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Contributions by Dentons

16

Cartels
Practice notes

Cartels are considered to be the most pernicious anti-competitive practice under Article 101 TFEU (and domestic equivalents). This Practice Note reviews what is a cartel and looks at the specific legal regime that they are subject to in the EU, including leniency and settlement.

Competitive effects of most-favoured nation clauses
Practice notes

Most-favoured nation (MFN) clauses, also referred to as price relationship agreements, can fall within the scope of competition law. This Practice Note examines their treatment by the European Commission and national competition authorities.

Concerted practices
Practice notes

The concept of concerted practices or effects means that collusive behaviour (or collusion), falling short of an agreement, may come within the scope of Article 101 TFEU (or Chapter I of the Competition Act 1998). This Practice Note explores the concept and its application. The note breaks down the concept into its constituent parts and details requirements from case law, including establishing an infringement in cases of price signalling and parallel behaviour. There are also details on circumstances when concerted practices can be seen as ‘by object’ infringements and the evidential requirements.

European Commission requests for information
Practice notes

The European Commission has broad investigative powers to enforce EU competition rules and prosecute antitrust violations, including cartels. Among other things, the Commission has the power under Article 18 of Regulation 1/2003 to request undertakings (and associations of undertakings) to provide ‘all necessary information’ to facilitate review of suspected breaches. This Practice Note explores the scope of these powers, in particular the two types of requests the Commission can issue (non-mandatory and mandatory), its discretion to request information and penalties for non-compliance with such requests. This Practice Note also reflects on limitations on the Commission’s exercise of these powers (including considerations regarding general principles of EU law and the rights of defence) as well as on the interplay between Commission’s powers to request information under Article 18 of Regulation 1/2003 and the Leniency Notice.

European Commission’s powers of inspection (dawn raids) and the rights of defence
Practice notes

The European Commission has broad investigative powers to uncover anti-competitive conduct. This Practice Note explores the parameters of these powers and the safeguards for companies under investigation. The Practice Note details the Commission’s powers of inspection (also known as ‘dawn raids’) under Article 20 of Regulation 1/2003, the duty of active cooperation and penalties for procedural infringements, along with the rights of defence in the course of preliminary investigations and how inspection decisions can be challenged.

Extraterritorial application of EU competition law
Practice notes

EU competition law can have extra-territorial reach. This Practice Note considers the territorial limits to the application of EU competition law and outlines the tests which have evolved from Court of Justice decisions to determine whether the Commission has extraterritorial jurisdiction. The single economic entity doctrine, the implementation doctrine and the qualified effects doctrine are all outlined. The implications for antitrust damage claims are also considered.

Financial sanctions—offences
Practice notes

This Practice Note explains the offences for failing to comply with financial sanctions. These are sanctions which may be imposed by the UN or the EU, or, pursuant to the Sanctions and Anti-money Laundering Act 2018 (SAMLA 2018), which arise as a result of the powers to create sanctions regulations in a post-Brexit era. This Practice Note provides an introduction to how the power to create offences under SAMLA 2018, UK with the purpose of enabling the UK's continued compliance with international law after the end of the implementation period (transition period) and which creates the scope for significant divergence between the domestic regime and the European regime. It also provides an explanation of key terms used in financial sanctions offences, information on exclusions and defences to financial sanctions breaches, including the issue of licences exempting certain transactions from financial sanctions by the Office of Financial Sanctions Implementation (OFSI), the enforcement of financial sanctions offences and on the sentences which may be imposed for financial sanctions offences.

Key pension issues in a private sector outsourcing
Practice notes

This Practice Note focuses on the pension aspects of outsourcing in the private sector. It outlines the extent to which the pension rights of transferring employees transfer to the supplier on an outsourcing, taking account of reg 10 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), SI 2006/246 and the Beckmann case law. It also covers the minimum statutory requirements in relation to transferring employees, the consultation obligations under TUPE and the outsourcing risks to customers and suppliers.

Parental company liability for antitrust infringements
Practice notes

Parent companies risk being targeted for the antitrust violations of its subsidiaries. This Practice Note details the legal foundation and rationale underlying parental company liability for antitrust infringements. The Practice Note explores case law on the scope of the concept and its application, for example, to financial investors and joint ventures. Also, its practical impact for companies in regard to leniency and potential fines.

Rights of defence in European Commission competition proceedings
Practice notes

EU competition law seeks to strike a balance between effective enforcement and an undertakings’ rights of defence. This Practice Note explores aspects of the rights of defence, the privilege against self-incrimination, the right to be heard, the right to be assisted by legal counsel and the right to good administration in relation to investigations carried out by the European Commission. Due process concerns arising out of the EU Charter of Fundamental Rights and the European Convention of Human Rights are also investigated.

Single continuous infringement
Practice notes

The concept of ‘single and continuous infringement’ (SCI) allows the European Commission to lump a series of infringements of Article 101 TFEU together on the ground that they pursue a single overall plan. This Practice note explores the SCI concept, what’s required to prove the overall objective and the subjective, intent of the parties. The Practice Note also considers the potential impact of a finding of an SCI and the consequences of a successful appeal against a finding of an SCI by the Commission.

Strategic Environmental Assessment
Practice notes

This Practice Note provides guidance on Strategic Environmental Assessments (SEAs) under European Directive 2001/42/EC, which requires a formal environmental assessment of certain plans and programmes likely to have significant effects on the environment. It covers: relevant law, including the Environmental Assessment of Plans and Programmes Regulations 2004 in England and Wales; when SEA is required; publicity and consultation; contents of the environmental report; alternatives; transboundary consultations; other Member States' plans or programmes; adoption; and monitoring.

Strategic Environmental Assessment Directive—snapshot
Practice notes

This Practice Note provides a snapshot of the key aspects of the EU Directive on the assessment of the effects of certain plans and programmes on the environment (the SEA Directive) and its implementation in England and Wales through the Environmental Assessment of Plans and Programmes Regulations 2004. It covers: mandatory assessment and discretionary assessment; excluded environmental impact assessment plans and programmes; the assessment procedure; and the review of the SEA Directive.

The economic continuity principle
Practice notes

The principle of economic continuity may lead to an acquiring business being liable for an infringement of EU competition law committed by an earlier operator. This Practice Note explores the scope of the principle of economic continuity as set by the EU courts. The circumstances when there is a risk of economic continuity applying are detailed, for example, where there is an intra-group transfer of the infringing business prior to an acquisition.

The Financial Services Compensation Scheme (FSCS) and pensions
Practice notes

This Practice Note looks at the Financial Services Compensation Scheme (FSCS) in the context of pensions. In particular, it covers what the FSCS is, what and who it covers, the extent to which pension schemes are covered, the compensation payable, the qualifying conditions for compensation, the process for making a compensation claim and future changes to the FSCS levy and level of compensation.

TUPE and Beckmann issues in a private sector outsourcing
Practice notes

This Practice Note explains the extent to which the pension rights of transferring employees transfer on a private sector outsourcing, in the light of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and relevant case law (eg Beckmann, Martin, Procter & Gamble). This Practice Note also looks at contractual ways of dealing with transferring rights, related employee communications and post-transfer employer obligations.

Contributions by Dentons Experts

4

Funding Scottish civil litigation
Practice notes

This Practice Note offers guidance on funding civil litigation in Scotland. In doing so, it covers, among other things: various of the Taylor Report Recommendations implemented under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (sometimes referred to as the Civil Litigation Act 2018 or CL(EGP)(S)A 2018) and which came into force on 5 June 2018; speculative actions and success fee arrangements (SFAs); damages based agreements (DBAs); funding implications on expenses; and various practical implications and considerations for funding litigation in Scotland.

Judicial expenses and taxation in Scottish civil litigation
Practice notes

This Practice Note offers guidance on the system of judicial expenses in Scotland’s upper and lower courts (the Court of Session and the Sheriff Court) both at first instance and at appeal (in the Inner House of the Court of Session and the Sheriff Appeal Court). In doing so, it covers, among other things: the principles guiding the courts in making awards of expenses; the role of the auditors of court; the process and bases of taxation; modification and disallowance of expenses; the treatment of outlays and additional fees; interaction with the Legal Aid system and speculative actions (CFAs and DBAs); the summary assessment of expenses; extra-judicial expenses; and personal injury claims (QOCS). It also considers some anticipated changes to judicial expenses and taxation.

Key UK tax issues arising on the sale and purchase of an SPV owning UK commercial property
Practice notes

This Practice Note sets out the UK tax considerations for both a seller and a buyer on the sale and purchase of a limited company special purpose vehicle (SPV) holding a commercial UK property. Specifically, it focuses on the differences between acquiring the shares in an SPV, rather than the underlying property asset, the consequences for the seller on the disposal of shares in the SPV and the issues that will be relevant for a buyer and that a buyer should address in its tax due diligence on the SPV.

Marshalling debt
Practice notes

This Practice Note, produced in partnership with Karen Jacobs of Dentons, considers what the equitable doctrine of marshalling is, a guarantor’s liability, the meaning of a debt, cases looking at marshalling and the practical implications.

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