II.Bertelsmann and Sony Corporation of America v Impala

Right at the time when I started to write the second part of my entry on Bertelsmann and Sony Corporation of America v Impala, I found an overview by WilmerHale published yesterday. The auhtors suggest that ”

The ECJ’s judgment is significant in a number of respects. Most importantly, it emphasizes that the “Statement of Objections” (SO) is only a provisional procedural document in competition cases and does not carry any evidentiary weight of its own. The ECJ clarifies that the Commission abandoning its objections in light of the parties’ response should not be cause for increased judicial scrutiny, but rather is compatible with the SO’s very purpose of ensuring the rights of defense. These pronouncements not only restore the previous procedural dynamics to EC merger reviews, but also limit the potential for the misuse of SOs in other contexts, for example by plaintiff lawyers in private cartel follow-on actions.

In addition, the ECJ has for the first time endorsed in substance the CFI’s Airtours criteria for determining collective dominance, although it uses slightly different language and emphasizes the need to avoid mechanically applying the three factors in the Airtours test.

In institutional terms, the judgment is a rare example of the ECJ overruling the CFI in a competition case. Coupled with the ECJ not following Advocate General Kokott’s opinion recommending upholding the CFI’s judgment, this may signal that the ECJ has a greater willingness to take a more active role in competition cases at least when fundamental issues such as rights of defense are at stake.

If you want to get an idea about the judgement quickly just read the comment by WilmerHale.


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