Antitrust: Commission consults on review of safe harbour for minor agreements ("De Minimis" Notice)

The Notice on Agreements of Minor Importance has always been a key document in EU competition law (and EC competition law before it). It defines what agreements (and other arrangements) are too small to be worth bothering with, because they can safely be assumed not to affect competition, or at least not appreciably. Specialised car manufacturers can rely on the Notice to save them from having to comply with the block exemption. Now the Commission is consulting on a new Notice: here's what its press release says.

The European Commission invites comments on a proposal to revise its guidance notice for assessing when minor agreements between companies are not caught by the general prohibition of anticompetitive agreements under EU competition law. The proposal aims at updating the present Notice, in particular taking into account recent developments in the case law of the European Court of Justice (ECJ*). Comments can be submitted until 3 October 2013. In light of these comments, the Commission will then adopt a new notice in
2014.
Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements that are aimed at or result in appreciable restrictions of competition. The current De Minimis Notice (adopted in 2001) defines, with the help of market share thresholds, what the Commission considers not to be an appreciable restriction of competition (see IP/02/13 ). It creates a safe harbour for companies whose market shares do not exceed 10% for agreements between competitors or 15% for agreements between non-competitors. If an agreement contains a hardcore restriction, that is, a very serious restriction for which there is a presumption of anti-competitiveness, the companies cannot benefit from the safe harbour.
The Commission's proposal is aimed at ensuring consistency with other recently amended competition rules, in particular the 2010 Vertical and Horizontal Block Exemption Regulations (see IP/10/445, MEMO/10/138, IP/10/1702, MEMO/10/676) and with an ECJ ruling of December 2012 (case C-226/11 Expedia). 
Questions from a French court in the Expedia case raised the issue of whether agreements aimed at restricting competition (restrictions having an anti-competitive "object") can be considered as "de minimis" and therefore fall outside the scope of Article 101(1). The Expedia judgment has established that a restriction with an anticompetitive object constitutes, by its very nature, an appreciable restriction of competition. The proposal therefore clarifies that agreements containing a restriction by object are always seen as an appreciable restriction of competition.

The consultation documents are available at: http://ec.europa.eu/competition/consultations/2013_de_minimis_notice/index_en.html

* It annoys me when lawyers lazily give the Court of Justice the adjective "European". It annoys me a great deal more when another European Union institution does so. The Court is properly called the Court of Justice of the European Union, but that title refers to the institution which consists of two courts, the General Court (which we used to call the Court of First Instance, which made it a bit easier to understand what it was for) and the Court of Justice - just that, which is utterly confusing but must be respected as best we can. Valentine Korah always used to call the Court of Justice "the Community Court", so I wonder whether she'd now call it the "Union Court"? I shall try to find out.

Trading Stadards assumes responsibility for approving Codes

With the OFT being shuffled out of the consumer protection area, responsibility for codes of practice has passed to the Trading Standards institute, whose new Consumer Codes Approval Scheme was launched on 21 June. It takes over the nine approved codes of practice, including of course the biggest (and oldest, and best), Motor Codes.

There's a piece about it on the Guardian's website here, too, and probably many others too.

Commission proposes legislation to facilitate damage claims by victims of antitrust violations

The Commission has adopted a proposal for a directive on compensation for victims of antitrust violations, such as cartels. The press release, and links to further information, is here.

U.S. Department of Transportation Releases Policy on Automated Vehicle Development

The legal treatment of driverless or autonomous cars remains a fascinating area - so this press release from NHTSA will be of interest, even if it does not directly affect our law. And you can view NHTSA's statement of policy on automated vehicles.

US: Volvo opposition to LOVOL trade mark rejected

My friend John Welch reports in his TTAB Blog that Volvo's opposition to LOVOL, for vehicles, was dismissed by the TTAB. And, I think, quite right too. Likelihood of confusion? I think not. The Board seem to have been impressed by the fact that the junior mark is a palindrome, not something I have seen feature in trade mark cases anywhere else, and that the word "volvo" comes from a dead language. As John asks,
qui cogitat?

IBC's annual conference on competition law challenges in the motor vehicle sector (25 June)

For several years now, IBC Legal Conferences' annual event in Brussels has been almost compulsory for block exemption aficionados (or should that be aficionadi? Evidently not, according to the Bloomsbury Concise English Dictionary, which came most easily to hand when I reached towards my shelf of reference books, as it comes from Spanish rather than Italian. I am however disturbed to find that its original Spanish meaning was a devotee of bull-fighting, so notwithstanding the broader sense it has acquired in English I will use it carefully in future). I have been to the conference several times - once even to speak at it, and last year to blog extensively (here, et seq) - and it is invariably excellent. Not uniformly excellent: the conference organiser who assembles a programme with no duff session is lucky indeed, but IBC maintain a generally high standard across the whole day. Details of this year's edition can be found here.

The cast is pretty consistent, too. Looking over the list of speakers for this year's event, much of it is exactly the same as last year's - and why not? If it works, don't change it. The regular speakers are all excellent, and well-informed about the subject (which is why, apart from the fact that he's a friend, I invited one of them, Joseph Vogel, to speak at this year's Motor Law conference).

This year, the programme ranges a little wider than just the block exemption (as it did last year, too). There will be a session on the global parts cartel (which Alex Haffner of SNR Denton covered at our conference in February), another on information exchanges, and one on telematics, a subject which raises some fascinating competition problems.

I will preview the conference in more detail over the coming weeks, during which the block exemption will be very much in my mind. Of course, the date of this event is close to the long-awaited day on which the new regime comes fully into operation, although dealing with implementation of the legislation isn't a key area for discussion - everyone will have that sorted out by then, one hopes. We'll be presenting our own block exemption seminar in September, but the events will be complementary - no reason not to take in both. In previous years, we have been able to offer Motor Law subscribers a 10 per cent discount, and I hope we can do so again this year.

OFT issues five infringement decisions in the distribution of Mercedes-Benz commercial vehicles investigation

The OFT has issued the decisions that we have been expecting. Press release no 30/13 of 27 March 2013  says:

The OFT today issued decisions finding that Mercedes-Benz and five of its commercial vehicles dealers infringed competition law and has imposed fines totalling over £2.8 million.
Each of the five decisions relates to separate infringements that took place over different periods between March 2007 and January 2010, involving different parties. The nature of the infringements varies but all contain at least some element of market sharing, price co-ordination or the exchange of commercially sensitive information.
These decisions follow settlements with Ciceley, Enza, Mercedes-Benz and Road Range announced in February under which these parties admitted breaching the law and agreed to pay a fine and co-operate with the OFT. Northside, which also admitted infringing competition law, has avoided a fine under the OFT's leniency policy. The remaining dealer, H&L Garages, did not settle with the OFT and the two infringements it was involved in were not therefore part of settlement.
Today's announcement brings the OFT's investigation to a conclusion. The full decisions will be published on the OFT website later this year.

So we still don't get to see the details: this is merely a formality, as far as the outside world is concerned.