Magenta: Société d'avocats

Already a major concern, antitrust rules are becoming an essential stake for businesses, considering the evolutions they have seen in the recent years:

Decentralised application of Community competition rules at a national level linked with a focus of the Community authorities on the most prejudicial practices

Growing influence of the economy on competition law, reflected in the evolution from a general prohibition of certain practices to a specific analysis to determine if they have actual anticompetitive effects

Development of negotiated settlements or alternatives to enforcement proceedings (leniency, transactions, commitments)

Increasingly severe fines.

These evolutions make it difficult to evaluate the potentially reprehensible aspect of certain types of behaviour and, at the same time, maximise the risk of sanctions for offenders.

In parallel, the development of leniency procedures, transactions and commitments has strengthened the strategic dimension of litigation before the competition authorities, both for undertakings blamed for breach of competition rules and for undertakings prejudiced by anti-competitive practices.

With this in mind, Magenta provides its clients with legal and strategic assistance in relation to cases of collusion and abuse of a dominant position at a national and/or Community level.

Magenta thus assists its clients ensuring the legality of their behaviour, when they are under a competition investigation (dawn raid) or when they wish to see these rules applied by their competitors.

This assistance comes in the form of advisory services (assessment of practices, compliance programmes, etc.) and litigation representation before the national and Community authorities and jurisdictions (Competition Authority, Paris Court of Appeal, specialised commercial courts).

Recent interventions of Magenta’s lawyers :

Assistance and representation of a e-marketing operator before the Competition Authority in proceedings against two of its competitors for collusion and abuse of a dominant position (interim measures requested)

Assistance and representation of a petroleum operator before the Competition Authority in proceedings against another operator for abuse of dominant position. Claim including a request for interim measures and an indemnity claim (private enforcement) before the commercial courts.

Merger control

National rules relating to merger control have been affected by the entry in force of the Loi de Modernisation de l’Economie (Law of Modernisation of the Economy) voted on 4 August 2008 and its implementing decrees. Its most important modifications are :

Transfer of merger control to the newly created Competition Authority (with the Minister of Economy retaining a residual power to raise general interest issues)

Modification of various procedure rules

Implementation of lower merger control thresholds for operations between companies managing one or more retail trade shops.

Magenta keeps track of these changes and helps its clients at each stage of their merger-acquisition transactions and creation of joint subsidiaries, in particular with the following :

Project feasibility study (determination of whether the transaction falls within the national or Community merger regime, assessment and anticipation of potential competition issues raised by the transaction, etc.)

Notification of the transaction to national or Community competition authorities

Assistance with the merger control procedure (competitive analysis, negotiation of potential commitments) until the final decision of the relevant authority.

Recent interventions of Magenta’s lawyers :

Determining whether a merger transaction in the agricultural sector fell within the scope of the national merger regime and assisting with the pre-notification of this transaction

Assisting an investment fund with the acquisition of the joint control of a group in the hotel sector. Notification of the transaction to the French authorities and coordination of a multifiling involving three different countries.

State aids

LaLately, the financial crisis, affecting the global economy and the economic situation of the EC Member States, has given the European Commission the opportunity to draw attention to the importance of the EC rules relating to State aids.

These rules, which substantially purport to prevent a Member State from favouring its national companies through financing or support mechanisms, have caused the Commission to request the modification of several national support schemes designed to counter this financial crisis.

Thus, State aid issues can arise following sector-based emergency programmes or following the implementation of measures aiming at safeguarding one or more targeted companies or at financing a service of general economic interest. They also arise following the financing of research and development of infrastructure projects involving public resources.

Businesses must therefore take the greatest care when benefiting from public funds in order to avoid having to return those funds, should they be deemed to be unlawful State aids.

ASimilarly, businesses required to contribute to the financing of these measures should also be concerned with ensuring the legality of such measures. Indeed, the illegality of a support mechanism implies the illegality of its financing means and businesses can therefore obtain a refund of the charges or taxes they have incurred. Businesses prejudiced on a competitive basis by such mechanisms may be also able to challenge them.

There are many examples, in France, of contributions that have been challenged against these State aid rules (printed advertising material tax, etc.)

Magenta is fully familiar with these rules and assists its clients should they wish to ensure that the financing mechanism from which they benefit will not be deemed to be a State aid or, alternatively, should they wish to challenge the legality of a mechanism they consider illegal.

Recent interventions of Magenta’s lawyers :

Assisting a consortium in relation to the conclusion of a public/private partnership with a French public institution with potential State aid elements

Claims before the administrative courts enabling several businesses to obtain the refund of “printed advertising material tax”.

Restricitive practices

The Loi pour la Modernisation de l’Economie (Law of Modernisation of the Economy) voted on 4 August 2008 has entrenched the principle of “free negotiability” by removing the general prohibition of discriminatory practices.

Nevertheless, there are limits to this freedom granted to economic operators in the pursuit of their commercial relations and, together with the practices that remain prohibited (obtaining a disproportionate advantage, sudden termination of established commercial relationships, etc.), new safeguards have been introduced by the French legislator: automatic nullity of “most favoured nation clauses”, new case of abuse for “significant imbalance between the rights and obligations of the parties”…

Harsher sanctions have also been introduced.

Magenta assists its clients facing these issues by helping them in particular to assess the validity of their agreements in the light of these rules, as well as to negotiate or terminate contracts in accordance with these provisions.

Magenta also has significant litigation experience in this area.

Recent interventions of Magenta’s lawyers :

Audit and compliance of distribution contracts with these rules

Representation in litigation proceedings following the sudden termination of established commercial relationships.

Unfair competition and indemnity claims "Private Enforcement"

Whether facing issues of disparagement, imitation, parasitism or any other unfair behavior, Magenta assists its clients before the relevant courts to enforce their rights or protect their interests and obtain, as appropriate, the indemnification of their prejudice.

Magenta is also particularly attentive to the foreseeable changes at a Community level in order to facilitate claims for the indemnification of prejudice resulting from anticompetitive practices (introduction of class actions, influence of the 'passing on defence' on the consideration of the causal link, assessment of the prejudice, etc.). Magenta already has valuable experience in this area, with its lawyers having taken several actions of this kind in the past, one of which led to the highest indemnity sentence ever held to this day in France in the new technologies sector (€ 15 million).

Recent interventions of Magenta’s lawyers :

Assisting a business taken to the commercial court by one of its competitors for parasitism

• Assisting a business taken to court by one of its competitors for solicitation of its customers.

Competition law

Antitrust

Recent interventions of Magenta’s lawyers :

Merger control

Recent interventions of Magenta’s lawyers :

State aids

Recent interventions of Magenta’s lawyers :

Restricitive practices

Recent interventions of Magenta’s lawyers :

Unfair competition and indemnity claims "Private Enforcement"

Recent interventions of Magenta’s lawyers :