COMMEO’s Post

The Competition Ordinance Aruba (COA) was introduced on January 1st, 2024, to prohibit, avoid and supervise cartel agreements, abuse of power by companies and concentration of companies, respectively. The public enforcement of antitrust laws is entrusted to the antitrust authority of a certain jurisdiction. The antitrust authority in Aruba is the Aruba Fair Trade Authority (AFTA). AFTA carries out the supervision on compliance with COA and impose administrative penalties, orders or binding instructions on companies for COA infringement. Third parties that sustained monetary damages due to antitrust laws infringement by the company may file so-called "follow on" civil lawsuits against the company, for instance, by customers or consumers who paid an excessive price for a certain product due to an illegal "hardcore" cartel agreement on price fixing between two or more companies. The EU Directive on Private Damages 2014/104 (the Directive) helps the financially aggrieved party to effectively seek monetary compensation in civil court from the company as follows: - The irrevocable administrative ruling of the antitrust authority against the company is irrefutable evidence of infringement of antitrust laws by the company. - Cartel infringements are presumed (vermoeden) to cause damage. The company is burdened with the task of refuting this presumption. An AFTA ruling against a company for COA infringement is subject to objection and appeal in an administrative proceeding according to the ordinance on administrative proceedings (LAR). The AFTA ruling becomes irrevocable after the exhaustion of appeals in the administrative proceeding. A party seeking monetary compensation from the company may take advantage of the irrevocable AFTA-ruling made against the company and start a civil lawsuit against the company at the Aruba court. The wrongful conduct by the company is already established whilst the company must refute the causality between the cartel infringement and the damages. The company may evoke the following defenses in civil court: - The company may argue that the customer passed on (a part of) the excessive price to its customers and therefore did not incur financial damages ("passing on" defense). - Small and medium sized companies may evoke article 11 of the Directive and argue that they are only liable for the damages to their direct and indirect customers. The definition of SME's is found in Recommendation 2003/361/EC. The Directive instructs the implementation of a leniency program that enables the participant in a cartel to submit a request for leniency with the antitrust authority and cooperate with an investigation by providing information on and its role in the cartel, in return for immunity from or reduction of the penalty for its involvement in the cartel. According to received information, AFTA would have (some version of) a leniency program in place.

The Turkish Competition Authority recently, on October 18, published its decision regarding the second investigation of Samsung Electronics about the company's interventions in the pricing processes of its resellers. After thorough deliberation, the Authority determined there was no need to initiate a second investigation, referencing the "ne bis in idem" principle concerning potential violations of Article 4 of the Turkish Competition Law.   This decision effectively illustrates the interplay between enforcing competition law and the "ne bis in idem" principle within the Turkish legal framework. The Authority's findings extend beyond Samsung's actions, shedding light on critical market dynamics and the sustainability of competitive environments. The critical analysis of the Authority assessed whether Samsung’s prior actions warranted a reevaluation during the preliminary investigation, making this decision a pivotal example of how competition law operates and is applied.   The Authority analyzed the "ne bis in idem" principle, which prohibits double jeopardy for the same act against the same individual. It acknowledged that actions prohibited under the Competition Law are treated as offenses under the Turkish Misdemeanor Law, confirming that this criminal law principle applies to the rules of the Competition Law. In its decision, the Authority also referenced guidance from the European Court of Human Rights, which states that no second prosecution or trial can occur for the same offense.   The Authority identified three key elements of the "ne bis in idem" principle: the identity of the act, the identity of the persons involved, and the identity of the protected legal interest. It confirmed that these elements were present in this case.   Ultimately, while the Authority recognized Samsung's actions in price determination as prohibited under Article 4 of the Competition Law, it concluded that these actions mirrored those in the previous decision. Consequently, the ongoing inquiry revealed no grounds for further penalties or investigations against Samsung.   By considering the "ne bis in idem" principle in its decision, the Authority strengthens the reliability of competition law practices. It also plays a crucial role in fostering a fair legal system by preventing duplicity. Full text of the decision can be reached at: https://lnkd.in/e_2p8C8J

There were some interesting developments in #competition law in #Spain in 2023! From the series of reforms to the Spanish Competition act, the imposed second highest-ever fine on Apple and Amazon, to the conclusion of the decade-long #litigation over the Spanish Tax Lease System. Read all about these developments in the article by David Pérez de Lamo, Beatriz Martos Stevenson, and María Victoria Paredes Balén of Cleary Gottlieb Steen & Hamilton LLP, which is now published on the Kluwer Competition Law Blog!

Understanding the basics of U.S. Antitrust Law (L-2) 1. Sherman Act, 1890 context - a. Industrialisation in 19th century lead to accumulation of wealth with many corporation and individuals which created a fear that such accumulation of economic power may lead to oppression of general public interest b. Coming up of combinations which under the disguise of trust grow rapidly into different other sectors. Concentration of economic power created fear that it might injure public interest. This Act declare illegal to every “contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations” and provide for civil and criminal liability, if any person “monopolise, or attempt to monopolise, or combine or conspire with any other person or persons, to monopolise any part of the trade or commerce among the several States, or with foreign nations”. So, in essence, this Act prohibits agreement that restraint trade and also punishes for monopolisation. Standard Oil Company of New Jersey v. United States, 221 U.S. 1 (1911) defendant had formed a trust and entered into different anti competitive agreement in order to fix the prices of different petroleum products. In order to maximise profits, defendant also limited the production and distribution of those petroleum products. Lower court directed for dissolving the holding company as it violated the provision of Sherman Act. In this case Rule of Reason was propounded by the US Supreme Court and provided that Sherman Act prohibits only contracts and combinations that lead to unreasonable or undue restraint of trade. Court ruled that defendant imposed unreasonable and undue restraints on trade in petroleum products and hence violated the provisions of Sherman Act. 2. Clayton Act Addressed the issue of price discrimination, tying and exclusive dealing contracts, regulated M&A that may affect the competition or create monopolies in any segment. It also provide for private right of action. After amendment through Robinson Patman Act it also prohibited certain forms of price discrimination. Federal Trade Commission Act The aim is to protect consumer from unfair, deceptive or fraudulent practices. It provide an interface between the interface between consumer protection and competition law. Institutional setup Restoring competition in a market after the happening of any anti competitive combination involve significant cost. Therefore, Hart-Scott-Rodino Antitrust Improvements Act of 1976 has provided for mandatory filing before the US Federal Trade Commission (FTC) and DOJ to ensure that any transaction of M&A and transfer of securities or assets does not have any adverse affect on competition or do not violate the anti trust laws. #antitrustlaw #antitrust #competition #us

There have been changes to the trade marks law in Japan and the Republic of Korea that should prove helpful for brands to negotiate the trade mark registration systems of these countries. Traditionally, the Trade Marks Offices in both countries examine on relative grounds (for prior rights) and regularly cite earlier registrations as bars to registration. Unlike in most other countries that also examine on relative grounds, these Offices have not accepted consent as a way to overcome earlier rights. Daniel H. explains how this is set to change... https://lnkd.in/e2f73ten #trademarks #law #intellectualproperty

Never a dull week following 🇨🇳 Chinese laws and regulations being changed and popping up out of nowhere. As a 🇩🇪German lawyer, I am very much used to working with laws, as the essential rules and regulations important for businesses in Germany are, in the vast majority of cases, provided in laws (Gesetze). Especially if one ignores for a moment EU regulations and directives (although the latter will also have to be transposed into national law). There are, of course, also administrative regulations or ordinances in Germany (Verordnungen), but I would suggest that, in the overall picture of important rules for businesses in Germany, these regulations/ordinances play a much lesser role. To try and put this into perspective, one may look at the Act Implementing the European Conversion Directive, just as an example, which the German Bundestag adopted in February 2023. The Act dealt with the practically very important topic of cross-border conversions, mergers, and divisions within the EU. 24 different German laws and regulations had to be amended with this Act to be in accordance with the EU Conversion Directive, and only 4 of these were regulations or ordinances. 🇨🇳 In China, however, the picture is quite different: Administrative regulations, opinions, guidelines, and others play a very important role in supplementing and specifying laws. And they come out with high frequency and from different governmental agencies. To get a feeling for this, one need not look further than at some of the new regulations etc. that came out in China in the month of July alone: ✅ China’s Supreme People’s Court brought out the “Several Provisions on the Temporal Applicability of the Company Law of the PRC” (最高人民法院《关于适用〈中华人民共和国公司法〉时间效力的若干规定》) ✅ China’s State Council enacted the “Provisions on Implementing the Registered Capital Registration Management System under the Company Law of the PRC” (《关于实施〈中华人民共和国公司法〉注册资本登记管理制度的规定》) ✅ China’s Ministry of Industry and Information Technology and three other authorities brought out the “Guidelines for the Development of a Comprehensive System of National Standards for the Artificial Intelligence Industry (2024 Edition)” (工业和信息化部等四部门《国家人工智能产业综合标准化体系建设指南（2024版）》) ✅ China’s Administration for Market Regulation brought out a public announcement on “The National Enterprise Credit Information Publicity System [being] upgraded to include new features adapting to the new Company Law of the PRC” (配套新《公司法》上线新功能 国家企业信用信息公示系统完成升级改造) ✅ China’s Ministry of Commerce, the People’s Bank of China, and two other authorities brought out the “Opinions on Strengthening Coordination Between Commerce and Finance to Step up Support for High-quality Development of Cross-border Trade and Investment” (《关于加强商务和金融协同 更大力度支持跨境贸易和投资高质量发展的意见》) 🔎 So, anyone who works with Chinese laws and regulations or is simply curious about them has a lot to do keeping track of these new rules and putting them into the right perspective

Google's challenge to the Int'l Trade Commission's Suprema-variety of patent jurisdiction won't get a hearing before the full Federal Circuit. The tech company challenged an ITC order barring imports of certain smart speakers and phone and tablet products that the agency found infringing after certain customer actions taken in the US (syncing up Nest speakers, was one of the actions). Google argued for a second look at the Federal Circuit's grant of Chevron deference to the ITC to enlarge its ambit beyond investigations into products that infringe patents when they come off the assembly line. The Federal Circuit (minus Newman and Cunningham) denied both the petition for en banc rehearing and panel rehearing late Tuesday. The 2015 Suprema v. ITC case was one of the first Chevron rulings to come under attack after the Supreme Court's Loper Bright opinion. A divided en banc court held in Suprema that that company's fingerprint scanners--though capable of substantial non-infringing uses, and though not directly infringing of a patent owned by a Florida software company--could become infringing when a certain Suprema customer combined the devices with its own US-made software after importation. There were no dissents to Tuesday's denial of en banc rehearing, and so it's difficult to know whether the 10 participating judges think it's for the Supreme Court to decide what Chevron-era decisions should or shouldn't be disturbed, or if Google's arguments simply didn't persuade them. Suprema itself garnered four dissents, and three of those judges (JJ. Lourie, Dyk, Prost) are still members of the court. Reyna wrote the majority opinion and was joined by Judges Newman, Wallach, Taranto, Chen, and Hughes. *Something funny happened with the link on this so I'm posting the URL, also: https://lnkd.in/eK4JqyKR

New Available on Amazon by clicking on the image Kerly’s Law of Trade Marks and Trade Names has provided clear and authoritative advice on all aspects of UK trade mark law since 1894. Through its mix of insightful commentary and up-to-date analysis of case law and legislation, it has established itself as the leading reference on trade mark law and a must-have title for practitioners. This updated seventeenth edition is available in print and as an eBook on Thomson Reuters ProView. This title provides you with: The most comprehensive and authoritative guidance on the law of trade marks and trade names. Explanations of key aspects of trade mark law: classification, registration, enforcement, infringement and litigation. Detailed analysis of community trade marks, their provisions, extent of protection and procedural matters, as well as the changes introduced by the European trade mark reforms. Coverage of issues such as assignment, licensing, merchandising and franchising. Outlines the absolute and relative grounds for the refusal of registration. Addresses trade mark infringement and available defences including limitations on, exclusions from and statutory. Explains the difference between collective and certification marks and highlights their respective functions and regulations. Dedicated chapters on trade libel, company names, the internet and the influence of human rights. Looks at the related issues of competition law and restraint of trade. Discusses the influence of EU law and possible areas of post-Brexit divergence. Contents: 1. Introduction 2. The functions and characteristics of a trade mark in EU trade mark law 3. Average consumer 4. Influence of EU Law, statutory interpretation and possible divergence 5. The UK register of trade marks 6. Classification of goods and services 7. UK registration procedure 8. Community trade marks 9. The Madrid system 10. Absolute grounds for refusal of registration 11. Relative grounds for refusal of registration 12. Validity and removal of trade marks from the register 13. Geographical indications and appellations of origin 14. Collective and certification marks 15. Dealings with trade marks 16. Infringement 17. Defences 18. Exhaustion 19. Competition law and trade marks 20. The action for passing off 21. Trade libel and threats 22. Civil proceedings for trade mark infringement and passing off 23. Evidence 24. Criminal proceedings 25. Customs powers and procedures 26. Character and celebrity merchandising 27. Company and business names 28. The internet 29. Human rights and trade marks https://lnkd.in/dHC-W4vx

Excited to share our article published on the Kluwer Competition Law Blog (Wolters Kluwer: Antitrust and Competition Law) 📚 In this piece, together with Marcin Kolasiński we delve into the guidelines on setting fines issued recently by the Polish competition authority. Check out the full article to understand how these changes might impact businesses and the legal landscape: https://lnkd.in/dQ7u-_j8 💡 Thank you very much Alba Ribera Martínez and Nils Imgarten for the excellent cooperation and support throughout the publication process ☺️ #CompetitionLaw #ECN #PolishCompetitionAuthority #Fines #Transparency