The European Antitrust Review 2012

Published by Global Competition Review in association with Allen & Overy – Studio Legale Associato Bingham McCutchen bpv Braun Partners bpv Hügel Rechtsanwälte CMS Adonnino Ascoli & Cavasola Scamoni Compass Lexecon DLA Piper Spain SL Eisenberger & Herzog Epstein, Chomsky, Osnat & Co Gide Loyrette Nouel AARPI LLP Homburger Hunton & Williams LLP K&L Gates LLP Kirkland & Ellis International LLP Lademann & Associates GmbH Latham & Watkins LLP Marques Mendes & Associados Motieka & Audzevic˘ius Popovici Nit¸u & Asociat¸ii SJ Berwin LLP Squire Sanders Steptoe & Johnson LLP Sullivan & Cromwell LLP Szabó Kelemen & Partners Attorneys Vogel & Vogel

www.globalcompetitionreview.com EU: Commercial Agreements

Market Data Supply Agreements

Brian Hartnett, Diarmuid Ryan and Nikos Dimopoulos Squire Sanders

In most markets, firms’ ability to maintain a competitive edge can be Recent years have seen an increased tendency by the European greatly enhanced if they are able to intelligently position themselves Commission (Commission) and other national competition authori- in response to evolving market trends. Their ability to do so can ties throughout the EU to invoke article 101 of the Treaty on the be increased by having access to up-to-date market data, such as Functioning of the European Union (TFEU)1 to clamp down on the developments in raw material prices, trends in downstream pricing, exchange of competitively sensitive information between competi- volumes being sold into the market, statistics on levels of imports tors for the purposes of facilitating collusion, whether the competi- and exports, levels of R&D investment and so on. In response, sup- tively sensitive data is directly communicated by the participants or pliers of market research information and raw market data statistics is indirectly communicated. increasingly offer for sale data sets focused on specific markets and A recent case involving direct communications between com- market segments, offering varying levels of statistics and data cover- petitors that illustrates the severity with which the EU competition ing a range of variables. In addition, many firms seek to proactively authorities (in this instance, the Office of Fair Trading (OFT) in the benchmark their performance (on a range of parameters) against UK) view such information exchanges is the Professional services that of comparable firms, in an effort to identify ‘best practice’, to loan products case,2 which involved individuals in the professional the mutual benefit of participating firms. Indeed, one of the pre- practices coverage team at the Royal Bank of Scotland (RBS) – in conditions of a perfectly competitive market (highly fragmented on the course of a number of contacts on the fringes of social, client and the supply and demand sides) is that suppliers and customers have industry events over a brief period of about four months – engaging complete information on prevailing competitive conditions on the in ‘general disclosures on future pricing’ to their counterparts at assumption that the better informed rivals are about each other’s Barclays Bank regarding RBS professional services loans, as well as pricing and marketing strategies, the more intensely they will com- ‘specific confidential future pricing information in relation to two pete with each other. proposed loan facilities’. Although the Barclays employees did not However, in some circumstances, purchasing certain types of disclose any information to the RBS employees about Barclays’ loans market data from a third party such as consultancy services pro- to professional services firms (ie, this was one way disclosure from viders or market research organisations, without having any direct RBS), the OFT’s press release expressly notes that the OFT ‘found contact with market rivals, can nevertheless raise competition law evidence that the information was taken into account by Barclays compliance issues and expose the buyer, the market data supplier in determining its own pricing’ (there is no mention of any evidence and/or the firm (or firms) that supplied the underlying data to a that RBS had any visibility over whether and to what extent Barclays range of risks, including: was taking its disclosures into account). The OFT imposed a fine of • heavy civil fines on the firm or firms involved (up to 10 per cent £28.5 million on RBS; Barclays, having ‘blown the whistle’, received of consolidated worldwide revenues); immunity from fines under the OFT’s leniency policy. Had RBS, • third party civil actions seeking damages; rather than Barclays, informed the OFT first about its disclosures, • in the UK, director disqualification and individual criminal liabil- it follows that Barclays may have been exposed to a similar level of ity for individuals who can be shown to have acted dishonestly; fine, despite not having made any disclosures of its competitively and sensitive data to RBS. • adverse publicity and the expense and drain on management time Recent cases involving the indirect exchange between competi- involved in responding to regulatory enforcement proceedings. tors of competitively sensitive data include the Organic Peroxides3 (2003) and Heat Stabilisers4 (2009) cartel cases, where the cartelists The serious potential consequences of breaching competition law in both cases had used the same consultancy firm (AC Treuhand) to mean that it is crucial for businesses to be able to clearly identify the provide ‘clerical-administrative services’ that extended to organising circumstances under which obtaining market data may infringe the cartel meetings and collecting and treating certain information con- EU competition rules. cerning the commercial activities of the cartel participants and com- municating this data to the other participants. The Commission not Information exchange as a violation of the EU only fined the organic peroxide and heat stabiliser producers but also competition rules imposed fines of €1,000 (organic peroxides cartel) and €348,000 Almost every collusive arrangement involves a certain degree of (heat stabilisers cartel) on AC Treuhand for facilitating these cartels. information exchange between the various participants, ranging The European Court of First Instance (now the General Court), in from ad hoc discussions between competitors about their respec- upholding the Organic Peroxides decision, rejected AC Treuhand’s tive future pricing intentions to the regular and systematic exchange argument that a consultancy firm cannot be regarded as a co-perpe- between cartelists of future prices, production volumes or future trator of an infringement because it does not carry out an economic sales projections by customer. Such exchanges of competitively sensi- activity on the relevant market affected by the infringement and tive information between rivals are among the most serious infringe- because its contribution to the cartel is subordinate.5 In the UK, the ments of EU competition law as they are the means whereby rivals Replica Football Kit6 (2003) and Toys and Games7 (2003) cases can fix prices, agree or concert on quotas, share markets and cus- focused on indirect exchanges of future pricing intentions between tomers, or rig bids. retailers via common suppliers, the supplier discussing with each

10 The European Antitrust Review 2012 EU: Commercial Agreements

participating retailer its future pricing intentions and then disclos- sionals and self-regulating bodies,13 adopt the same ‘effects analysis’ ing the content of its discussions to the other participating retailers approach to pure information exchange agreements. (commonly referred to as ‘hub-and-spoke’ or ‘A-B-C’ cartel cases). T-Mobile muddies the waters ‘Pure’ data agreements – the traditional ‘effects’ analysis The distinction of the ‘by object’ or ‘by effect’ assessment of pure The cases mentioned above all concerned the exchange of informa- information exchanges has, however, been made less clear as a result tion in an explicitly collusive context. However, and as illustrated of some interpretations of the European Court of Justice (ECJ) judg- by a recent ongoing OFT case in the motor insurance sector,8 the ment in the T-Mobile Netherlands case.14 risk of infringement cannot be ruled out even in a scenario where a This case concerned a single meeting on 13 June 2001 between all firm purchases market data from a bona fide third party (eg, con- the Dutch mobile telephony providers, during which they discussed sultancy services providers or market research organisations) and the terms by which they intended to remunerate dealers for conclud- where, unlike the cases mentioned above, there is no evidence of ing postpaid mobile telephony subscriptions with new customers. an explicit collusive objective. In this article, we refer to such sce- The Dutch competition authority found that the mobile telephony narios as examples of ‘pure’ data agreements (or ‘pure’ informa- firms discussed ‘the extent, timing and details of the proposed reduc- tion exchange). Such ‘pure’ information exchanges can also infringe tion of standard dealer remunerations’ and that ‘the subject-matter competition law. However, almost by definition, ‘pure’ information of the exchange of information... was... the question of... on which exchange cases lack many of the traditional hallmarks of collusive date, to what extent and subject to which arrangements the intended behaviour engaged in knowingly by the participants (eg, secret meet- reduction of standard dealer remunerations was to be implemented ings, smoke-filled rooms, bogus meeting agendas and other smoking by each undertaking’. In other words, this case concerned an explic- gun documents) and so can be difficult to identify from a compliance itly collusive discussion between competitors during which they coor- perspective. dinated their respective terms with downstream dealers. When the The approach to assessing ‘pure’ information exchanges was Dutch competition authority’s infringement decision was appealed, set out in the seminal case of UK Agricultural Tractor Registration the Dutch administrative court hearing the appeal referred certain Exchange,9 in which the Commission found that the exchange of preliminary questions to the ECJ under article 267 TFEU, focused detailed and commercially-sensitive information in a highly concen- on whether the Dutch authority was entitled to impose heavy fines trated market between members of a trade association, even though it for a collusive discussion at a single meeting without having to prove did not underpin any other anti-competitive arrangement, neverthe- any anti-competitive effect (the ECJ’s answer on this point was a less constituted an infringement of article 101 TFEU in itself because firm ‘yes’). However, in responding to these questions, the ECJ made its effect was to increase the likelihood of collusive outcomes. The some broad statements about ‘by object’ infringements in the context case concerned an information exchange system participated in by of information exchange; in particular that ‘an exchange of informa- eight members of the Agricultural Engineers Association – between tion which is capable of removing uncertainties between participants them accounting for 88 per cent of the UK tractor market – under as regards the timing, extent and details of the modifications to be which the AEA (via a third party data processing company) provided adopted by the undertaking concerned must be regarded as pursuing each participant data (originally sourced from the UK Department of an anti-competitive object’. These statements are arguably broad Transport vehicle licensing database) on the individualised sales and enough to be applicable not only to explicitly collusive information market share of each of the other participants broken down by vari- exchange (as in the T-Mobile case itself) but also to pure information ous regions (UK, county and dealer territory) on a monthly, quar- exchange not underpinning an explicitly collusive arrangement. terly and yearly basis. In its analysis, the Commission focused on Such an interpretation has the potential to significantly extend the restrictive ‘effects’ of the information exchange system between the application of the competition rules to the pure exchange of the competing tractor suppliers and concluded that its effects, given information – in particular, by easing the burden of proof on the the prevailing highly concentrated market structure and high entry Commission and national competition authorities, to the extent that barriers, were the prevention of residual competition and the raising they can treat the exchange or divulging of information as having an of barriers to entry for non-members of the exchange system.10 The anti-competitive ‘object’ thereby removing the need for any evidence Commission did not base its case on any claimed anti-competitive to be considered (in deciding whether or not an infringement has object of the information exchange system. occurred) with regards to whether or not the information exchange Until recently, the UK Agricultural Tractor Registration has given rise to an anti-competitive ‘effect’. Exchange approach of analysing the effects of pure information exchange agreements has been followed by the Commission and Subsequent developments – the Commission horizontal the national competition authorities in the EU. For instance, in its cooperation guidelines and the UK Private motor 2008 Guidelines on the application of article [101] to maritime insurance information exchange case transport,11 the Commission confirms that in assessing information In light of increased calls for guidance (in particular in light of the exchange systems – other than those that are ancillary to a cartel or uncertainty occasioned by the T-Mobile Netherlands judgment), in other explicitly collusive arrangement – it is only where an examina- December 2010, the Commission adopted a new set of Guidelines tion of the market structure and characteristics of the information for the assessment of cooperation agreements between competitors exchanged (level of sensitivity, whether available from other sources, (Guidelines)15 that include a new section on information exchange. level of aggregation, age of data, periodicity of exchange and so on) This is considered to provide some much needed legal certainty, and leads to the conclusion that the effect of the information exchange to be a welcome attempt to clarify the complex and often conflicting is to reduce or remove the degree of uncertainty as to the operation case law and decisions at EU level. of the market with the result that competition is restricted that an The Guidelines draw a helpful distinction between exchanges of infringement of article 101 occurs. The OFT guidelines on Agree- information that have the ‘object’ of restricting competition (those ments and concerted practices,12 and on Trade associations, profes- that are intended to facilitate a cartel or other collusive behaviour) www.globalcompetitionreview.com 11 EU: Commercial Agreements

and other forms of information exchange that must be analysed on a analysis of all other types of pure information exchange is also illu- case-by-case basis in order to establish whether they have any restric- minating. tive effects. At paragraphs 73 and 74, the Guidelines state that: The most recent case concerning pure information exchange is Exchanging information on companies’ individualised intentions the on-going OFT investigation into the private motor insurance concerning future conduct regarding prices or quantities is par- sector.18 This case highlights the difficulties that remain in assessing ticularly likely to lead to collusive outcomes. Informing each other information exchanges in the context of benchmarking performance. about such intentions may allow competitors to arrive at a com- The investigation concerned a private motor insurance premium mon higher price level without incurring the risk of losing market data tool sold by Experian, a market research firm, to private motor share or triggering a price war during the period of adjustment to insurers. The ‘Whatif? Private Motor’ tool essentially repackaged a new prices. Moreover, it is less likely that information exchanges ‘quotes engine’ which a third party IT software provider, SSP Lim- concerning future intentions are made for pro-competitive reasons ited, sold to insurance brokers to enable them to compare the pricing than exchanges of actual data. Information exchanges between of the universe of motor insurance products available to insure a competitors of individualised data regarding intended future prices given risk profile. The SSP quotes engine was based on information or quantities should therefore be considered a restriction of competi- on insurance premia supplied to SSP by a large number of motor tion by object. insurers for inclusion in the quotes engine. The OFT did not object to SSP making its quotes engine available to brokers, but did object The Guidelines also state that information exchanges that have the to Experian selling essentially the same tool rebranded as ‘Wha- object of restricting competition will infringe article 101(1) TFEU, tif? Private Motor’ back to the insurers as a pricing and competitor and would normally be considered and fined as cartels.16 analysis tool. The exchange of other types of information – such as past or cur- The OFT has taken the view that such practice was a ‘by object’ rent prices, quantities, production costs, capacity and customer data infringement, relying on the contention that the individualised – will require a traditional case-by-case analysis to establish whether premia data contained in Whatif? Private Motor was (arguably for they have any restrictive effects on competition. For an information technical reasons) released to insurers two to three weeks before exchange to have restrictive effects on competition within the mean- the premia went ‘live’ (ie, were made available to brokers for the ing of article 101(1) TFEU, it must be likely to have an appreciable purposes of quoting new insurance policies) and disregarding any adverse impact on one (or several) of the parameters of competition benefits or efficiencies derived from using such an analysis tool that such as price, output, product quality, product variety or innova- would be highly relevant in a more traditional ‘effects’ analysis. tion. The assessment of any potential restrictive effects on compe- In fact, the OFT originally took the position that even if the tition will be based on the characteristics of the market (whether premia data contained in the Whatif? Private Motor tool was infor- it is concentrated, transparent, non-complex, stable or symmetric) mation on current rather than future pricing intentions (eg, if there and on the characteristics of the information exchange (whether it was no time gap between the Whatif? Private Motor tool being made is commercially sensitive, the level of aggregation, the age of the available to insurers and the premia going ‘live’), this was still a by data, frequency of the information exchange and whether or not it object infringement because the regular exchange of such current is publicly available). data revealed intentions on future behaviour, relying on an earlier The Guidelines also recognise that information exchanges that consultation draft of the Commission’s horizontal cooperation guide- restrict competition may nonetheless create efficiencies that, in cer- lines that alluded to this concept, explicitly relying on the T-Mobile tain circumstances, may outweigh any anti-competitive effects and Netherlands judgment. This concept of current data revealing future therefore be exempt under article 101(3) TFEU. An information pricing intentions did not make the final version of the Commission’s exchange may be justified inter alia if it leads to the intensification guidelines and so has also been dropped by the OFT. of competition and if it generates significant efficiency gains (pro- The OFT also argues that the premia data exchanged was not vided it is indispensable for the creation of the claimed efficiencies). sufficiently publicly available, despite the fact that it could, in theory, In particular, the Guidelines give performance benchmarking as an be replicated by obtaining premia from each insurer (eg, from their example of how the exchange of information between competitors websites; for instance by ‘screen scraping’ techniques) and even may lead to efficiency gains and enable companies to become more though the WhatIf? Private Motor product was available to anyone efficient to the benefit of the market and consumers in particular at a price. (although the Guidelines make clear that it would be necessary to Although the OFT in this case recognised that market analysis prove that the data’s type, aggregation, age, confidentiality and fre- or benchmarking tools such as the WhatIf? Private Motor tool may quency of the exchange is of the lowest risk indispensable for creat- result in lower barriers to entry and expansion (by providing infor- ing the claimed efficiency gains). However, the Guidelines suggest mation where the insurer has little or no underwriting experience that for the purpose of benchmarking, an exchange of individualised and is therefore unable accurately to rate the risk), in its view not data (especially on future intentions) would generally not be indis- all of the information exchanged in this case appeared to be indis- pensable because aggregated data could also generate the claimed pensable for any pro-competitive purpose and therefore the arrange- efficiency gains while exposing the exchange to a lower risk of a ment could not benefit from an exemption from the article 101(1) collusive outcome.17 prohibition under article 101(3)19 (in any event, the article 101(3) In the authors’ view, the Commission Guidelines are to be exemption criteria are extremely complex to apply in practice20 and welcomed in particular because they clearly identify those limited so are unlikely to provide much legal certainty as regards future categories of information exchange that can constitute ‘by object’ market data agreements). infringements of the article 101(1) prohibition, thereby also hope- On 13 January 2011, partly in recognition of the fact that the fully putting an end to some of the broader interpretations of the T- case ‘presented novel facts in relation to information exchange’ and Mobile judgment (see below). In addition, the detailed consideration given that the case did not concern a secret cartel (indeed, quite the of what factors should be analysed when conducting a ‘by effects’ reverse), the OFT published its intention to accept binding commit-

12 The European Antitrust Review 2012 EU: Commercial Agreements

ments offered by the parties under investigation pursuant to section the insurance industry and beyond’ (suggesting an assumption of 31A of the Competition Act 1998 and consulting on those commit- potential applicability to data exchanges limited to current data, ments. The commitments focus on ensuring that future versions of without any explicit reference to market structure). the Whatif? Private Motor tool only provide premium data that is There exist in numerous highly competitive industries wide- sufficiently historical and sufficiently aggregated and anonymised, spread reliance on data sources, particularly data services provided very much along the lines of what would be the likely outcome of an by bona fide third parties, for the purpose of benchmarking and other effects analysis under the more traditional UK Agricultural Tractor pro-competitive objectives. Indeed, it is the existence of competition Registration Exchange case if such analysis concluded that, given the which prompts the demand for such services and it is such services market structure, the data exchanged was restrictive of competition that can stimulate further competition. Enforcement authorities need on account of being too granular, recent and/or periodic. to proceed carefully and with a high degree of clarity to ensure that The OFT states in its Notice that the commitments in this case demand for such legitimate services are not unnecessarily called into will ‘assist in promoting a culture of competition law compliance question as a result of creeping and unfortunate legal uncertainty. in any data exchanges throughout the insurance industry, and beyond’. Notes 1 Article 101(1) TFEU states: ‘The following shall be prohibited as Conclusion incompatible with the internal market: all agreements between While the application of the EU prohibition of anti-competitive undertakings, decisions by associations of undertakings and concerted agreements to the exchange of information between competitors has practices which may affect trade between Member States and which clearly developed and been clarified to some extent in recent years have as their object or effect the prevention, restriction or distortion of (in particular as a result of the Commission’s recent Guidelines), competition within the internal market…’. it remains to be seen how the proposed analytical framework will 2 See www.oft.gov.uk/OFTwork/cartels-and-competition/ca98/closure/loan- work in practice. In particular, the Private motor insurance infor- services/. mation exchange case concerns a pure market data agreement (not 3 See http://ec.europa.eu/competition/antitrust/cases/dec_ ancillary to any wider anti-competitive conspiracy) in a fragmented docs/37857/37857_100_1.pdf. and apparently competitive market place (characterised by pressure 4 See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010X on insurance premia), involving a benchmarking tool that has been C1112(01):EN:NOT. openly sold to the insurance industry for many years by a reputable 5 (Case T-99/04) AC-Treuhand AG v Commission 5 [CMLR] 962 market research firm (Experian) (one of a number of similar bench- 6 See www.oft.gov.uk/shared_oft/ca98_public_register/decisions/replicakits. marking tools). The ability of the OFT to characterise this as a ‘by pdf. object’ infringement does seem to imply a more aggressive approach 7 See www.oft.gov.uk/shared_oft/ca98_public_register/decisions/hasbro3. to the treatment of pure information exchange agreements, in par- pdf. ticular the suggestion in the OFT’s Notice that the proposed com- 8 See www.oft.gov.uk/about-the-oft/legal-powers/enforcement_regulation/ mitments should provide a blueprint for data exchanges ‘throughout Cartels/motor-insurance/. Squire Sanders is representing one of the

Avenue Lloyd George, 7 With 1,300 lawyers in 36 offices located in 17 countries on four continents, our global legal practice is in 1000 Brussels the markets where our clients do business. We also have strong working relationships with independent Belgium firms in Europe and the Middle East, as well as the Squire Sanders Legal Counsel Worldwide Network, Tel: +32 2 627 11 11 which includes independent firms across Latin America. Fax: +32 2 627 11 00 The client base of our global legal practice spans every type of business, both private and public, worldwide. We advise a diverse mix of clients, from Fortune 100 and FTSE 100 corporations to emerging 7 Devonshire Square companies, and from individuals to local and national governments. In the private sector, we provide the full EC2M 4YH range of legal advice required to implement practical strategies and resolve disputes. In the public sector, we counsel governments on privatisation of whole industries and on establishment of regulatory systems Tel: +44 20 7655 1000 under which new private businesses can compete. We also serve the regional needs of the countries and Fax: +44 20 7655 1001 cities we call home. Whatever is needed, we are able to deliver the seamless cross-practice, cross-border and industry- Diarmuid Ryan specific support that clients require for success in today’s competitive markets. [email protected] We are dedicated to our clients’ success and their satisfaction shows it. We continue to advise suc- cessor organisations of clients that we represented at our formation some 120 years ago. Brian Hartnett [email protected]

Nikos Dimopoulos [email protected]

www.ssd.com www.globalcompetitionreview.com 13 EU: Commercial Agreements

parties in this case (SSP Limited). 16 Such information exchanges are very unlikely to fulfil the conditions for an 9 OJ [1992] L68/19. individual exemption under article 101(3) TFEU. 10 The Commission’s decision was appealed: first to the Court of First 17 The Guidelines set out an example indicating how the Commission will Instance (now the General Court) and then to the European Court of Justice analyse the efficiency gains in the context of benchmarking (see para 108). (ECJ), both of which upheld the Commission’s decision and confirmed its 18 See www.oft.gov.uk/about-the-oft/legal-powers/enforcement_regulation/ analysis and conclusions. Cartels/motor-insurance/. 11 OJ [2008] C245/2 at paragraphs 38 – 59. 19 Article 101(3) provides that the article 101(1) prohibition is inapplicable in 12 OFT 401, available at: www.oft.gov.uk/shared_oft/business_leaflets/ca98_ the case of an agreement which ‘contributes to improving the production guidelines/oft401.pdf ; see paragraphs 3.17 – 3.23. or distribution of goods or to promoting technical or economic progress, 13 OFT 404, available at: www.oft.gov.uk/shared_oft/business_leaflets/ca98_ while allowing consumers a fair share of the resulting benefit and which guidelines/oft408.pdf ; see paragraphs 3.4 – 3.13. does not (a) impose on the undertakings concerned restrictions which are 14 Case C-08/08 T-Mobile Netherlands and Others v Raad van bestuur not indispensable to the attainment of those objectives; (b) afford such Nederlandse Mededingingsautoriteit, judgment of 4 June 2009, [2009] ECR undertakings the possibility of eliminating competition in respect of a I-4529. substantial part of the products in question’. 15 OJ [2011] C11/1. Although published in the Official Journal of the European 20 See the Commission’s guidelines on applying the article 101(3) criteria, Union on 14 January 2011, the guidelines were initially made available on available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX: DG-COMP’s website in December 2010. 52004XC0427(07):EN:NOT.

14 The European Antitrust Review 2012 about the authors

Brian Hartnett Nikos Dimopoulos Squire Sanders Squire Sanders Brian is managing partner of the Brussels office. Since entering pri- Nikos is based in our London office and is a member of the Antitrust vate practice in 1983, Brian has focused on the competition and & Competition practice group. Nikos advises clients in a wide range trade laws of the European Union (EU), with a particular emphasis of industries in relation to all aspects of EU and UK competition on the application of European competition rules. He is a barrister law, including merger control, antitrust, and market investigations and member of both the English and Irish Bars. Brian is trained undertaken by both the European Commission and National Com- in the Competition Directorate of the European Commission, and petition Authorities. His experience includes handling merger filings represents US and Europe-based companies both as plaintiffs and to the OFT/Competition Commission, the European Commission defendants before the Commission in Brussels and the European and to various competition authorities of EU and non-EU countries, Court of Justice in Luxembourg. He has extensive experience in as well as advising companies in UK cartel investigation and leniency the telecommunications, petrochemicals, IT and media, and retail applications. (FMCG) sectors. Brian has been involved in some of the most sig- Nikos also advises UK and international corporate clients on the nificant cartel and merger cases within the EU during the past 16 competition law aspects of commercial transactions and is active in years. providing competition law training (including devising and under- taking mock dawn raids). He also specialises in the area of private enforcement of competition law in the UK courts and in interna- tional arbitration. Nikos is a member of the Chartered Institute of Arbitrators.

Diarmuid Ryan Squire Sanders Diarmuid is a partner in our antitrust and competition practice based in our London office. Diarmuid specialises in all aspects of EU and UK competition, state aid and procurement law, includ- ing merger control; behavioural investigations by the UK regula- tors and the European Commission; joint ventures and strategic alliances; advising on the competition aspects of various types of commercial agreement such as distribution agreements, technol- ogy transfer agreements and research and development and spe- cialisation agreements; advising on competition-based disputes and litigation; advising on compatibility of various forms of cen- tral, regional and local government assistance/support with the EU state aid rules and, where necessary, advising on applications to the European Commission for state aid clearance; and advis- ing on the EU and UK public procurement rules, in particular in the context of regional/local authority development programs, including advising on the design and implementation of tender- ing and award processes. Diarmuid also specialises in competition compliance advice, including advising on compliance programmes and dawn raid programmes, devising and undertaking competi- tion compliance audits, and devising and undertaking mock dawn raids

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