RSCAS 2019/64 Robert Schuman Centre for Advanced Studies European Networking and Training for National Competition Enforcers (ENTraNCE) European Networking and Training for National Competition Enforcers ENTraNCE for Judges 2018 Selected Case Notes Edited by Pier Luigi Parcu and Giorgio Monti European University Institute Robert Schuman Centre for Advanced Studies European Networking and Training for National Competition Enforcers (ENTraNCE) European Networking and Training for National Competition Enforcers ENTraNCE for Judges 2018 Selected Case Notes Edited by Pier Luigi Parcu and Giorgio Monti EUI Working Paper RSCAS 2019/64 This text may be downloaded only for personal research purposes. Additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper, or other series, the year and the publisher. ISSN 1028-3625 © Edited by Pier Luigi Parcu and Giorgio Monti, 2019 Printed in Italy, September 2019 European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu/RSCAS/Publications/ www.eui.eu cadmus.eui.eu Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies, created in 1992 and currently directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research on the major issues facing the process of European integration, European societies and Europe’s place in 21st century global politics. The Centre is home to a large post-doctoral programme and hosts major research programmes, projects and data sets, in addition to a range of working groups and ad hoc initiatives. The research agenda is organised around a set of core themes and is continuously evolving, reflecting the changing agenda of European integration, the expanding membership of the European Union, developments in Europe’s neighbourhood and the wider world. For more information: http://eui.eu/rscas The EUI and the RSCAS are not responsible for the opinion expressed by the author(s). European Networking and Training for National Competition Enforcers (ENTraNCE for Judges) This series of working papers is published in the context of ENTraNCE for Judges, a training programme for national judges involved in EU competition law. The training is organised by the RSCAS, with the financial support of the DG Competition of the European Commission. In the context of the training programme, selected judges from different EU Member States attend both online and residential training activities in Florence. Each year the training focusses on a different aspect of competition law enforcement that is relevant to the national judiciaries. Information concerning the ENTraNCE for Judges training programme can be found at: http://www.eui.eu/Projects/ENTRANCE/Home.aspx Each working paper includes the case notes written by the national judges participating in one edition of ENTraNCE for Judges. In the context of the training activities, each judge is requested to summarise and to comment on a national judgment that is related to the field of competition law. The working paper thus aims to increase the understanding of the challenges faced by the national judiciaries in enforcing national and EU competition in the context of the decentralised regime of competition law enforcement, which was introduced by Reg. 1/2003. Abstract This working paper includes a collection of case notes written by those national judges who attended the European Networking and Training for National Competition Enforcers (ENTraNCE Judges 2018). The training programme was organised by RSCAS between November 2017 and October 2018, with the financial contribution of the DG Competition of the European Commission. The case notes included in the working paper summarise judgments from different EU Member States that relate to diverse aspects of competition law enforcement. The working paper thus aims to increase the understanding of the challenges that are faced by the national judiciaries in enforcing national and EU competition in the context of the decentralised regime of competition law enforcement that was introduced by Reg. 1/2003. Keywords Competition law; Article 101 TFEU; Article 102 TFEU; Reg. 1/2003; judicial training, national judges Table of contents Introduction ............................................................................................................................................. 1 Procedural Aspects of EU Competition Law .......................................................................................... 8 Elita Gavriel, Administrative Court of Cyprus .................................................................................... 9 Ewa Stefanska, Court of Appeal of Warsaw ..................................................................................... 12 Marc Bosmans, Brussels Court of Appeal ........................................................................................ 14 Cartels and the Scope of Application of EU Competition Law ............................................................ 21 Arco Rop, Amsterdam Commercial Court ........................................................................................ 22 Eric Mille, Brussels Court of Appeal ................................................................................................ 25 Jelena Čuveljak, High Commercial Court of Croatia ........................................................................ 29 Pertti Virtanen, Finnish Market Court ............................................................................................... 32 Eleonora Viegas, Portugal Market Court .......................................................................................... 36 Vertical Agreements .............................................................................................................................. 38 Angel Galco Peco, Commercial Court of Madrid ............................................................................. 39 Katalin Surányi, Budapest Administrative and Labour Court ........................................................... 42 Ute Mockel, Frankfurt Higher Regional Court ................................................................................. 45 Abuse of Dominance – Exploitative Practices ...................................................................................... 50 Amerika Dzintra, Latvia Supreme Court........................................................................................... 51 Rosa Perna, Administrative Tribunal of Latium ............................................................................... 54 Abuse of Dominance - Exclusionary Practices ..................................................................................... 60 Daniel Severinsson, Swedish Patent and Market Court .................................................................... 61 Eva Edwardsson, Sweden Patent and Market Court of Appeal ........................................................ 64 Andrea Moravcikova, Supreme Court of Slovakia ........................................................................... 68 Martin Dekleva, Administrative Court of Slovenia .......................................................................... 71 Gabriella Ratti, Commercial Court of Turin ..................................................................................... 75 Tereza Vaňkátová, Prague Commercial Court .................................................................................. 79 Stefan Goehre, Court of Appeal of Frankfurt .................................................................................... 81 State Aid ................................................................................................................................................ 84 Cristian Daniel Oana, Romanian High Court of Cassation and Justice ............................................ 85 List of Participants in ENTraNCE for Judges 2018 .............................................................................. 88 Introduction In this working paper the reader will find the summaries of significant antitrust cases from a range of EU Member States. These cases were discussed by the judges participating in the 2018 edition of ENTraNCE for Judges which is run by the Florence Competition Programme (FCP) at the European University Institute (EUI) and financially supported by the European Commission. This year a number of judges have brought to our attention cases that were referred to the ECJ on a preliminary ruling, for instance Coty and AKKA/LAA. Learning how these cases ended allows us to see the influence of the Court of Justice in aligning national and EU competition laws. Indeed, in Allianz Hungaria (also discussed in this working paper) the ECJ even agreed to interpret national competition law on the grounds that it was worded in a manner similar to EU competition law thus intimating that convergence is also expected between national and EU competition law. Below we provide a brief summary of each judgment that was discussed. We close with some remarks of the overall trends we observe. Procedures Judge Gavriel’s summary and discussion of Pfizer Hellas – Cyprus Branch and Phadisco Ltd v. Commission for the Protection of Competition is interesting because it the arguments of the parties on procedural matters largely mirror those that have been