Virtually any competition investigation has the potential to end up before the courts, either because the investigated company wants to challenge the remedy or fine imposed, or because a competitor is unhappy with the outcome and brings an appeal. Appealing administrative decisions adopted before the EU courts is a distinct process that differs from the administrative investigation and other types of litigation. Importantly, the basis for successful litigation is laid down during the administrative investigation; thus, companies should consider possible litigation strategies early in the proceedings.
The Covington European competition litigation team has substantial experience in the full spectrum of cases before the EU Courts, having represented clients in over well over 150 cases before the Court of Justice and the General Court of the EU. We have in depth experience in handling:
- Annulment actions challenging EU administrative decisions;
- Actions for damages;
- References from national courts; and
- Applications for interim measures.
Moreover, like the judges at the EU Courts, our litigators are active in matters covering a broad range of substantive areas (cartels, merger control, State aid, abuse of dominant positions, international trade, internal market, environment, intellectual property) and industries (including life sciences, air transport, IT, agriculture, manufacturing). This broad expertise allows Covington attorneys to identify arguments and evidence likely to persuade the EU Courts to step in and overturn a European Commission decision, and to present those arguments most effectively.
In addition to competition litigation before the EU Courts, we are increasingly being involved in follow-on civil damages claims. The risk of potential damages claims must be considered by any company subject to a competition investigation by the EU Commission or a national competition investigation. Any step during the investigation, from the decision to make a leniency application, what information to submit to investigators during an investigation, to deciding whether to challenge (aspects of) an adverse decision must be assessed also from a civil litigation strategy perspective. Covington’s European litigation team includes members of the Bars of a large number of European jurisdictions, and handle civil competition damages claims in a number of Member States, particularly Germany and the UK.
Representative Matters
- We represent Microsoft in connection with Cisco’s appeal against the European Commission’s decision to approve Microsoft’s acquisition of Skype.
- We represent Ryanair before the Court of Justice in a reference case from a German Court concerning alleged to state air to Ryanair in relation to its operations at the Frankfurt Hahn airport.
- We represent one of the world’s leading oil companies in its appeal to the EU General Court seeking annulment of the European Commission’s decision relating to the Dutch Bitumen Cartel.
- We represented Ryanair in on-going proceedings before the Office of Fair Trading, the Competition Appeals Tribunal in the UK, and the Court of Appeal regarding Ryanair’s minority stake in Aer Lingus.
- We represented Slovak Telekom in its dispute with the European Commission before the EU General Court as to whether information obtained by an EU accession Member State, obtained prior to accession must be disclosed for the purposes of a competition investigation.
- We represented Ryanair in its appeal to the EU General Court against the European Commission’s decision to block is proposed acquisition of Irelands’ national carrier, Aer Lingus.
- We represented Ryanair as intervener in an action by Aer Lingus against the EU Commission seeking an order to request Ryanair to sell down its share in Aer Lingus.
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