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EU COMPETITION LAW
Introduction to Course and
General Considerations
Ctlin Grigorescu, LL.M.Eur
Cristina Mihai
02.03.2011
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Overview
1. Introduction to the course
2. General aspects of Competition Law
The Structure of EU Competition Law
The Relationship between EU and National Competition Law
3. Relevant institutions in competition-related matters
4. Bibliography
5. Case law regarding the next courses topic
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1. Introduction to the course | Objectives
Course objectives:
Understanding the main policy areas of EU Competition Law
Acknowledging the importance and the positive effects of the
Competition Policy
Analysing the activity of the institutions involved in competition
related matters and their case law
Underlining the main differences between the EU CompetitionLaw and the Romanian Competition Law
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1. Introduction to the course | Structure
Topics to be discussed during following meetings:
Agreements and concerted practices
Market power and dominance issues in Europe
Merger control
European enforcement and investigation procedure
Procedure of enforcement by National Competition Authoritiesand National Courts
General aspects of Romanian Competition Law
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1. Introduction to the course | Scope
The purpose of competition law:
Enhancing consumer welfare
Ensuring an efficient allocation of resources
Protecting the interests of consumers, by taking direct action
against offending undertakings (e.g. requiring dominant firms to
reduce their prices) Promoting economic equity rather than economic efficiency by
protecting small undertakings against more powerful rivals
(small undertakings should be given a fair chance to succeed)
Achieving single market integration (by EU competition law)
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2. General aspects on the Competition Law
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Source: http://en.wikipedia.org/wiki/Treaty_of_Lisbon
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| EU Competition Law Origins Treaty establishing the European Economic Community (EEC
Treaty), in force since 1958
| Current Relevant EU Legislation
Essential provisions: Treaty on the Functioning of the European Union (TFEU)
Articles 101 109 (former Articles 81 89 of the EC Treaty) Article 101 collusion that restricts competition Article 102 abuse of dominant position Articles 107 109 aids granted by states
Articles 103 and 352 and the Council Regulation (EC) No.139/2004 on the control of concentrations between undertakings
economic concentrations
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| Current Relevant EU Legislation
Secondary Legislation
Council Regulation (EEC) No. 2821/71 on application of Article 85 (3)of the Treaty to categories of agreements, decisions and concertedpractices
Council Regulation (EC) No. 1/2003 on the implementation of therules on competition laid down in Articles 81 and 82 of the EC Treaty
Council Regulation (EC) No. 139/2004 on the control ofconcentrations between undertakings (Merger Regulation)
Commission Regulation (EU) No. 330/2010 on the application of
Article 101 (3) of TFEU to categories of vertical agreements andconcerted practices Other regulations, guidelines and notices
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2. General aspects on the Competition Law | 4
| Current Relevant Romanian Legislation
Essential provisions: Competition Law No. 21/1996 Fundamental Articles: 5, 6 and 10-15
Secondary Legislation EU Councils and Commissions Block Exemption Regulations
(integrated in Romanian law by reference in art. 5 (3) of Law No. 21/1996) Competition Councils Regulation on economic concentrations (OrderNo. 385/2010)
Competition Councils Guidelines on the commitments in the field ofeconomic concentrations (Order No. 688/2010)
Competition Councils Guidelines on the requirements, terms and
procedure for accepting and assessing commitments in case ofanticompetitive practices (Order No. 724/2010)
Other orders, regulations and guidelines issued by the CompetitionCouncil
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2. General aspects on the Competition Law | 5
| Applicability of the EU Relevant Legislation
Regulations General applicability
Fully binding
Direct applicability
Full (both horizontal and vertical) direct effect (usually)
Decisions Individual applicability (usually)
Fully binding
Direct enforceability Direct effect (only vertical C-156/91 Hansa Fleisch [1992], para
13- 15)
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2. General aspects on the Competition Law | 6
Guidelines and notices Not mandatory Must be taken into consideration by national courts
The guidelines and notices indicate the Commissions view on variousmatters relating to the application of the competition rules, and do notform part of the competition legal framework
However, in certain circumstances, the general guidelines and notices
may produce legal effects: In adopting such rules of conduct and announcing by publishing them that
they will henceforth apply to the cases to which they relate, the institutionin question imposes a limit on the exercise of its discretion and cannotdepart from those rules under pain of being found, where appropriate, tobe in breach of the general principles of law, such as equal treatment orthe protection of legitimate expectations. It cannot therefore be precludedthat, on certain conditions and depending on their content, such rules ofconduct, which are of general application, may produce legal effects(Joined Cases C-189/02 Dansk Rrindustri [2005], para 211)
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Main policy areas:
AntitrustThe following are prohibited: Agreements between two or more undertakings which restrict, by object or
effect, the competition (article 101 of TFEU) e.g. cartels Abuse of dominant position (article 102 of TFEU)
MergersMergers are examined in order to determine the extent to which theyrestrict effective competition in the EU Articles 103 and 352 of TFEU Merger Regulation
State Aid
Government interventions are controlled so that they do not interferewith the smooth functioning of the internal market or harm thecompetitiveness of EU companies Articles 103 109 of TFEU
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2. General aspects on the Competition Law |
The Structure of EU Competition Law
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2. General aspects on the Competition Law |
Relations between EU and National Competition Law
General rule: EU Competition Law applies in all cases where anagreement or practice may affect trade between Member States
Commission Notice 2004/C 101/07 Guidelines on the effect on trade
concept contained in Articles 81 and 82 of the Treaty currently
Articles 101 and 102 of TFEU
trade covers all cross-border economic activity includingestablishment
between Member States involves at least two Member
States
may affect implies that it must be possible to foresee with asufficient degree of probability that the agreement or practice
may have an influence, direct or indirect, actual or potential, on
the patterns of trade between Member States
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2. General aspects on the Competition Law |
Relations between EU and National Competition Law | 2
Agreements have to be capable of appreciably affecting trade
between Member States. This requirement is not met when:
The aggregate market share of the parties on any relevant market
within the Community affected by the agreement does not exceed
5% AND
In case of horizontal agreements, the aggregate annual
Community turnover of the undertaking concerned in the productscovered by the agreement does not exceed EUR 40 million
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2. General aspects on the Competition Law |
Relations between EU and National Competition Law | 3
Relevant factors in determining the effect on trade(none of which individually is necessarily decisive)
The nature of the goods or services covered by the agreement orpractice, being sufficient that the products concerned are traded, orlikely to be traded, between Member States. The effect is more readilyestablished where, by their nature, the products are easily tradedacross boarders or are important for undertakings which want to enter
the market in another Member State The characteristics of the agreement or practice. An effect on trade
between Member States will normally be presumed where anagreement or practice directly relates to international transactions,especially if it restricts imports or exports, or where it applies to morethan one Member State or throughout the Community or establishes aCommunity-wide distribution system
The legal and factual environment in which the agreement or practiceoperates
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2. General aspects on the Competition Law |
Relations between EU and National Competition Law | 4
Trade between Member States may be affected in case the
agreement or conduct:
Has or is capable of having as effect: Alteration of the pattern of trade
Partition of the market
Alteration of the structure of competition
The effect may be either direct or indirect (affecting, for
example, a raw material for a product which is traded between
Member States, even if the raw material by itself is not
affected)
And the generated effect is appreciable (de minimis principle)
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Parallel application
Article 103 (2,e) of TFEU Articles 3 (1) and 16 of Regulation 1/2003
Broadly, a national authority or court must not take a decision which runscounter to the decision taken by the Commission
National courts can apply Articles 101 and 102 of TFEU without it beingnecessary to apply national competition law in parallel. However, where anational court applies national competition law to agreements, decisions orpractices which may affect trade between Member States within the meaningof Article 101 (1) of TFEU or to any abuse prohibited by Article 102 of TFEU,they also have to apply Community competition rules to those agreements
Whether or not the legal concepts established in the national legal provisionsreflect the Community concepts of undertakings, agreements, concerted
practices or abuses, it is the Community concepts which the nationalcompetition authority or national court must overlay upon its national law
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Convergence rule
Article 3 (2,3) of Regulation 1/2003
Under Article 101 of TFEU there is a duty to arrive at a consistentresult under national law: Where an agreement may affect trade between Member States,
the application by a national authority of the national competition
law must not operate to prohibit an agreement:- If it does not restrict competition within the meaning of Article
101 (1) of TFEU
- If it fulfils the conditions of Article 101 (3) of TFEU OR
- If it is covered by a block exemption
Where the agreement falls outside Article 101 (1) of TFEU,because it has no effect on trade between Member States, theconvergence rule is not engaged and there is no restriction on theapplication of the national competition law
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Convergence rule (2)
Under Article 102 of TFEU, national competition authorities are
not precluded from adopting and applying on their territory
stricter national laws which prohibit or sanction unilateral
conduct engaged by undertakings
The convergence rule does not apply when the national
authorities apply national merger control law or provisions of
national law that predominantly pursue an objective different
from that pursued by Articles 101 and 102 of TFEU
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Cooperation
Chapter IV Cooperation of Regulation 1/2003 Network Notice relating to cooperation and exchange of information
between the Commission and the national competent authorities
Notice on cooperation between the Commission and the national courts
The Commission has a duty of sincere co-operation with the national
court (Case C-2/88 Zwartveld [1990], para 10)
Equally, national courts may be obliged to assist the Commission in
the fulfilment of its tasks and to avoid adopting measures that could
jeopardise the Commissions function
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Consistency
Article 16 of Regulation 1/2003 Notice on cooperation between the Commission and the national courts
National courts decisions under Articles 101 and 102 of TFEU have to
be consistent with the Commissions decisions. National courts can
never take a decision running counter to that of the Commission The Commission is entitled to adopt decisions under Articles 101 and
102 of TFEU which may conflict with the national courts decision
The consistency rule is necessary for: securing fairness in the particular case pending before the Commission
and the national court securing the equal treatment of parties in similar or related circumstances
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Relations between EU and National Competition Law | 9
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Institutions tasked with applying EU competition law
European Commission > Directorate-General of Competition
Community Courts Court of Justice
General Court (former Court of First Instance)
National Competition Authorities (together with the European
Commission form the European Competition Network) and
National Courts
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3. Relevant institutions in competition related matters
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European Commission
Charged with ensuring that the provisions of TFEU, and themeasures taken pursuant thereto, are applied
The Commission is of central importance to the enforcement of
Community Competition Law
The main departments of the Commission relevant in thecompetition field are: Secretariat-General ensures the overall coherence of the
Commissions work
Legal Service advises the Commission, checks on the legality of
its decisions and represents the Commission in the Court of Justiceand the General Court
Directorate-General of Competition
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Directorate-General of Competition Mission
Enforces the competition rules through: Investigation and decision, taking direct enforcement action
against companies and governments when it finds evidence of
unlawful behaviour, mainly by:- Obtaining from undertakings all necessary information either by
simple request or decision
- Conducting all necessary inspections in order to perform its duties Commission officials may carry out inspection either under an
authorisation of the Commission or under a formal decision, with or
without prior notice (Dawn Raids) to the undertakings involved
- Closing its file on a case by accepting legally binding
commitments from undertakings- Taking decisions against undertakings in case of infringements of
the competition rules
- Imposing fines either as a result of the conduct of the undertakingduring the investigation or as a result of an undertaking infringing
Articles 101 (1) and/or 102 of TFEU
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Directorate-General of Competition Mission (2)
And enforces the competition rules through:
Legislation and guidance
- Has powers to participate in the shaping of legislative measures
enacted by the Council by initiating proposals for legislative acts- Has powers to enact Directives and Decisions under Article 106 (3) of
TFEU
- Under Article 105 (3) of TFEU, the Commission may adopt
regulations relating to block exemptions
- Issues notices and guidelines guidance for undertakings and
indicate the Commissions views on various competition matters (e.g.
De Minimis Notice, Guidelines on Vertical Restraints, Horizontal
Cooperation Guidelines, Relevant Market Notice)
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Directorate-General of Competition Mission (3)
Takes decisions by which it declares a concentration compatible orincompatible with the common market
May fight mergers when they significantly reduce competition byrequiring the undertakings concerned to dissolve the merger
Helps direct state support more closely to improving competitivenessand/or reducing regional and social disparities and away from aidwhich distorts competition on the market without any compensatingbenefit
Works in partnership with other policies to support the delivery of otherpolicy objectives in a pro-competitive way at EU and national level
Works in partnership with national competition authorities and nationalcourts to ensure an effective and coherent application of EUcompetition law
Promotes the private enforcement of EU competition law, by providingguidance and transparency about competition rules and theirenforcement
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Community Courts
There are two tiers of judicial decision-making in theCommunity: General Court
European Court of Justice
The judgments of the Community Courts are binding in matters
of law in all Member States
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General Court
Formally known as the Court of First Instance Created in 1988 to help the European Court of Justice copewith the large number of cases brought before it
Is made up of at least one Judge from each Member State Sits in Chambers of three Judges (usually, in competition
cases) or five Judges (usually, in state aid and dumping
cases), but exceptionally in Grand Chamber (13 Judges) or fullcourt It normally operates without the assistance of an Advocate
General
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The General Court has jurisdiction to hear:
Direct actions brought by natural or legal entities againstacts of the institutions, bodies, offices or agencies of the EUand against regulatory acts or against a failure to act on thepart of those institutions, bodies, offices or agencies, e.g. acase brought by a company against a Commission decision
imposing a fine on that company for review of the fine orannulment of the decision Actions brought by Member States against the Commission Actions brought by Member States against the Council
relating to acts adopted in the field of State aid, dumping
and acts by which it exercises powers of implementation Actions seeking compensation for damages caused by the
institutions of the EU or their staff
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European Court of Justice
Consists of one judge from each Member State, assisted byeight Advocates General Sits in Chambers of five Judges usually in competition cases,
but exceptionally in Grand Chamber (13 Judges) or full court It acts as an appeal court against a decision of the General
Court on the grounds of lack of competence, breach of
procedure before the General Court or infringement ofCommunity law Under article 267 of the TFEU, the Court of Justice has
jurisdiction to give preliminary rulings, at the request of a courtof a Member State, concerning, inter alia, the interpretation ofTFEU and of the Treaty on European Union and of acts of theCouncil and the Commission
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Institutions tasked with applying Romanian competition law
Competition Council National Courts
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Competition Council Main Duties and Prerogatives
To take decisions in case of infringements of the CompetitionLaw no. 21/1996 or of the provisions of Articles 101 and 102 of
TFEU
To perform investigations for the application of certain
competition rules and of the provisions of Articles 101 and 102of TFEU, including preliminary investigations
To accept binding commitments from undertakings and to
impose temporary measures to undertakings
To take decisions concerning economic concentrations
To carry out the effective enforcement of its decisions
To carry out, at its own initiative, investigations aimed at a
better understanding of the market
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Competition Council Main Duties and Prerogatives (2)
To supervise the enforcement of competition related legalprovisions and norms
To inform the Government about monopoly situations and to
propose the measures deemed necessary to remedy the
ascertained dysfunctions To give advisory opinion on the draft normative acts that may
have anti-competitive impact
To recommend to the Government to adopt measures
facilitating the market and competition development
To draw up studies and reports on its field of activity, and toinform the Government, the public and the specialised
international organizations about this activity
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Competition Council Main Duties and Prerogatives (3)
To represent Romania and promote information andexperience exchanges in the relationships with specialised
international organizations and institutions, and to co-operate
with foreign and community competition authorities
To ensure the application of the provisions of the GovernmentEmergency Ordinance No. 117/2006 regarding national
proceedings in the state aid field
As a National Competition Authority, has all rights and
obligations provided by Regulation No. 1/2003 and Regulation
No. 139/2004 regarding economic concentrations ofundertakings
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National Courts
Bucharest Court of Appeal Acts as an appeal court against the decisions or inspection orders of the
Competition Council or the regulations (in Romanian reglementri) issuedby the Competition Council in the application of the Law 21/1996
Cancels the act of a public authority or institution which led to therestriction, prevention or distortion of competition, compels public
authorities or institutions to issue an administrative act or to perform anadministrative operation, at the request of the Competition Council Gives authorisations for inspections in certain cases (e.g., inspection of
undertakings directors premises)
High Court of Cassation and Justice
Settles the appeals against the judgements of the Bucharest Court ofAppeal
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National Courts
Special competence Bucharest Court of District 1 In case of sanctions applied by competition inspectors, the
minutes through which such sanctions are applied may be
challenged before the Bucharest Court of District 1. These
sanctions may be applied for compelling the undertakings to:
- Comply with the commitments or obligations undertaken in respect toan economic concentration, made binding by a decision of the
Competition Council
- Supply complete and correct information in response to a request of
the competition inspectors
The authority competent to settle the appeal against the Courtsdecision is the Bucharest Tribunal
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4. Bibliography
Peter Roth QC, Vivien Rose, Bellamy & Child: European CommunityLaw of Competition, Oxford University Press, 2008, pg. 2-40, 1404-
1429 Jonathan Faull, Ali Nikpay, Faull & Nikpay: The EC Law ofCompetition, Oxford University Press, 2007, pg. 96-111, pg. 117-134
Richard Whish, Competition Law, Oxford University Press, 2009, pg.74-80, 142-145
Valentine Korah,An Introductory Guide to EC Competition Law and
Practice, Hart Publishing, 2007, pg. 26-42, 66-73, 241-250 http://ec.europa.eu/competition/
http://curia.europa.eu/
http://eur-lex.europa.eu/
http://ec.europa.eu/competition/publications/glossary_en.pdf(Glossary of terms used in EC Competition policy note:references need own reworking to updated laws and regulations)
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4. Bibliography | 2
Treaty on the Functioning of the European Union consolidated version 30.03.2010 OJ C 38
Council Regulation No. 1/2003 consolidated version18.10.2006 OJ L 1 Commission Notice Guidelines on the effect on trade concept
contained in Articles 81 and 82 of the Treaty OJ C 101,27.04.2004
Commission Notice on cooperation within the Network ofCompetition Authorities OJ C-101, 27.04.2004 Commission Notice on the co-operation between the
Commission and the courts of the EU Member States in theapplication of Articles 81 and 82 EC OJ C101, 27.04.2004
Case C-156/91 Hansa Fleisch [1992], para 15 Case C-189/02 P Dansk Rrindustri [2005], para 211 Case C-2/88 Zwartveld [1990], para 10
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5. Case law regarding the next courses topic
Agreements and concerted practices
Case C-189/02 P Dansk Rrindustri [2005], para 112-113
Case C-309/99 Wouters [2002], para 46-47, 49 Case T-66/99 Minoan Lines v Commission [2003], para 121 Case C-204/00 P Aalborg Portland A/S and others v Commission
[2004], para 59 Case C-205/03 P FENIN v Commission, Opinion of Advocate General,
para 26
Case C-97/08 P Akzo Nobel NV and others v Commission [2009],para 55, 58 Case T-128/98 Aroports de Paris v Commission [2000] Case C-49/92 P Commission v Anix Partecipazioni [1999], para 108,
131 Case T-53/03 BPB plc v Commission [2008], para 82
Case T-44/02 OP Dresdner Bank v Commission [2006], para 53-55 Case 48/69 Imperial Chemical Industries Ltd. v Commission [1972],para 64
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5. Case law regarding the next courses topic | 2
Case T-168/01 GlaxoSmithKline Services Unlimited v Commission
[2006], para 118, 171
Joined Cases 29/83 and 30/83 Compagnie Royale Asturienne desMines SA and Rheinzink GmbH v Commission [1984], para 3
Case T-395/94 Atlantic Container Line v Commission [2002], para 76
Case 31/80 LOral v De Nieuwe AMCK [1980], para 19
Commission Decision of 15.10.2008, Case COMP/39188 Bananas,
para 226 Case T-13/03 Nintendo v Commission [2009], para 41
Case C-297/06 CEPSA [2008], para 44
Case 26/76 Metro v Commission (No. 1) [1977], para 20
Commission Decision of 16.07.2003, Case COMP/37.975
PO/Yamaha, para 122 Commission Decision of 05.09.1979, BP Kemi/DDSF, para 64
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5. Contact
33 Dionisie Lupu Street
RO - 020021 BucharestPhone: (+40 21) 264 16 50
Fax: (+40 21) 264 16 60
E-Mail: [email protected]
Web: www.bpv-grigorescu.com
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Catalin Grigorescu, [email protected]
Cristina [email protected]
Iulia [email protected]
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6. Contacts bpv LEGAL
www.bpvlegal.com
bpv Hgel Rechtsanwlte OEG
Rond Point Schuman 9
B- 1040 Brussels
Tel.: +32 2 286 81 10
Fax: +32 2 286 81 18
www.bpv-huegel.com
bpv Jadi-Nemeth
Vrsmarty Tr 4, Medimpex Building
H-1051 Budapest
Tel.: + 36 1 484 0484
Fax: + 36 1 484 0433
www.bpv-jadi.com
bpv Braun Partners
Palac Myslbek, Ovocny trh 8
CZ- 110 00 Prague 1
Tel.: +420 224 490 000
Fax: +420 224 490 033
www.bpv-bh.com
bpv Hgel Rechtsanwlte OEG
Donau-City-Strae 11, ARES-Tower
A- 1220 Vienna
Tel.: +43 1 260 50 0
Fax: +43 1 260 50 133
www.bpv-huegel.com
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