l ti hi 

– Google’s Android mobile OS (share attributed to Google) and 

Motorola Mobility’s smart mobile devices 

– Motorola Mobility’s standard essential patents as key inputs into 

the smart mobile devices industry 

� Assessment OS – competitor foreclosure: 

– Ability to foreclose: Google’s ability to favour one or other 

Android partner p will not change g as result of merger g 

– Incentive to foreclose: doubtful that Google could capture more 

profits from favouring MM’s devices rather than having a large 

base for its search and advertising services 

– Effects: any foreclosure would have limited impact since most 

competing OEMs have alternatives to turn to 

21 

22

Foreclosure (cont’d) 

� Potential concerns re MM’s SEPs 

– Raising royalty levels 

– Forcing potential licensees into cross-licenses on terms they would not otherwise have agreed to 

– Excluding competitors from the market 

� Ability 

– Despite FRAND obligations, Google has some ability to seek or threaten injunctions; but only 

applies to non-licensees Apple and Microsoft where MM has already sought injunctions – hence, 

not merger specific 

� Incentive 

– MM’s current maximum per-unit royalty is non-merger specific and Google has limited incentives to 

raise that level (incl. FRAND) 

– Google internal documents show that aim of transaction is to protect Android ecosystem rather than 

impede competition competition, plus Google public commitment to FRAND (see letter); plus threat of counter- 

suits 

– None of Google’s internal documents provide evidence that Google would seek injunctions against 

its competitors with the aim of ultimately excluding them from the market 

� Effect: not merger specific 

Prohibition and market definition 

� Deutsche Börse/NYSE Euronext (1 February 

2012) 

– European financial derivatives traded on exchanges, 

i.e., exchange-traded derivatives 

– Not substitutable with “over-the-counter” trade 

derivatives 

– CCreating i near-monopoly l with i h hi high h bbarriers i to entry, 

less innovation and no off-setting efficiencies (see 

below) 

23 

24

Prohibition and efficiencies 

� Deutsche Börse/NYSE Euronext 

“It is very rare that we have concerns that prompt a prohibition 

decision. But this did happen in the Deutsche Börse/NYSE 

Euronext deal this year, where we found that the transaction 

would have created a de facto global monopoly on derivatives 

with European underlyings. In that case, we rejected the 

efficiency claims that money would be saved by the netting of 

margins, in part because there was no evidence that without 

competition these savings would be transmitted to the investors. 

So let me say something about efficiencies. We are accused of 

not taking productive efficiencies into account when we assess 

mergers. This is not true and efficiency claims are always 

carefully assessed when they are submitted. 

But we cannot accept efficiencies when their benefits are not 

transmitted to the economy in term of prices or innovation but 

are instead kept as private profits.” (Almunia, 22 June 2012) 

Commitments 

� Sony/Mubadala/BMI (19 April 2012) – music publishing 

– Issues identified in online licensing of copyright 

– Concern focused on online licensing of Anglo-American chart 

hits in the EEA as an indispensable part of any online platform 

offering (in partcular UK and Ireland) 

– Divestiture of global rights to four catalogues and recent and 

future works of 12 contemporary Anglo-American artists 

� Western Digital/Viviti (23 November 2011) – hard disk 

drives 

– Need to preserve competition as well as innovation; explicit 

obligation imposed that buyer of divested assets should have 

innovation capability 

25 

26

Commission activity 

� No decisions. 

Abuse of dominance 

� Samsung (January 2012), Motorola (April 2012): Cases opened re alleged 

failure to honor commitments made to the European Telecommunications 

Standards Institute (ETSI) by seeking and enforcing injunctions in various 

Member States’ courts against competing mobile device makers based on 

alleged infringements of certain of its patents which it had declared essential to 

implement European mobile telephony standards. 

� Thomson Reuters: Offered Article 9 commitments rejected after market test 

(March 2012), improved commitments offered in May 2012. Alleged abuse: 

preventing customers or competitors from translating Reuters Instrument Codes 

(RIC) to alternative identification codes of other data feed suppliers (“mapping”). 

� MathWorks (March 2012): Case opened re alleged refusal to provide 

competitors with end-user software licenses and interoperability information 

(similar to Microsoft case). Products concerned: commercial control systems. 

28

Post Danmark: Overview 

� Preliminary ruling, ECJ, 27 March 2012, case C-209/10 – Grand Chamber 

� Post Danmark had a monopoly for addressed letters and parcels under a certain 

weight and a universal service obligation in that regard 

� Relevant market : distribution of unaddressed mail in Denmark – liberalized, but 

Post Danmark dominant – same distribution network as for addressed mail 

� Competitor Forbruger-Kontakt active in distribution of unaddressed mail 

� Forbruger initially had contracts with three large Danish supermarket chains, 

which switched to Post Danmark in 2004 

� National authority found that Post Danmark had abused its dominant position on 

the market for delivery of unaddressed mail by charging Forburger’s former 

clients lower rates than its existing clients without justification 

� Post Danmark appealed in Denmark, Danish Supreme Court referred to ECJ 

Post Danmark: Predatory pricing (1) 

� AKZO test for predatory pricing (ECJ 27): 

– Prices below average variable costs: abusive 

– Prices below average total costs: abusive if they are part of a plan to eliminate a 

competitor 

� In this case: 

– Selective low prices (to clients of competitor) 

– For one customer (Coop), the resulting price level was lower than Post 

Danmark’s average total cost for the business of delivery of unaddressed mail, 

but higher than its average incremental costs (~ average variable costs) 

– An intention to foreclose rivals in the sense of AKZO has not been established 

29 

30

Post Danmark: Predatory pricing (2) 

� “[A] policy by which a dominant undertaking charges low prices to certain major 

customers of a competitor may not be considered to amount to an exclusionary 

abuse merely because the price that undertaking charges one of those 

customers is lower than the average total costs attributed to the activity 

concerned, but higher than the average incremental costs pertaining to that 

activity […]” (emphasis added) 

� “In order to assess the existence of anti-competitive effects in circumstances 

such as those of that case, it is necessary to consider whether that pricing 

policy, without objective justification, produces an actual or likely exclusionary 

effect, to the detriment of competition and, thereby, of consumers’ interests.” 

� Thus, a selective price cut for one customer leading to prices in the second 

AKZO category does not constitute an “automatic” predatory pricing abuse, but 

an abuse is not excluded. 

� Relevance of plan to foreclose? 

Post Danmark: Discrimination 

� Question for preliminary ruling explicitly asked for the existence of an 

exclusionary abuse (ECJ, 18) 

� ECJ, 30: “The presence of price discrimination […] cannot of itself suggest 

that there exists an exclusionary abuse.” 

� Reply: “[…] may not be considered to amount to an exclusionary abuse 

merely because” (emphasis added) 

�� Thus Thus, selective price cuts may constitute a discrimination abuse – but under 

what circumstances? 

31 

32

Microsoft: Overview 

� GC, 27 June 2012, case T-167/08 

� Application for annulment regarding the EUR 899 million periodic penalty payment 

imposed against Microsoft in 2008 

� Reason for penalty: Microsoft’s non-compliance with the 2004 Commission decision from 

June 2006 to October 2007 (16 months) 

– NB: Earlier penalty of EUR 280.5 million for period from December 2005 to June 2006 

� 2004 decision required Microsoft to make interoperability information available “on 

reasonable and non-discriminatory terms” (Article 5(a) of 2004 decision) 

– Interoperability between (i) Microsoft Windows PCs and (ii) work group server operating systems 

– Only specifications of protocols, not Microsoft’s source code 

� 2008 decision held that interoperability information was not offered on reasonable terms 

before October 2007 

� GC upheld the Commission’s decision, but reduced the fine to EUR 860 million because it 

found that the Commission had not correctly assessed the gravity of Microsoft’s conduct 

Microsoft: Two preliminary aspects 

� GC: Obligation g to apply ppy “reasonable terms” not too 

unspecific, can be the basis for a periodic penalty 

payment in case of non-compliance 

� GC: Dominant company must offer reasonable terms on 

its own initiative 

33 

34

Microsoft: Assessment of “reasonableness” – 

strategic value vs intrinsic value of information 

� Commission and GC: the remuneration must not reflect 

the “strategic value” of the information, but only the 

information’s “intrinsic value” 

� Strategic value = remuneration rates reflecting the value 

resulting from the mere ability to interoperate (GC, 142) 

� All Allowing i Microsoft Mi ft to t charge h strategic t t i value l “would “ ld in i 

effect allow [Microsoft] to transform the benefits of the 

abuse into remuneration for the grant of the license”. 

(GC, 142) 

Microsoft: Assessing the intrinsic value of 

interoperability information 

� Work Group Server Protocol Pricing Principles to determine intrinsic 

value (GC, 31): 

i. Protocols = Microsoft’s own creation (not taken from the public domain)? 

ii. Protocols = innovation (they must be novel and not obvious to persons skilled in 

the art, interpreted as under the European Patent Convention)? 

Commission: found that only a very small part of the protocols in question 

include innovative information; and 

iii. Market valuation of comparable technologies required, excluding the strategic 

value stemming from the dominant position of any such technologies. 

Commission: comparable technologies are offered remuneration-free by 

Microsoft and by other undertakings 

� GC endorsed this approach and its application by the Commission. 

35 

36

Microsoft: Some implications 

� Burden on dominant company p y to establish reasonable 

royalty rates – procedural safeguards do not help. 

� Assessment of intrinsic value practically possible? 

� No explicit guidance for situations where patented 

technology has to be licensed on reasonable terms – 

ddecision i i iis li limited it d to t Microsoft’s Mi ft’ “N “No PPatent t t agreement”. t” 

� Impact on FRAND licensing in the context of standard 

setting? 

Tomra: Overview 

� ECJ, 19 April 2012, C-549/10 P 

� Appeal against the dismissal, by the GC in September 2010, of an 

application for annulment against a March 2006 Commission 

decision fining various Tomra entities EUR 24 million 

� Dominant position on several national markets for reverse vending 

machines (very high market shares for Tomra: above 70% or 

event t 95%) 

� Abuse : exclusivity agreements, individualized quantity 

commitments and individualized retroactive rebate schemes 

(period 1998-2002) 

� ECJ dismissed application, upheld Commission decision 38 

37

Tomra: Interesting Points (1) 

� Confirmation that anti-competitive intent is not relevant for the finding of abuse, 

and an intention to compete on the merits is no defence – but intent is one 

factor that can be taken into account 

� Foreclosure of a “substantial” part of the market is sufficient for a finding of 

abuse – precise “market coverage” of behaviour does not need to be 

established (was approximately 40%) 

� ECJ 42: “[T]he foreclosure by a dominant undertaking of a substantial part of the 

market cannot be justified by showing that the contestable part of the market is 

still sufficient to accommodate a limited number of competitors.” 

– “Customers on the foreclosed part of the market should have the opportunity to benefit from 

whatever degree of competition is possible on the market.” 

– “Competitors should be able to compete on the merits for the entire market and not just a part of it.” 

– “It is not the role of the dominant undertaking to dictate how many viable competitors will be allowed 

to compete for the remaining contestable portion of demand.” 

Tomra: Interesting Points (2) 

� Retroactive (loyalty) rebate schemes: not necessary to make a price 

– cost comparison of the dominant company. Largely reliance on 

old case law. 

– ECJ, 79: “The loyalty mechanism was inherent in the supplier’s ability to drive out 

its competitors by means of the suction to itself of the contestable part of 

demand.” It “is not necessary to assess the actual effect of the rebates on 

competition given that it is sufficient to demonstrate that the conduct at issue is 

capable of having an effect on competition” competition (or tends to restrict competition 

– 

ECJ, 68, 72). 

� Commission’s 2009 Guidance Paper on exclusionary abuses 

mentioned, but found to be irrelevant for a decision adopted in 2006 

39 

40

Telefónica: Overview 

� GC, 29 March 2012, cases T-336/07 (Telefónica) and T-398/07 (Spain) 

� Application for annulment of a July 2007 Commission decision imposing a 

fine of EUR 152 million on Telefónica 

� Abuse: Margin squeeze (2001 to 2006) as between 

– prices offered by Telefónica to downstream competitors for wholesale broadband access to 

Telefónica’s network at a regional and national level and 

– Telefónica’s Telefónica s prices for retail broadband access (downstream market). 

� GC dismissed application, upheld Commission decision 

� Telefónica has lodged an appeal 

Telefónica: Interesting points (1) 

� Margin squeeze test does not have to be carried out on the basis of an 

optimal mix of available wholesale access products, which are offered in 

separate product markets. 

– Thus, available local loop wholesale access (no abuse) was not relevant for the assessment 

of abuse on the market for national and regional wholesale access 

� Confirmation that margin squeeze is a separate abuse (Deutsche Telekom). 

– Excessive pricing on upstream market not relevant 

– Predatory pricing on downstream market not relevant 

� Confirmation that dominance on downstream market is not required 

(TeliaSonera). 

41 

42

Telefónica: Interesting points (2) 

� Confirmation that margin squeeze should be assessed based on prices and 

costs of the dominant firm (as efficient competitor test) (Deutsche Telekom) 

– “Whether an undertaking in a dominant position would have been sufficiently efficient to offer 

its retail services to end users otherwise than at a loss if it had first been obligated to pay its 

own wholesale prices for the intermediary services.” 

� Confirmation that strategy of dominant company can also be relevant. 

� GC upholds Commission’s calculation of Telefónica’s costs under the 

discounted cash f flow method and the “period-by-period “ approach”. ” 

� Commission was right in holding that the margin squeeze probably 

reinforced the barriers to entry and expansion and that the competition 

would have probably been stronger in the retail market absent the abuse. 

Thank you! 

43

Tab 3: Moderator/Speaker 

Biographies

arnoldporter.com 

Arnold & Porter (Brussels) LLP is a limited liability partnership organized under the laws of the State of New York that is regulated by the Brussels Bar. It is an affiliate of Arnold & Porter LLP, a limited liability partnership organized 

under the laws of the District of Columbia, which does not itself practice in Brussels. 


Partner 

Marleen Van Kerckhove heads up the firm's 

European competition practice and its Brussels 

office. Her practice encompasses advice and 

representation before EU and national antitrust 

agencies on merger control, abusive conduct, 

price fixing and other restrictive practices, as 

well as litigation before European courts. She 

has steered many transactions successfully through EU and national 

merger control reviews across various industry sectors.In addition, she 

has advised extensively on the application of EU competition law to 

the pharmaceutical sector, and on the interplay between antitrust and 

intellectual property law. Ms. Van Kerckhove is a frequent speaker at 

programs and conferences in Europe, Japan and North America. 

Representative Matters 

� General Electric and NBCU Universal in connection with the 

Comcast- NBCU joint venture. 

� General Electric in its acquisition of Dresser Inc. Clearance in 

the EU and in multiple jurisdictions world-wide. 

� Sanyo in its merger with Panasonic. Obtained clearance in the 

EU. 

� European Federation of Pharmaceutical Industries 

Associations (EFPIA) before the European Court of Justice and 

the General Court in its intervention supporting AstraZeneca in 

its appeal against the European Commission's decision finding 

an Article 82 infringement with respect to certain of its alleged 

regulatory and IP conduct. 

� Pfizer in its acquisition of certain animal health businesses 

from Schering-Plough. Clearance in the EU. 

� Finmeccanica in its acquisition of DRS Technologies. 

Clearance in multiple jurisdictions world-wide. 

� Major international company with respect to a global 

competition compliance audit. 

� SBC in its acquisition of AT&T. Obtained clearance in multiple 

jurisdictions world-wide. 

� Cisco in its acquisition of Scientific-Atlanta. Obtained clearance 

in the EU. 

Contact Information 

Marleen.VanKerckhove@ 

aporter.com 

tel: +32 (0)2 290 7817 

fax: +32 (0)2 290 7899 

1, Rue du Marquis - 

Markiesstraat, 1 

B-1000 Brussels 

Practice Areas 

Antitrust/Competition 

FDA and Healthcare 

Telecommunications, 

Internet, and Media 

Education 

LLM, London School of 

Economics, University of 

London, 1987 

Diploma European Law, 

University of Nancy, France, 

1983 

LLB, University of Leuven 

(KUL), Belgium, 1982 

Admissions 

Brussels, Belgium

� Boston Scientific in its acquisition of Guidant. Obtained clearance in the EU and multiple other 


� Group of consumer electronics companies before the European Commission with respect to an 

Article 82 EC Treaty complaint regarding abusive licensing conduct. 

� Pfizer in its acquisition of Pharmacia. Obtained clearance in the EU and multiple other 


� General Electric in its proposed acquisition of Honeywell, assisting both with the notification to the 

European Commission and the subsequent appeal to the Court of First Instance. 

� Pfizer in its acquisition of Warner-Lambert. Obtained clearance in the EU and multiple other 


Rankings 

� Chambers Global 2012 for Competition/European Law: Belgium 

� PLC Which lawyer? 2012: Recommended for EU Life sciences: Competition/Anti-trust 

� PLC Which lawyer? 2012: Recommended for competition/anti-trust 

� PLC Which lawyer? 2012: Recommended for EU Competition 

� PLC Which lawyer? 2011: Endorsed for Competition/anti-trust (Belgium), EU Life sciences: 

competition/anti-trust (European Union), and EU Competition (European Union) 

� Chambers Europe: Europe’s Leading Lawyers for Business 2011 for Competition/European Law 

� The Legal 500 EMEA 2011 for Competition 

� The International Who's Who of Competition Lawyers 2011 

� Chambers Global: The World's Leading Lawyers for Business 2011 for Competition/European 

Law 

� Euromoney's Guide to Women in Business Law 2010: included as an Expert in Competition and 

Antitrust 

� Global Competition Review's "Women in Antitrust" 2009 

Articles 

� Marleen Van Kerckhove, Asim Varma and Marco Ramondino "EU Regulatory Procedures In The 

Pharmaceutical Sector" Competition Law360 Jul. 2010 

� Asim Varma and Marleen Van Kerckhove "Getting The Deal Through: Pharmaceutical Antitrust - 

Overview" Global Competition Review 2010 

� Marleen Van Kerckhove and Asim Varma "Getting The Deal Through: Pharmaceutical Antitrust - 

Overview" Global Competition Review 2009 


Arnold & Porter LLP 2

� Tim Frazer, Luc Gyselen, Marleen Van Kerckhove, Asim Varma and Barbara H. Wootton "Getting 

The Deal Through: Pharmaceutical Antitrust" Global Competition Review 2008 

� Deborah L. Feinstein, Marleen Van Kerckhove and Barbara H. Wootton "Merger remedies in the 

EU and US" Practical Law Company's Cross-border Competition Handbook, Volume 1, 2007/08 

� Marleen Van Kerckhove "Getting The Deal Through: Intellectual Property & Antitrust - European 

Union" Global Competition Review 2008 

� Marleen Van Kerckhove "EU Merger Control: Can You Be Compensated When Things Go 

Wrong?" The American Lawyer October 2007 

� Marleen Van Kerckhove "The Application of Article 82 EC Treaty to The Pharmaceutical Sector - 

Some Recent EC Guidance" The European Antitrust Review. [Reproduced with permission from 

Law Business Research. This article was first published in the October 2005 Issue.] 2006 

� Marleen Van Kerckhove "Parallel Trade in Pharmaceutical Products Following the EJC's Bayer 

Judgment: Can a Case be Made Under Article 82 EC Treaty?" The European Antitrust Review, 

2005 

� Ian Kirby, Lincoln Tsang, Marleen Van Kerckhove and William W. Vodra "Parallel Trade in the EU 

and US Pharmaceutical Markets" Global Counsel Life Sciences Handbook, 2005/2006 

� Ian Kirby, Marleen Van Kerckhove and William W. Vodra "Parallel Trade in the EU and US 

Pharmaceutical Markets" Global Counsel Life Sciences Handbook 2004/2005 

Presentations 

� Marleen Van Kerckhove "Life-Cycle Management & Settlement Strategies Post Sector Inquiry" 

18th Annual EU Pharmaceutical Law Forum, May 12, 2009 

� Marleen Van Kerckhove "Patent Misuse and Abuse in the US and Europe: the Case of 

Pharmaceuticals" ABA Section of Antitrust Law/GW Law School Competition Law Center, 

November 20, 2008 

� Marleen Van Kerckhove "4th Annual In-House Counsel Forum on Pharmaceutical Antitrust" 

American Conference Institute, May 20,.2008 

� Marleen Van Kerckhove "Recent Antitrust Developments for Pharmaceutical and Biotechnology 

Companies" BIO conference, 2008 

� Marleen Van Kerckhove "Lifecycle Management of Pharmaceutical Products" 17th Annual EU 

Pharmaceutical Law Forum, May 8, 2008 

� Marleen Van Kerckhove "Abuse of Dominance - What is the Scope of This Remedy?" 

Competition Law & Policy Forum, Toronto, April 2006 

� Marleen Van Kerckhove "The Application of EU and US Antitrust Law to Pharma and Biotech 

Companies" IBC Life Sciences Conference, London, April 2006 

� Marleen Van Kerckhove "Competition Law and Parallel Trade" EU Pharmaceutical Law Forum, 

Brussels, May 2005 

� Marleen Van Kerckhove "Private Antitrust Enforcement in the EC and the US" IBA Annual 

Antitrust Conference, Fiesole, September 2004 

� Marleen Van Kerckhove "EU Merger Control" UCLA Mergers & Acquisitions, February 2004 

Advisories 



� "First EU Judgment on Abusive Conduct Through Use of Regulatory Procedures in the 

Pharmaceutical Sector" Jul. 2010 

� "The EC Pharmaceutical Sector Inquiry: Getting Real" Jul. 2009 

� "New Notice Clarifies EU Commission's Approach to Remedies in Merger Cases" Oct. 2008 

� "Quota Schemes: The New Rules for Pharmaceutical Companies--The European Court rules on 

the Use of Quota Schemes by Dominant Pharmaceutical Companies" Sep. 2008 

� "Schneider Electric v Commission - The European Court of First Instance Breaks Ground In 

Relation To Damages In Merger Cases" Jul. 2007 

� "Tetra Laval/Sidel--The European Court of Justice Clarifies the Standard of Proof and the Role of 

Behavioural Commitments in Merger Cases" Feb. 2005 

� "Restrictions of Supply by an Allegedly Dominant Pharmaceutical Manufacturer--Do They Infringe 

EU Antitrust Law?" Oct. 2004 

� "Restrictions of Supply by an Allegedly Dominant Pharmaceutical Manufacturer" Oct. 2004 

� "New EU Regulation on Technology Transfer Agreements" Apr. 2004 

� "EC Competition Policy After 1 May 2004 Frequently Asked Questions" Apr. 2004 

� "The Impact of the Amendments to the EC Merger Regulation (ECMR)" Jan. 2004 





Partner 



Mr. Cappellari is a partner in the firm's antitrust 

and competition practice group. His practice 

focuses on a broad range of issues under 

European and German competition law. 

Mr. Cappellari has represented clients in highprofile 

merger control cases before the European Commission and the 

German Federal Cartel Office, including several second phase 

proceedings. He also has gained significant experience in international 

cartel cases, such as the recent investigations by the EU Commission 

concerning marine hoses, air cargo, subsea power cables and car 

components. 

In addition, Mr. Cappellari has a general antitrust counseling practice. 

He regularly advises clients on the compliance of joint ventures and 

other cooperation arrangements with Article 101 TFEU, as well as on 

questions of abusive conduct under Article 102 TFEU. 

Mr. Cappellari has gained significant experience, inter alia, in the 

energy, logistics, motor vehicles, pharmaceuticals, and media 

industries. 

Prior to joining the firm, Mr. Cappellari worked with other US law firms 

in Brussels and Washington, DC. He is fluent in German and Italian. 


� GE and NBCU in the creation of a joint venture with Comcast 

before the EU Commission 

� A major producer of car components in a cartel investigation 

under Article 101 TFEU before the EU Commission 

� A Japanese power cable manufacturer in a cartel investigation 

under Article 101 TFEU before the EU Commission 

� Cargolux, a leading global cargo airline, in a cartel investigation 

under Article101 TFEU before the EU Commission 

� A major Eastern European gas company in Article 102 TFEU 

proceedings before the EU Commission 

� Siemens in its acquisitions of UGS Corporation and VA Tech 

AG before the EU Commission 


Silvio.Cappellari@aporter.com 

tel: +32 (0)2 290 7815 

fax: +32 (0)2 290 7899 






Education 

LLM, Columbia Law School, 

1998 

German Bar Exam 

(Assessorexamen), 

Düsseldorf, Germany, 1996 

German Law School Exam, 

University of Göttingen, 

Germany, 1992 

Admissions 

Brussels (associate member) 

Frankfurt, Germany 

New York

� Novartis in the sale of its medical nutrition and baby food divisions to Nestlé and in its acquisition 

of Hexal AG before the EU Commission 

� CVC Capital Partners, a major private equity firm, in its acquisition of DSI Holding GmbH 

� Paramount in its acquisition of DreamWorks before the German Federal Cartel Office 

Rankings 


� Chambers Europe: Europe’s Leading Lawyers for Business 2011 for Competition/European Law 

� The Legal 500 EMEA 2011 for Competition 

� The International Who's Who of Competition Lawyers 2011 

� Chambers Global: The World's Leading Lawyers for Business 2011 for Competition/European 

Law 

Professional and Community Activities 

� Member, American Bar Association 

� Member, Studienvereinigung Kartellrecht 

Articles 

� Silvio Cappellari "Recent Developments in German Antitrust Law" The Computer and Internet 

Lawyer, June 2012 (forthcoming) 

� Silvio Cappellari "Reverse Payment Settlements in the EU - Finding the Right Dosage" 

Competition Law International, November 2011 

� Silvio Cappellari "Frankfurter Kommentar zum Kartellrecht" Article 8 ECMR, October 2011 

Advisories 

� "Recent Developments in German Competition Law" Jan. 2012 

� "NEUE ENTWICKLUNGEN IM DEUTSCHEN" Jan. 2012 

� "Neuere Entwicklungen im deutschen Kartellrecht" Jul. 2011 

� "Recent Developments in German Competition Law" Jul. 2011 

� "Neuere Entwicklungen im deutschen Kartellrecht" Jan. 2011 

� "Recent Developments in German Competition Law" Jan. 2011 

� "Recent Developments in German Competition Law" Mar. 2010 




G. Axel Gutermuth 

Counsel 



G. Axel Gutermuth is a member of the firm's 

antitrust/competition group with a focus on a 

broad range of competition law issues. 

Mr. Gutermuth assists and represents clients in 

merger control proceedings before the 

European Commission and the German Federal Cartel Office. He has 

participated in several second phase German and EC merger 

proceedings, including landmark cases such as Tetra Laval/Sidel and 

Oracle/PeopleSoft. In many of his cases, Mr. Gutermuth assesses 

merger filing requirements in jurisdictions around the world and 

coordinates the national filing procedures. 

As part of his general antitrust counseling practice, Mr. Gutermuth 

regularly advises clients on the compliance of joint ventures and other 

cooperation agreements with Articles 101 and 102 of the Treaty on the 

Functioning of the European Union (formerly Articles 81 and 82 of the 

EC Treaty) and the specific rules on cooperation in distribution, 

research and development, technology transfer, and production. He 

has particular knowledge of the application of competition law in cases 

involving intellectual property rights. Moreover, Mr. Gutermuth has 

represented clients in cartel investigations, EC anti-dumping 

procedures, State aid procedures, and appeals to Court of Justice of 

the European Union. He advises clients on internal compliance 

procedures and recently concluded a comprehensive antitrust 

compliance review of a client's worldwide business in the energy and 

chemical sectors. 

Mr. Gutermuth has worked for clients in various industries, including 

chemical, energy, life science, healthcare, technology, metals, 

tobacco, defense and telecommunications/media. 


� Represent a large technology company in a pending 

acquisition before the European Commission. 

� Represent client in ongoing cartel investigation by the 

European Commission. 

� Internal competition compliance review of client’s worldwide 

operations in the energy and chemical sectors. 


Axel.Gutermuth@aporter.com 

tel: +32 (0)2 290 7832 

fax: +32 (0)2 290 7899 






Education 

LLM, New York University 

School of Law, 1999 

German Bar Exam 

(Assessorexamen), 

Karlsruhe, Germany, 1998 

German Law School Exam, 

University of Heidelberg, 

Germany, 1996 

Certificate of Political 

Sciences, University of Aixen-Provence, 

France, 1993 

Admissions 

Brussels (associate member) 

Munich 

New York 

� Securing EU merger clearance for General Electric in its US$ 3 

billion acquisition of Dresser, Inc. and coordinating international filings in eight other jurisdictions.

� Representing Bucyrus International, Inc. in merger control proceedings before the EU 

Commission and coordinating filings in several other jurisdictions regarding Caterpillar’s US$ 8.6 

billion acquisition of Bucyrus. 

� Securing German merger clearance for Finmeccanica SpA’s US$ 5.2 billion acquisition of DRS 

Technologies and coordination of international filings. 

� Representing German citizens as witnesses in a U.S. cartel damages class action regarding the 

taking of witness statements in Germany under the Hague Convention. 

� Coordinating international merger filings in Bucyrus International Inc.’s US$ 1.3 billion acquisition 

of Terex Corporation’s mining equipment business. 

� International merger control advice to General Electric on various transactions, including EU 

merger filings. 

� Securing German merger clearance for a US$ 2.9 billion merger of pharmaceutical companies. 

� Advice on international merger control issues to Cisco Systems in its acquisitions of Starent 

Networks. 

� Counseling advice to a major international chemicals company regarding complex cooperation 

agreements for $1+ billion investments. 

� Participation in the representation before the European Commission and the General Court 

(previously, the Court of First Instance) of a major international investment bank regarding the 

violation of State aid obligations by an Accession Country. 

� Representing a leading German company in an abuse of dominance investigation before the 

German Federal Cartel Office. 

Rankings 


Professional and Community Activities 

� Mr. Gutermuth is author or co-author of several articles and publications on antitrust issues as 

well as a frequent conference speaker. He is a member of the Studienvereinigung Kartellrecht, 

the leading association of German speaking antitrust lawyers. 

Articles 

� G. Axel Gutermuth "Der neue Kartellrechtsrahmen für Forschungs- und 

Entwicklungsvereinbarungen" Wirtschaft und Wettbewerb, March 2012 

� G. Axel Gutermuth "The Revised EU Competition Rules for Production and R&D Agreements 

Create a More Coherent Framework of Assessment and Provide Better Guidance to Companies" 

CPI Antitrust Chronicle, February 2011 (1) 

� G. Axel Gutermuth "Revision of the EU Competition Rules on Cooperation in Research & 

Development and Production: Scope for Further Improvement" CPI Antitrust Journal September 

2010 

� G. Axel Gutermuth "Article 82 Guidance: A Closer Look at the Analytical Framework and the 

Paper's Likely Impact on European Enforcement Practice" This article was originally published in 

GCP Magazine at www.globalcompetitionpolicy.org, February 2009 



� Claus-Dieter Ehlermann, Sven B. Volcker and G. Axel Gutermuth "Unilateral Effects: The 

Enforcement Gap under the Old EC Merger Regulation" World Competition (Printed by Kluwer 

Law International) 2005 

� G. Axel Gutermuth, Thomas Mueller and John Ratliff "New European Licensing Rules Require 

Fresh Assessment of Existing and New Intellectual Property Licenses" Global Intellectual 

Property Asset Management Report, June 2004 

� G. Axel Gutermuth "Die EU-Fusionskontrolle ist umstritten" Frankfurter Allgemeine Zeitung, Jan. 

2003 

� G. Axel Gutermuth, Eric Mahr and Thomas Mueller "Navigating the Treacherous Shoals of EC 

Merger Clearance" International Financial Law Review Supplement, 2002 

� G. Axel Gutermuth, Paul von Hehn and Christian Duvernoy "New Regulatory Framework for 

Electronic Communications - The European Commission's Legislative Proposals" The European 

Antitrust Review, 2000 

Presentations 

� G. Axel Gutermuth "Standard Essential Patents, Injunctions and Abuse of Dominance", copanelist 

with DG Competition's Chief Economist Kai-Uwe Kuehn and Pierre Régibeau at the 

Concurrences Journal's conference on "Intellectual Property and Antitrust: Recent Issues", April 

25, 2012" Jul. 2012 

� G. Axel Gutermuth "Article 102 TFEU - Recent Developments" at the GCR Live Third Annual Law 

Leaders Europe, Brussels, November 15, 2011 

� G. Axel Gutermuth "New EU Competition Rules on Research and Development Agreements" at 

the Conference of the Global Competition Law Center, Brussels, February 16, 2011 

� G. Axel Gutermuth "The Revised Horizontal Agreement Guidelines" at the IBC Advanced 

Competition Law Conference, Brussels, November 23-24, 2010 

� G. Axel Gutermuth "The Reform of the EU's Horizontal Rules" at the GCLC Lunch Talk, Brussels, 

June 7, 2010 

� G. Axel Gutermuth "IP & Antitrust" ESCP-Europe Business School, Paris, yearly event (2006- 

2011) 

Advisories 

� "Will the Lisbon Treaty Have an Impact on Future EU Competition Policy?" Dec. 2009 

� "Private Enforcement of EC State Aid Law--EC's Revamped Notice on the Role of National 

Courts" Mar. 2009 

� "Germany Limits the Reach of its Merger Control Law but Introduces New Foreign Investment 

Supervision" Feb. 2009 

� "Private Label Brands, "Must-Have" Brands, and Impact on Retailer Buyer Power" Feb. 2009 

� "European Commission Endorses A More Economic-Based Approach" Dec. 2008 

� "New Notice Clarifies EU Commission's Approach to Remedies in Merger Cases" Oct. 2008 

Multimedia 



� Tim Frazer and G. Axel Gutermuth. "The Arnold & Porter eComp KnowHow Series: Competition 

Compliance Auditing Webinar" March 21, 2012. 

� G. Axel Gutermuth, Luc Gyselen and Susan Hinchliffe. "WEBCAST: First Half of 2011 in Review: 

Developments in European Competition Law that Every in-house Counsel Should Know" June 30, 

2011. (also available as a Podcast) 



Tab 4: Practice Overview

EU Competition Law Practice 

EU Competition – An Integrated Practice 

The EU Competition team offers the full range of competition law advice on 

mergers g and acquisitions, q , non-transactional representation, p , litigation g and 

counseling. We provide representation before EC, UK and other national 

competition authorities, as well as in European and national courts. We work 

with many companies on competition matters including: 

� antitrust issues, ranging from merger control over licensing and co-operative 

arrangements to market definition and potential abuse of a dominant position 

� distribution, and the establishment of lawful quota schemes and innovative 

cross-border compensation arrangements 

� services ranging from advice on the application of the law to agreements, 

conduct, and corporate strategies 

� obtaining gclearances for mergers, g , acquisitions, q , and joint j ventures from the 

European Commission and national competition authorities both within the EU 

and internationally 

� advice/representation relating to cartel investigations, potential abuses of 

dominance, structuring of distribution and licensing agreements, strategic 

alliances, state aids, and public procurement issues

Why Arnold & Porter? 

� We are the go-to-firm for antitrust in general, and antitrust in regulated markets working for clients 

located globally including in Europe, the Americas, Asia and Africa 

� Genuine inside knowledge of and well-connected well connected with the EU and Member State antitrust 

authorities 

� Native Danish/Dutch/English/French/German/Italian speakers 

� We are experienced in dealing with a range of industries, in particular: 

– Life sciences, 

– Fast-moving consumer goods, 

– Chemicals, 

– Transport & logistics, 

– Technology, media and telecommunications, and 

– EEnergy. 

Representative Matters – Mergers: EU 

� General Electric/ Converteam (Phase 1) 

� Caterpillar / Bucyrus (Phase 1) 

� Intel / McAfee (Phase 1 with conditions) 

� General Electric / Dresser (Phase 1) 

� BASF / Cognis (Phase 1 with conditions) 

� Syngenta / Negocio Semillas Girasol Monsanto (Phase 2 with conditions) 

� Comcast / NBC Universal (Phase 1) 

� Schneider Electric / AREVA T&D Distribution activities (Phase 1) 

� Alstom Holdings / AREVA T&D Transmission activities (Phase 1) 

� Kraft Foods / Cadbury (Phase 1 with conditions) 

� Philip Morris International/Papastratos (Phase 1) 

� Renesas Technology / NEC Electronics (Phase 1) 

� Panasonic / Sanyo (Phase 1 with conditions) 

� General Electric /NewsCorp / Disney / Hulu JV (Phase 1) 

� Ryanair / Aer Lingus (Phase 2) 

� Kraft / Danone Biscuits (Phase 1 with conditions) 

� Sea-Invest / EMO-EKOM (Phase 2)

Representative Matters – Cartels: EU and EU Member States 

We are currently representing the following: 

�� Major player in the optical disk drive sector in an ongoing EU investigation 

� Large logistics company in an ongoing EU investigation 

� Power cable supplier in ongoing US and EU investigations 

� Private investment fund in an ongoing EU investigation 

� Manufacturer of automotive electronic components in an ongoing EU investigation 

� Financial institution in an ongoing EU investigation 

� Manufacturer of automotive wire harnesses in an ongoing g g EU investigation g 

� International energy company in a national investigation 

� Major supplier of transmission and distribution equipment in one German and two EU cases 

� Three clients in different investigations before the Belgian competition authority 

Representative Matters – Other: EU 

� Litigation 

– AREVA in two appeals to the European Court of Justice and to the General Court 

against two European Commission decisions in the Gas Insulated Switchgear case 

and the Power Transformer case 

– European Federation of Pharmaceutical Industries Associations (Intervener in 

the European Court of Justice appeal against the AstraZeneca judgment rendered 

by the General Court in July 2010) 

– Parent companies of the international removals company Team Relocations 

in their appeal to the General Court against the European Commission’s decision 

to hold jointly and severally liable for the fine 

– German witnesses in US private litigation in depositions under the Hague 

Convention on the taking of evidence abroad 

� State Aid 

– Belgian g Government (separate ( p EU clearances regarding g g State aid measures for 

manufacturers of plasma-derived medicines and for pharmaceutical companies 

involved in R&D) 

� Counseling/Advisory 

– Compliance programmes for numerous companies, including Sasol, in connection 

with an international extensive compliance audit, and an international FMCG 

manufacturer in connection with annual compliance audits

Representative Clients 

� ACAS / ECAS 

� Air Products 

� Allergan 

� AREVA 

� Astellas 

� AT&T 

� BASF 

� Bayer MaterialScience 

� Boston Scientific 

� Bristol-Myers Squibb 

� Bucyrus 

� Cargolux 

� CEPA 

� Cisco 

� EU Commission 

� General Electric 

� Genzyme 

Life Sciences – Representative Matters 

� Gilead Sciences 

� Intel 

� IPC Media 

� Ipsen 

� Komatsu 

� Kraft Foods 

� Kubota 

� Monsanto 

� NovoNordisk 

� Overgas 

� Pfizer 

� Philip Morris International 

� Ranbaxy 

� Renesas 

� RIZIV 

� Royal Belgian Shipowners 

� Sanyo 

� Sasol 

� Sea-Invest 

� Shire Pharmaceuticals 

� Visa 

Mergers and acquisitions: 

� Representing Boston Scientific in its acquisition of Guidant 

Abuse of dominance: 

� Representing EFPIA, the European Federation of Pharmaceutical Industries and Associations, as 

an intervener before the European Courts in AstraZeneca’s appeal against a European 

Commission decision imposing a fine against AstraZeneca for alleged abuses of dominance 

Restrictive Practices: 

� Representing a pharmaceutical company in a European Commission investigation focusing on 

allegations of restrictive agreements regarding the entry of generic competition (“pay-for-delay”) 

� Representing a pharmaceutical company in an EU Member state investigation into potential 

restrictive agreements regarding the entry of generic competition 

Compliance, including parallel trade: 

� Advising gppharmaceutical companies p regarding g gthe European p Commission’s enforcement ppolicy y 

regarding parallel trade of pharmaceutical products 

� Advising pharmaceutical companies on various competition compliance matters, such as 

distribution strategies and competitor cooperation agreements 

Assistance in EU Commission’s general competition inquiry into the pharmaceutical sector: 

� Assisting several large pharmaceutical companies in the EU Commission’s general inquiry into 

the pharmaceutical sector

Fast Moving Consumer Goods – Representative Matters 

We have deep experience in advising FMCG suppliers on complex competition concerns. For example, we 

regularly advise on mergers and acquisitions affecting retail markets and provide advice on issues such as: 

competitive intelligence gathering; price recommendations; promotions and price-marked packs; trade 

discount schemes; price signalling; hub-and-spoke infringements; trade association activities and supply 

chain innovations. 

Representative matters in relation to FMCGs include: 

� Obtaining clearance for Kraft Foods’ US$19 billion hostile bid for Cadbury PLC from the European Commission 

including the negotiation of remedies required to secure Phase I clearance. 

� Obtaining clearance for Kraft Foods’ US$7.2 billion acquisition of the biscuit business of Danone from the 

European Commission and national competition authorities globally involving the negotiation of divestment 

remedies. 

� Obtaining clearance for Philip Morris International in relation to the acquisition of Papastratos SA, a transaction 

that was cleared without remedies on the basis of complex econometric modelling. 

� Providing a detailed compliance policy and online training tool for a large FMCG manufacturer including 

preliminary compliance audits and feedback sessions, development of training materials and advising on the 

substance of an online training system for employees. 

� Providing counselling to a European branded goods manufacturers trade association. 

Energy – Representative Matters 

We have significant experience in providing competition law advice to suppliers of energy equipment and major energy 

companies. Particular challenges arise in this area from the interplay between competition law and sector-specific 

regulation g and the shared enforcement powers p of the European p Commission’s Competition p and Energy gy departments. 

p 

Representative matters handled by our attorneys include: 

Mergers and acquisitions: 

� Securing EU merger clearance and coordinating worldwide merger filings for Areva regarding its acquisition of Alstom’s 

energy transmission and distribution business and the creation of a joint venture between Areva and Urenco in the uranium 

enrichment technology area. 

� Coordinating worldwide merger filings regarding the creation of a strategic alliance between GE Energy and Hitachi in the 

nuclear energy sector. 

� Securing EU merger clearance and coordinating worldwide merger filings for GE regarding various acquisitions in the energy 

equipment sector. 

� Representing Iberdrola in proceedings before the European Commission and national courts in relation to the proposed Gas 

Natural/Endesa merger. 

� Representing Energias de Portugal (EDP) in its application for annulment of the European Commission’s prohibition of the 

EDP/ENI/GDP merger before the General Court. 

� Securing EU merger clearance in relation to the merger of Austrian energy companies Verbund/EnergieAllianz. 

� Obtaining, on behalf of one of the sellers, merger clearance in Germany in relation to the E.ON/Ruhrgas merger and 

representing German energy utility companies in several merger control cases in Germany. 

� Representing Belgian transmission companies in merger proceedings before the Belgian competition authority.

Energy – Representative Matters (cont.) 

Cartels: 

� Representing Areva regarding the European Commission’s cartel investigations in the gas insulated switchgear and power 

transformer sectors and in the subsequent proceedings before the General Court Court. 

� Representing a major Japanese company regarding the European Commission’s cartel investigation in the power cables 

sector. 

Abuse of dominance: 

� Representing Overgas, one of Bulgaria’s largest privately held companies, as a complainant before the European 

Commission in abuse of dominance proceedings against the State-owned incumbents in the natural gas area. 

� Representing a leading wind turbine manufacturer in an abuse of dominance investigation of the German competition 

authority. 

Assistance in EU Commission’s general competition inquiry into the energy sector: 

� Assisting a large network operator in relation to the European Commission’s sector inquiry into the gas and electricity 

markets. 

� Representing a major gas company in the sector inquiry inquiry. 

State aid: 

� Representing the Hungarian government in ICSID arbitration proceedings brought by electricity generators Electrabel and 

AES, with special focus on stranded costs State aid issues. 

� Representing Energie Baden-Württemberg AG (EnBW) before the European Commission and the General Court in a 

challenge against the Commission’s authorization of the German CO2 emission trading plan (Case T-387/04). 

Compliance audit and advice: 

� Conducting an extensive internal competition compliance audit for a multinational company active in oil & gas exploration 

and in the area of petrochemical products. 

Technology, Media, Telecommunications – 


We have significant experience in advising TMT companies on complex competition concerns, including 

mergers and acquisitions and interventions in merger control procedures in the EU and in Member States, 

standard-setting, licensing, patent enforcement and litigation strategies 

Representative matters: 

� Securing EU merger clearance for Intel regarding its acquisition of McAfee, and coordinating international filings 

� Advising a provider of online music on EU competition law matters in relation to collecting societies 

� Advising one of the Majors in connection with a Commission investigation under Article 102 TFEU 

� Advising one of the Majors regarding interventions in merger control procedures in several jurisdictions 

� Coordinating international merger filings for Cisco in its acquisition of Starent Networks 

� Representing NBCU in merger filings regarding Comcast’s acquisition of a majority stake in NBCU 

� Securing EU merger clearance for Siemens in its acquisition of UGS, a major US software developer 

� Representing NBCU in German merger proceedings relating to the intended creation of a video‐on‐demand 

platform

Chemicals – Representative Matters 

We have significant and long-standing experience from advising companies active in the (petro-) chemicals 

industry on a broad array of competition law concerns, including joint production, sub-contracting, joint 

purchasing and technical cooperation agreements, information exchanges, and merger control matters in the 

broadest sense: 

Representative matters in the chemical industry include: 

� Advising on the lawfulness of minority shareholdings in competing undertakings on behalf of several companies 

active in the petrochemical sector; 

� Advising on the lawfulness of production joint ventures, exclusive supply arrangements and swap agreements 

between several chemical companies; 

� Obtaining EU merger control approvals for BASF in relation to several acquisitions, most recently that of Cognis, 

another large chemical company; 

� Advising a large European chemicals company on international joint production / joint venture agreements with 

competitors; and 

� Advising Monsanto in various merger proceedings before the European Commission and coordinating 

international merger filings 

Transport & Logistics – Representative Matters 

We have significant experience advising companies active in transport and logistics, including shipping 

companies, airlines, freight forwarders and stevedoring companies, on matters ranging from international 

cartel investigations to EU merger control proceedings and cooperation agreements. Representative matters 

include: 

� Representing Mitsui OSK Lines in obtaining merger control clearance for its acquisition of Nissan Motor Carrier 

Company. 

� Representing Sea-Invest in connection with its acquisition of a controlling stake in stevedoring company EMO- 

EKOM, including in connection with the in-depth investigation by the European Commission under the EU Merger 

Control Regulation. 

� Representing Cargolux in the European Commission investigation into the Air Cargo cartel including the 

coordination of Cargolux’s defense in various other jurisdictions. 

� Representing several freight forwarding companies in connection with European and national cartel investigations. 

� Representing a group of leading liquid bulk shipping companies in relation to the establishment of a pool. 

� Representing the European Community Shipowners Association (ECSA) in discussions with the European 

Commission concerning the introduction of new guidelines on the application of EU competition rules to maritime 

transport.

Global 

Ranked in Globally, US, EU, Belgium 

6 lawyers ranked 

UK 


Europe 

Leading firm in Belgium 

Leading firm in UK 

Leading firm in Europe 


USA 

Top tier firm nationally 

Top tier firm in DC (10 years) 

Ranked in California 


EU/UK/German Recognition 

Global Recognition 

Bill Baer – World’s Leading Competition Lawyer (2 years) 

12 lawyers listed 

PLC Competition Super League 

Ranked #14 Worldwide 

Recommended for US, EU and Brussels 

PLC Which Law Firm? 

Recommended firm for EU and Belgium 

Leading ffirm for f US S and Washington DCC 

PLC Which Lawyer? 

3 EU attorneys 

8 US lawyers 

Debbie Feinstein - “50 Most Influential Women 

Lawyers in America” 

Ranked #1 in antitrust (8 years) 

Tier 1 in US 

(3 attorneys mentioned) 

Ranked in Belgium 


Ranked in UK 


Global 

Ranked No. 4 in the World 

Global Elite firm 

Recommended in Brussels 

USA 

Elite in Washington DC 

Women in Antitrust 

3 attorneys listed 

Chambers Europe 2011, 

Competition/European Law , BELGIUM 

This firm recently strengthened its EU competition practice with the recruitment of Annette Schild and Silvio 

Cappellari from Shearman & Sterling. The team now includes four German‐qualified partners, making it a perfect fit 

ffor clients li from f this hi jjurisdiction. i di i 

KEY INDIVIDUALS: Much admired department head Marleen Van Kerckhove is mainly recognised for her merger 

control expertise. Highlights include acting for Sanyo on the clearance of its EUR5.9 billion sale to Panasonic, which 

was the first merger between two major Japanese companies to come before the EC. She also has considerable 

experience of the pharma industry. Highly reputed partner Annette Luise Schild, who recently moved across from 

Shearman & Sterling, represented Areva in the competition and merger control aspects of the sale of its 

transmission and distribution businesses to Alstom and Schneider. Partner Luc Gyselen is praised for his 

performance on antitrust cases. He is also involved in state aid matters, recently assisting the Belgian government 

with obtaining clearance from the EC in relation to state aid measures for manufacturers of plasma‐derived 

medicines. "He knows how the Commission looks at things, the procedures that they use, and also the people who 

work there ‐ all of which is extremely helpful for us," say sources. "He also provides excellent practical judgement: 

he is not the kind of lawyer who expounds theories that are not ultimately helpful for your business ‐ he really tries 

to remove barriers." Partner Silvio Cappellari is recognised for his advice on merger control matters, especially 

before the EC, but also at a national level before the German and Italian competition authorities. He also handles 

Article 102 cases cases. 

Competition/European Law, EUROPE‐WIDE 

Arnold & Porter received a considerable boost recently, gaining a large share of Shearman & Sterling’s former 

practice in Germany, including the well‐known Annette Luise Schild. It has expanded its European team from 11 

to 18 lawyers and receives significant praise from clients. It is especially noted for its strength in the 

pharmaceutical sector. Merger control highlights include securing competition clearance for Kraft's GBP12 billion 

hostile bid for Cadbury and securing Phase 1 clearance of Panasonic’s acquisition of Sanyo. Other key clients 

include Philip Morris International and Monsanto. 

Sources say: “They are extremely responsive and thoughtful; they take the time to learn and understand our 

specific business.” “They have a good cross‐section of lawyers from a number of different jurisdictions so they are 

able to give an overview of the region, but we also benefit from their American style, given their roots.” “Unlike a 

lot of lawyers, they are prepared to put their heads on the block. They give good practical advice and suggest a 

real course of action.” 

15


EMEA Legal 500 2011, Competition 

Arnold & Porter LLP is recommended for ‘“heavy” competition issues including cartel work and merger 

issues’, and the team’s ‘availability, friendliness and competence’. It secured EU competition clearance 

for Kraft Foods’ £12bn hostile bid for Cadbury, and Panasonic’s acquisition of Sanyo. It represented 

Areva before the General Court against two European Commission decisions in the gas insulated 

switchgear, and power transformer cases, and handles good state aid work. Annette Luise Schild is an 

‘extraordinary antitrust lawyer with excellent know‐how and judgement, perfectly connected within the 

Commission’. The team also provides German competition law advice, where Silvio Cappellari assists. 

Marleen Van Kerckhove is also recommended. 

UK Legal 500 2011, EU Competition 

Arnold & Porter (UK) LLP has advised on some big‐ticket merger work out of its London office, and is gaining 

expertise acting for clients on hostile acquisitions. It acted for Monsanto in the European Commission’s Phase II 

investigation of its sale of a business to Syngenta. Tim Frazer is well known for his representation of major 

pharmaceuticals companies, and Susan Hinchliffe is also recommended; both are ‘knowledgeable, practical, 

excellent to work with, and very responsive’. 


Chambers 2012, UK / EU Competition 

Arnold & Porter is enjoying a burgeoning reputation and strong praise from market commentators. The team is described 

as "knowledgeable and practical" by sources and it offers in‐depth sector expertise in the moving consumer goods, retail, 

biotech, telecommunications and pharmaceutical industries. Recent highlights include advising Philip Morris on its 

proposed acquisition of Protabaco in Colombia. 

KEY INDIVIDUALS: Tim Frazer is "impressively responsive and commercial," according to market sources. He heads the UK 

competition practice and advises clients on issues across the full range of competition law. Susan Hinchliffe has been 

advising Monsanto in acquiring clearance from the EC to dispose of its global sunflower business to Syngenta. 

Arnold & Porter was named in and achieved second place in The Lawyer's shortlist for "Competition/ 

Regulatory Team of the Year ." 

JUVE 2012, German Competition 

Ranked by JUVE for German competition law as one of very few law firms without a German office. 

“Recommended practice in antitrust with a visible presence in the Brussels market, as demonstrated by its work for 

BASF and Intel in complicated EU merger controls. The depth of its antitrust experience came to the fore in its 

representation of various parties in prominent antitrust proceedings last year. This is a team to take seriously, 

confirm competitors, who also point to its close ties to the well‐known US practice.” 

Strengths: Good contacts in the US and France, established international cooperation. 

Recommended lawyers: Annette Luise Schild (“one of the most important antitrust lawyers in Brussels” ‐ 

competitor), Silvio Cappellari (“very competent and pleasant” ‐ competitor).

Snapshot of the EU team 

Marleen Van Kerckhove, Partner 

Marleen heads up the firm's European competition practice and its Brussels office. Her practice 

encompasses advice and representation before EU and national antitrust agencies on merger control, 

abusive conduct, price fixing and other restrictive practices, as well as litigation before European courts. 

She has steered many transactions successfully through EU and national merger control reviews across 

various industry sectors. In addition, she has advised extensively on the application of EU competition law 

to the pharmaceutical sector, and on the interplay between antitrust and intellectual property law. Ms. 

Van Kerckhove is a frequent speaker at programs and conferences in Europe, Japan and North America. 

Silvio Cappellari, Partner 

Silvio’s practice focuses on a broad range of issues under European and German competition law. 

He has represented clients in high‐profile merger control cases before the European Commission and the 

German Federal Cartel Office, including several second phase proceedings. He also regularly advises clients 

on the compliance of joint ventures and other cooperation arrangements with Article 101 TFEU, as well as 

on abuse cases under Article 102 TFEU. 

Tim Frazer, Partner 

Tim has over 25 years experience in competition and antitrust law representing and advising clients in a 

range of competition issues including merger, transactional, and conduct cases. He has particular 

experience in the Life Sciences industry including advising leading pharmaceutical companies on parallel 

trade, abuse, and other conduct issues, and on State aids. He divides his time equally between the firm's 

London and Brussels offices. 


Luc Gyselen, Partner 

Luc joined Arnold & Porter LLP in July 2004 after 20 years of public service at various EU institutions, 

primarily i il at t th the EEuropean CCommission i i (as ( a member b of f th the LLegal lSService i and d lt later hholding ldi several l senior i 

positions in DG COMP). His competition law practice encompasses advice and representation before EU 

and national agencies on merger control, abusive conduct, cartels, other restrictive practices, and state 

aids. 

Susan Hinchliffe, Partner 

Sue advises clients operating in a variety of industry sectors including: pharmaceuticals branded 

consumer goods, and tobacco on a broad range of EU and UK competition law issues. Her 

competition law practice has a particular focus on merger control both in EU and UK, however she 

also advises on European product regulations applying to a broad range of sectors including food 

and chemicals (including registration, evaluation, authorisation and restriction of chemical 

substances). 

bt ) 

Annette Schild, Partner 

Annette concentrates her practice in merger and acquisition transactions. Having worked in Brussels, 

Washington DC, and New York, she has successfully defended numerous companies in investigations of 

their proposed mergers by the EU, German, and French competition authorities. She has also advised on 

numerous other high‐profile matters, including cartel investigations, antitrust complaints, horizontal 

and vertical collaborations, commercial arrangements, and intellectual property matters. She regularly 

lectures on EU competition law issues and is a co‐author of the Munich and the Brussels commentaries 

on European and German competition law.



Stephanie Birmanns, Counsel 

Stephanie is a German‐qualified lawyer and has more than a decade of experience advising on a broad 

range of matters under German and European antitrust law. She regularly represents clients in merger 

control cases before the European p Commission and the German Federal Cartel Office, , including g a number 

of complex second phase investigations with and without remedies. Her merger control practice also 

includes the assessment of filing obligations in other jurisdictions worldwide and the coordination of 

multijurisdictional filings. 

Niels Ersbøll, Counsel 

Niels is a Danish qualified lawyer and has more than ten years' experience practicing EU competition law. 

After a short term at the European Commission's Directorate General for Competition, and several years 

spent practicing in the Brussels‐based EU competition law groups of leading Danish and international law 

firms, he joined Arnold & Porter LLP's Brussels office at the beginning of 2004, shortly after the office was 

established. He has extensive experience advising on cartels and other restrictive practices, merger 

control at EU and national level, , and compliance p counseling. g 

Axel Gutermuth, Counsel 

Axel assists clients in merger control proceedings before the European Commission and the German 

Federal Cartel Office. He has participated in several second phase German and EC merger proceedings, 

including landmark cases such as Tetra Laval/Sidel and Oracle/PeopleSoft. He regularly advises clients 

on the compliance of joint ventures and other cooperation agreements with Articles 101 and 102 of the 

Treaty on the Functioning of the European Union and the specific rules on cooperation in distribution, 

research and development, technology transfer, and production, as well as in government 

investigations. 

Stephanie Birmanns, Counsel 

Luc Gyselen, Partner 

Direct Line: +32 (0)2 290 7816 

Direct Line: +32 (0)2 290 7831 

EE‐mail: mail: Stephanie Stephanie.Birmanns@aporter.com 

Birmanns@aporter com EE‐mail: mail: Luc Luc.Gyselen@aporter.com 

Gyselen@aporter com 

Silvio Cappellari, Partner 

Direct Line: +32 (0)2 290 7815 

E‐mail: Silvio.Cappellari@aporter.com 

Niels Ersbøll, Counsel 

Direct Line: +32 (0)2 290 7829 

E‐mail: Niels.Christian.Ersboell@aporter.com 

Tim Frazer, Partner 

Direct Line: +44 (0)20 7786 6124 

E‐mail: Tim.Frazer@aporter.com 

Axel Gutermuth, Counsel 

Direct Line: +32 (0)2 290 7832 

E‐mail: Axel.Gutermuth@aporter.com 

Susan Hinchliffe, Partner 

Direct Line: +44 (0)20 7786 6122 

E‐mail: Susan.Hinchliffe@aporter.com 

Annette Schild, Partner 

Direct Line: +32 (0)2 290 7814 

E‐mail: Annette.Schild@aporter.com 

Marleen Van Kerckhove, Partner 

Direct Line: +32 (0)2 290 7817 

E‐mail: Marleen.VanKerckhove@aporter.com

EU Competition Law Update - Arnold & Porter LLP

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