Keynote speech [to be confirmed]

Session 1: 

Comparisons on the merits vs. exclusionary commercial disparagement: when criticising your competitors’ products or services becomes an antitrust issue?

This session will explore the evolving antitrust enforcement against exclusionary disparagement. In the last few years, several authorities across Europe have sanctioned companies for abuse of a dominant position in the form of exclusionary denigration. Commercial disparagement has also been object of article 101 TFEU enforcement. Which is the legal standard for bringing a denigration claim under article 102 TFEU? Are there different tests around Europe? 

Moderator: Eva Cruellas Sada, Gianna & Origoni, Italy

Session 2:

Structuring and Advising Joint Ventures: Where are the limits ​for Strategic Coordination under EU and National Competition Laws?

This session will explore the creation of joint ventures under EU and national competition laws, including with respect to the notifiability of non-full function joint ventures under national laws. We will examine how the 2023 Horizontal Guidelines address the coordination of parent companies and their joint ventures, identifying the compliance risks and remaining challenges under national competition laws. 

Moderator: Beatrice Stange, HEUKING, Germany

Session 3 (Roundtable break-out format): 

Cooperation or collusion? The state of play after two years of the new horizontal guidelines 

Table 1: Buying alliance vs. buyer cartel – where does the line go? 

Across the EU, we are seeing more enforcement related to buyer-side collusion. At the same time, many industries are turning to joint procurement and buying alliances to increase their bargaining power towards strong suppliers. So where does the line go between (legal) buying alliances and (illegal) buyer cartels? With a case-study as starting point, table participants will discuss how best to advise businesses on this tricky subject. 

Table 2: Labour market restrictions – is the ‘no poach’-clause dead?

In just a few of years, ‘no poach’ clauses have gone from being an antitrust non-issue to a high-risk practice. DG COMP’s tagline ‘Making markets work for people’ now covers the protection of competition for labour. With a case-study as starting point, table participants will explore what room there is for businesses to protect their key employees from being stolen by undeserving competitors.

Table 3: Harmless market intelligence vs. hub & spoke collusion – the (mis)use of AI and third-party software

The ways for businesses to get market intelligence on their competitors are getting ever more sophisticated. Through AI tools and third-party market-intelligence software providers, businesses can get close to real-time information about competitors’ pricing and market behaviour. But at what point – if at all – does the flow of market intelligence become an illegal concerted practice through hub & spoke information exchange? In the US, the DoJ is currently testing the waters with cases such as Realpage and Agristats. But what about in the EU? With a case-study as starting point, table participants discuss where the line goes and how to advise companies accordingly.  

Table 4: Sustainability agreements – does the new 2023 guidance work?

Investors, customers, and society-at-large are calling upon businesses to contribute to public interest goals like the green transition. Through the 2023 Horizontal Guidelines, the EU Commission has provided a framework for businesses to self-assess sustainability agreements at industry level. But is the Commission’s guidance operational, and does it help businesses strike the right balance between short-term consumer welfare and long-term public interest goals? With a case-study as starting point, table participants discuss whether the Commission’s guidance works in practice and how businesses can conclude sustainability agreements with as little antitrust risk as possible. 

Table 5:  Collective boycotts – legitimate collective action or collective foreclosure

Advertisers boycotting Social Media platforms and law firms refusing to work for Russian state-owned companies. Businesses can have legitimate reasons for not wanting to trade with a certain supplier, customer, or partner. And sometimes collective action at industry level is necessary to get rid of ‘bad actors’ in other levels of the supply chain. But when does such concerted behaviour amount to illegal collective boycott? With a case-study as starting point, table participants discuss how businesses avoid falling on the wrong side of antitrust law when engaging in such collective action. 

General moderator: Sam Baldwin, Szecskay Law Firm (Hungary)

Session 4:

New powers of the of competition authorities, challenges, risks

For many years, the antitrust toolbox has been fairly stable, harmonised and predictable. Recently, many national competition authorities have increasingly introduced new powers (new competition tools, merger call-ins, higher sanctions for companies and individuals). Authorities argue that they need these powers to address the new challenges posed by the modern digital economy. What are the lessons from countries that have already implemented the new powers? And what are the hopes of those still considering implementation? Will the new powers bring more enforcement or more uncertainty? 

Moderator: Robert Neruda, HAVEL & PARTNERS, Czechia and Slovakia

Session 5:

DMA a year in: Leassons learned for national competition authorities, ongoing investigations and private enforcement

The session will explore the views from gatekeepers and complainants on the initial phase of enforcement as well as the lessons learned for national competition authorities and their role in investigations. Private enforcement – both follow-on and standalone claims – in national courts will be analysed and discussed not only from the angle of compensation for damages suffered, but also as method of enforcement. In this context cooperation and coordination of enforcement actions will be looked at: How has it been working so far and does it provide solid foundation for private enforcement to work?

Moderator: Elvira Aliende Rodriguez, EU and Spanish competition lawyer, Spain and Belgium