An Excerpt From:
K&L Gates Global Government Solutions ® 2011: Mid-Year Outlook
July 2011
Antitrust and Competition
European Union Competition and Antitrust Law: Key Issues for 2012
The application of EU competition law in 2012 is likely to have a significant focus
on the recovering financial markets. The European Commission (the “Commission”)
has recently opened two investigations in the sector, and EU Competition
Commissioner Joaquin Almunia has warned that competition enforcement in the
financial services markets will increase. Almunia considers that strong financial
markets are key to economic recovery and that healthy competition needs to be
re-established in that sector.
the future. These moves follow a 2008
Commission White Paper in which two
mechanisms for collective redress were
suggested: first, representative actions
by qualified entities (such as consumer
associations), and second, collective
actions in which claimants decide to
combine their claims into a single action.
Specifically, Almunia has warned against
single entities acquiring too much market
power in financial services infrastructure
markets. A number of mergers between
exchanges and clearing houses have
recently been proposed, including
Deutsche Börse / NYSE Euronext and
ICE, Nasdaq / NYSE Euronext. The
Commission will be assessing whether
such mergers are likely to adversely
affect trading infrastructure markets.
Almunia has stated that competition
enforcement will be needed to prevent
any one entity or group from controlling
essential infrastructure.
The Commission launched a public
consultation in early 2011 to assess
the position of national legal systems
regarding collective redress, before
adopting a communication on common
principles for such actions. There had
been indications that the communication
could come before summer 2011, but
Almunia has now confirmed that the
communication will be published by the
end of 2011. Legislative plans to promote
redress in competition claims should
follow in 2012.
State Aid
Following the crisis that hit financial
institutions in 2008, the Commission
adopted a number of measures to create
a framework for the approval of state
aid to those institutions. The Commission
is now planning to phase out these
emergency measures by 1 January 2012,
replacing them with a new permanent
framework. The Commission is currently
working on defining the new rules for the
rescue and restructuring of banks. It is the
Commission’s responsibility to ensure that
large public subsidies to banks do not
distort competition in the financial markets,
and that the recipient banks restructure
themselves and return to viability.
Google and Article 102
Abuse of Dominance
The Commission investigation into
whether Google is abusing what it
claims is its dominant market position in
the internet search market, initiated in
November 2010, is likely to continue
into 2012. The investigation was initially
opened following complaints from rivals
that Google uses its position in the
internet search market to promote its
own vertical search services (such as
maps and shopping comparisons) ahead
of those of its rivals. The Commission
has sought input from users and
competitors of Google through a range
of questionnaires.
In addition to several earlier complaints
by private parties, Microsoft recently
announced that it had filed a formal
complaint against Google. Almunia has
predicted that Microsoft’s complaint will
not be the last that Google will face.
The Commission has also confirmed that
no discussions between Google and the
Commission have yet taken place.
Collective Redress
Commissioner Almunia has stated that
he intends to offer legislative plans to
promote private damages actions in
2012 (the Commissioner had previously
stated that draft laws would appear in
2011). EU antitrust officials have long
been looking at ways to help consumers
and small businesses bring claims against
companies breaking antitrust laws, and
the Commission is exploring EU-level
measures to help consumers group
together and bring such actions. This
could lead to more private claims against
cartel members and market-abusers in
Technology Transfer
The Commission has started a review
of rules covering licensing agreements
for intellectual property rights. The
review is at a preliminary stage, and
formal consultations are likely to begin
in 2012. The existing rules—found in
the technology transfer block exemption
regulation—were adopted in 2004, and
will expire at the end of April 2014.
The current technology transfer block
exemption covers licensing agreements
for patents, know-how, and software
copyright between companies.
Neil Baylis (London)
neil.baylis@klgates.com
Raya Al-Bader (London)
raya.al-bader@klgates.com
K&L Gates Global Government Solutions ® 2011 Mid-Year Outlook
39
Anchorage Austin Beijing Berlin Boston Brussels Charlotte Chicago Dallas Doha Dubai Fort Worth Frankfurt Harrisburg Hong Kong
London Los Angeles Miami Moscow Newark New York Orange County Palo Alto Paris Pittsburgh Portland Raleigh Research Triangle Park
San Diego San Francisco Seattle Shanghai Singapore Spokane/Coeur d’Alene Taipei Tokyo Warsaw Washington, D.C.
K&L Gates includes lawyers practicing out of 38 offices located in North America, Europe, Asia and the Middle
East, and represents numerous GLOBAL 500, FORTUNE 100, and FTSE 100 corporations, in addition to growth
and middle market companies, entrepreneurs, capital market participants and public sector entities. For more
information about K&L Gates or its locations and registrations, visit www.klgates.com.
This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to
any particular facts or circumstances without first consulting a lawyer.
©2011 K&L Gates LLP. All Rights Reserved.