Bill MacLeod’s Message From The Chair (Fifty Countries and Counting, Sixty Sessions and More – at Spring Meeting)

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Bill MacLeod is serving as the ABA Section of Antitrust Law’s 2016-2017 Chair. Below is his most recent message as posted on the ABA website:

Fifty Countries and Counting, Sixty Sessions and More – at Spring Meeting

Competition and consumer protection are convening in Washington for an early spring this year.  Officials from Europe, Asia, Africa and the Americas, along with practitioners from over fifty countries will descend on D.C. for the one event that antitrust, advertising and privacy lawyers can’t miss:  The Spring Meeting of the Section of Antitrust Law, March 29 – 31.

On the agenda are more programs than ever before – fireside chats with foreign agency heads, major pronouncements from featured enforcers, deep dives into dozens of subjects, and dinner with General David Petraeus, an expert without peer on security, diplomacy, intelligence and economics.  Wondering about world prospects?  The General will take our questions.

Continue reading on the ABA website.

William MacLeod, Chair, ABA Section of Antitrust Law, Provides Introductory Note to the 2017 Presidential Transition Report

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Bill MacLeod, chair of the American Bar Association’s Antitrust Section and Kelley Drye partner, addressed the Section with an introductory note to their eighth sequential Presidential Transition Report. The 2017 Presidential Transition Report offers a retrospective of current state and federal antitrust and consumer protection law and policy, as well as recommendations for ways the new Trump administration might consider further strengthening policy and enforcement to deal with new antitrust challenges on the horizon. In his note, Mr. MacLeod calls out some highlights in the report including recommendations for policy in health care, vertical mergers and privacy, calls for more transparency and consistency in investigations, and analysis of controversial issues at the intersection of antitrust and intellectual property.

Read Bill’s introduction here and the full report here

American Bar Association Section of Antitrust Law, PRESIDENTIAL TRANSITION REPORT: THE STATE OF ANTITRUST ENFORCEMENT 2017

HSR: Newly Expanded 4(c) and 4(d) Requirements

The Premerger Notification Office of the Federal Trade Commission announced on November 28, 2016, that they were revoking previous informal advice regarding the scope of Items 4(c) and 4(d) of the HSR Form.  In the past, the PNO has taken the position that documents that would otherwise be responsive to Items 4(c) and 4(d) but discuss only foreign markets would not have to be submitted.  Effective November 28, filers may no longer exclude such documents.

The change in interpretation is likely not going to have any substantive effect on compliance.  The FTC offers two examples, the first of which provides:

The transaction involves the acquisition of a manufacturer of Chemical X. A board presentation regarding the transaction discusses the location and capacity, including shares, of all manufacturers of Chemical X, none of which is located in the United States. Under the PNO’s current informal guidance, this document could be excluded from the filing, even though it may be highly relevant to an initial competitive analysis of the U.S. market for Chemical X.

The problem with the old rule, at least as it is described in this blog post, is that it assumed that one had to have a physical presence in the United States to sell product here.  One could very well take the position that even though the manufacturers of Chemical X were not physically located in the United States, they could sell in or into the United States.  The relevant geographic market (as opposed to the physical presence) in this situation would not be exclusively foreign.  Under this view, the reporting person could not exclude the document.

I suspect that in practice only a handful of documents were excluded on the old basis.  A prudent practitioner would have likely included them lest risk a bounce.  As such, this post, which has gotten some press, will not make much of a difference in the vast majority of filings, and should not be the basis of any meaningful concern.

The Antitrust Forecast

It’s not that hard to predict. If you want to factor the antitrust forecast into your business plans, you have two weather patterns looming.  We can assess the first one quite accurately already.  And notwithstanding all the speculation, we can get a pretty good feel for the second front as well.

Forget about the first 100 days. The first phase of the new antitrust era will last a good six months, and could stretch out longer.  The immediate outlook?  More of the same.  If you are responding to an investigation, if you have a deal pending, the wind is hardly going to shift.  Your encounter next week or next month will remind you of your last meeting. If you have negotiated a deal with the staff, don’t expect them to change their mind.  And don’t expect them to postpone the proceeding.  Virtually all the officials who are looking at your matter today will be handling it this winter, and probably next spring.  That goes from bottom to top.

I’ve worked through the last five transitions at FTC and DOJ (inside the agencies during one), and I don’t recall a single administration that had its full antitrust team in place before the cherry blossoms staged their show. We may know who the new agency heads will be by next spring, but how they operate will remain to be seen.  New FTC Commissioners and Assistant Attorneys General must be nominated by the President confirmed by the Senate.  (Of course, a sitting FTC Commissioner could be given the Chair and an acting head could be named at DOJ’s Antitrust Division).  These decisions typically do not come in the first wave of appointments.

Once the new heads are announced, confirmed and sworn in, the first thing they will do is assemble their teams.   It takes time to recruit bureau directors, deputy assistant attorneys general and front office personnel.  It takes more time to coordinate and deploy them.  Meanwhile, the career civil servants, who occupy all but a few positions at the agencies, will continue to do the daily work of law enforcement.

Sometime next summer the second phase will probably begin, but we won’t notice it right away. We will hear about it in speeches, and some of us may experience it first-hand with investigative  requests, but it will take another year or two before most businesses feel its effects.  The reason is simple.  Every new administration inherits the pipeline of the last one, and right now at the antitrust agencies that pipeline is full.  It takes months for an agency to devise new strategies and much longer to convert them into enforcement initiatives.   We should not expect to see the results of new approaches until year two or three of the administration.

What might we see in the way of a course correction? Don’t expect a pirouette.  The history of transitions in the last three decades suggests that antitrust enforcement in the future will look remarkably like it does today.  The debate over enforcement today (and there was a debate in the campaign) does not portend the end of that history. Ironically, most of the criticism of current enforcement has come from advocates of more, not less, regulation than the current administration imposed.  By and large, there is consensus about the policies at FTC and DOJ.

One more factor suggests that the antitrust we know today is a good barometer of the antitrust we’ll face tomorrow. Antitrust is, after all, law enforcement.  The agencies don’t get to make the law they enforce.  It comes from century-old statutes that Congress is not likely to change.  The interpretation of those statutes is in the hands of federal judges, whose decisions have placed limits on the agencies’ options.  We know they are not going anywhere soon.

It is always fun to speculate about the storms that might sweep through antitrust. But we have no basis to predict abnormal weather patterns in the seasons ahead.   We know where the trouble is likely to arise, and we should be able to avoid it.  It makes perfect sense to plan now for an uneventful voyage.

Bill MacLeod is the Chair of the Antitrust and Competition Section at Kelley Drye & Warren.  For 2016-17, he also Chairs the Antitrust Section of the American Bar Association.  These views are his own.

Antitrust in a Clinton Administration

Regardless of your political affiliation, it is worth understanding the potential changes to antitrust enforcement in the next administration.  We will take a look at how antitrust might be handled by each of the two major party candidates.  This week, we’ll take a look at a possible Clinton administration.

The Clinton Campaign has released an economic manifesto of sorts that discusses, among other things, what her vision of antitrust enforcement would be if she were elected President.  This paper represents the third statement on antitrust made by the Campaign or its surrogates.  The first, an op-ed from October 2015, was a high level piece discussing the need for vigorous enforcement.  The second, in the form of a speech by Elizabeth Warren, was more radical.  It too insisted on aggressive enforcement.  The speech did raise at least some issues, like a revision to the vertical merger guidelines, that seemed a bit far afield from current thought, both conservative and liberal.  The most recent is a more balanced and practical statement of what the administration plans to do, and as such I think serves as a very good barometer for what antitrust could look like with Mrs. Clinton at the helm.  Of course, the proof will be in the pudding.  Who President Clinton nominates to run the Agencies, as well as how much funding she can secure for them, will tell you a lot about whether she truly does wish to or even can invigorate the antitrust laws.

It is simply impossible today to just turn on antitrust enforcement and deconcentrate large numbers of markets and break up monopolies.  Chicago school economics permeate the jurisprudence, the biases of academics and the views of most enforcers, both conservative and liberal.  The courts have significantly reduced what sort of behavior violates the antitrust laws.  And with the adoption of the 2010 Merger Guidelines, the Agencies have significantly reduced the number of mergers that they feel are worth investigating.  Simply bringing more merger challenges will not result in more mergers being stopped.  The case law simply cannot support that.  Moreover, bringing more cases without having a clear plan and theory will result in more bad decisions for enforcers, further contracting the jurisprudence, the opposite of reinvigorating enforcement.

What really needs to be done is either create a whole new antitrust regime where behaviors that are presently excusable are condemned or engage an anti-Chicago insurgency where the tenants of the Chicago school are systematically tested and debunked and the case law is overturned.  But that is a long and slow process and it may be impossible with a split Congress.

Enforcers are not helpless, however.  What the Agencies can do is increase the scope and scale of their investigations.  They need to look at more behaviors and look at them more deeply.  And through those investigations develop a new antitrust lexicon, a set of analytical tools economists, courts and future enforcers can use to tackle problematic behaviors.  With compulsory process, the Agencies have a unique ability to look at an industry in depth.  And with their stature and importance in our economy, they have the ability to engage the brightest minds to understand and articulate the potential harms.  Mrs. Clinton’s last paper seems to invoke this notion.

From a purely practical standpoint, the first thing the Agencies need to do to “reinvigorate antitrust” is to redefine what an agency “success” is.  In recent years, the Agencies have been expressing pride at the fact that the vast majority of second requests result in some remedy.  The feeling is that that high ratio means that they are enforcing efficiently and effectively.  It is likely true that those investigations were warranted, but the other way to look at that statistic is that a great deal of borderline cases were not investigated and that perhaps some violations were in fact missed.  A true enforcement-oriented regime would not shy away from investigating a borderline case but would embrace it.  False positives in a Clinton regime would impose added expense on some businesses, but the law and theory of antitrust would have the opportunity to bloom again.

And with that in mind, here are my top 5 predictions for a Clinton Administration.

  1. Civil non-merger investigations increase by 20%. Settlements increase by 10%.  Suits remain relatively stable.
  2. Second requests increase by 20%. Settlements increase by 10%.  Suits remain relatively stable.
  3. Merger retrospectives increase by 30%. Settlements increase by 10%.
  4. Industry studies increase by 30%.
  5. Commission papers increase by 30%.

Bill MacLeod’s Message From The Chair

macleod_william

Bill MacLeod is serving as the ABA Section of Antitrust Law’s 2016-2017 Chair. Below is his most recent message as posted on the ABA website:

Competition, Disruption and Transition: The Future of Enforcement at Fall Forum

Nobody I know in the competition or consumer protection bar can remember when more investigations, more complaints, and more trials were targeting major sectors of the economy. Officials and practitioners from Canada, the Americas and the EU say the same, and nobody sees the trend tapering off.

Continue reading on the ABA website.

Fortiline LLC: Invitations to Collude in Dual Distribution Systems

Fortiline LLC distributes ductile iron pipe. It competes with the manufacturer which somewhat regularly undercuts its distributor in the market.  Fortiline on several occasions asked the manufacturer not to do so.  Fortiline emailed the manufacturer complaining that the manufacturer was not keeping its numbers up compared to other manufacturers.  Fortiline also stated that “[w]ith this approach we will be at a .22 [margin] soon instead of a needed .42.” Fortiline later complained that the manufacturer was pricing at a 0.31 margin, “20% below market.”

The FTC sued under Section 5 of the FTC Act, and Fortiline entered into a consent agreement. The FTC alleged that Fortiline had invited the manufacturer to collude in price to the end consumers.  The consent prohibits Fortiline from attempting to enter into an agreement to fix prices among other things. It allows Fortiline to discuss “procompetitive aspects” of the manufacturer-distributor relationship The order lasts for 20 years.  Commissioner Ohlhausen dissented.

With regard to that “exception,” the Order states:

PROVIDED, HOWEVER, that it shall not, of itself, constitute a violation of Paragraph II. of this Order for Respondent to engage in any conduct that is (1) reasonably related to a lawful manufacturer-distributor relationship, lawful joint venture agreement, or lawful merger, acquisition or sale agreement; and (2) reasonably necessary to achieve the procompetitive benefits of such manufacturer-distributor relationship or of such agreement. For the avoidance of doubt, it shall not constitute a violation of Paragraph II of this Order for Respondent: (i) to communicate with a Manufacturer regarding Respondent’s desire to receive prices or rates (including rebates and discounts) at least as favorable as those granted by that Manufacturer to a Competitor or Contractor; (ii) to request, negotiate, or enter into an agreement with a Manufacturer under which Respondent shall be that Manufacturer’s exclusive or quasi-exclusive distributor; or (iii) to request or enter into an agreement with a Manufacturer under which Respondent distributes that Manufacturer’s ductile iron pipe to a Contractor previously or potentially served by that Manufacturer.

[Emphasis mine.] A “Manufacturer” is “any Person engaged in the business of manufacturing or fabricating ductile iron pipe, and any such Person’s employees, agents, and representatives.”

Fortiline sells the manufacturers’ product. It is invested in understanding and promoting the product and developing the brand.  This is a case where Fortiline’s own vendor is free riding off Fortiline’s investment in the local market.  It is outrageous to think that Fortiline would have to sit by and take that.  And the consent itself embraces this fundamental circularity.  The exception allows the very behavior the complaint condemns.  The only thing this complaint achieves is to raise Fortiline’s costs by imposing a regulatory burden on it that no other competitor otherwise has.  It also causes them to incur needless legal fees as they will assuredly have to pass by their lawyers each missive they write to the manufacturer.  If anything this process has distorted this market.

The real lesson from this case is never enter into an agreement where your supplier can target the market directly. As soon as you complain about their free riding, you’ll be sued by the FTC.

Causality and Diluting Trademarks Through Online Searches: What the FTC Missed in 1800Contacts

The FTC sued 1800Contacts for entering into a series of agreements with competitors that limited the competitors’ ability to bid on certain trademarked terms as search terms in online search term auctions.

Search engines like Google sell search terms. An advertiser will bid for a search term.  If it wins, its advertisement will be listed as an “advertisement” above the search results whenever someone types that search term into the search engine.  Google allows companies to bid for search terms that are trademarked by others.  So, a company that is not 1800Contacts that sells contacts on line bids for and wins the search term “1800Contacts.”  When someone searches for that term, the company’s ad will appear first in the list of results before the results from the search.  The mere acquisition of an AdWord that is trademarked by another company is not a trademark violation, according to the courts.  How the acquiring entity uses that trademarked name in the advertisement that appears in the search results can be, however.

Key to this case is going to be the relevant product market and what role advertising placement in response to online search plays in the acquisition of contacts. Do customers buy online and from bricks-and-mortar stores?  Is search, and in fact is ad placement first in the list responses, key to how consumers locate and purchase contacts, or is it one of many ways?  Absent isolating online sales as a relevant market, and proving that the majority of customers locate contact vendors through search and do so by clicking on the first ad they see, the Commission is going to have a hard time proving the agreements have negatively affected competition.  Intuitively, there appears to be many ways to acquire contacts.  I can call 1800Contacts.  I can go to Costco.  I believe my ophthalmologist and optometrist sells them as well.  I might also search for “contacts” online.  I doubt I would search for “1800Contacts” unless I specifically wanted to buy from them.  The more avenues I have, the lesser the influence of search on my product acquisition.  And if I can recognize that the first selection is an advertisement, the role of AdWords acquisition plays an even more attenuated role in my decision making.  Ultimately, the Commission has to show an effect in a relevant market.  For there to be that effect, search as well as ad click through has to be the critical method by which consumers acquire contact lenses.  Otherwise, these agreements have no effect on competition.

The other way the Commission could back into liability would be for them to claim that there is no procompetitive rationale for the restraint. Since there is no procompetitive value and potential anticompetitive effect, the restraint should be condemned.  The way they win there is the general notion that simply buying a competitor’s trademark as an AdWord is not infringement, and therefore not a protectable interest.  Absent that interest, the restraint is naked and condemnable.

But just because there is no trademark violation doesn’t mean that there is no commercial harm or protectable business interest. If I enter “1800Contacts” into a search engine, at least intuitively, it seems like I would be looking for that company.  Even though there is a graphic that says “ad,” if I weren’t a sophisticated user of the Internet, I might very well think I’m getting service from that company where I might not in fact be.  Moreover, Google’s process of selling trademarked AdWords to anyone who wants to buy them may in fact be diluting the marks.  A person who searches 1800Contacts and is shown a variety of different competitors might come to think that that term is generic and will pick up any contact seller.  It would be improper of an antitrust court to conclude that because a trademark holder does not suffer trademark infringement it cannot be otherwise harmed.  Protecting its brand from become generic in the minds of users and ensuring that folks who want to buy on line can find their products could very well have value to a company, value that it is entitled to protect.  Given the ostensibly inconsequent role search plays in the ability of purchases to locate contacts, that benefit may very well be sufficient to support legality.

This case is a solution in search of a problem.

Didi Acquires UberChina

Uber Technologies Co. announced today that it was selling its Chinese affiliate to rival Didi Chuxing Technology Co.  The Wall Street Journal reports that the sale is the end of a three-year effort by Uber to penetrate the Chinese market.  In the end, Uber had approximately 10.1 million riders to Didi’s 42.1 million.  Didi merged with another rival in 2015, Kuaidi Dache, effectively extinguishing the Kuaidi brand post consummation.  Uber will be taking a sizeable stake in Didi in exchange for its business.

From an American antitrust standpoint, this deal could have drawn significant investigative interest.  While not faring nearly as well as its local rival, Uber had invested a great deal of time and effort into developing a Chinese presence.  Indeed, it had developed a base of over 10 million riders.  By most measures, Uber is not an insignificant competitor and would not be considered “failing” or even “flailing.”  Indeed, one might even see them as a classic maverick.

A particularly aggressive enforcer might also take a hard look at what was actually promised in the negotiations between Uber and Didi.  Uber is taking a large chunk of Didi’s stock in exchange for exiting the market.  The noncompete will also be of particular interest.

But this is China.  Their anti-monopoly law is relatively new, and they bring few actual challenges to transactions.  Didi is also a national champion in the high tech space, a place where very few companies worldwide successfully challenge American supremacy.

Implementation of the Damages Directive: The Changing Landscape of EU Competition Law

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Somewhat overshadowed by media attention surrounding the repercussions of the Brexit vote and subsequent impact on the United Kingdom’s laws and economy, the landscape of Europe’s competition law regime is undergoing a notable change this year, as well.  By December 27, 2016, each EU member state is required to implement the European Union’s Damages Directive (2014/104/EU) – meaning that each state must offer a mechanism to facilitate private enforcement of damages claims for the infringement of competition rules.

This summer, member states such as Germany, Spain and others have unveiled proposals that call for amending current competition  acts to comply with the Directive’s conditions.  Final parliamentary votes are expected this fall – in advance of the late December deadline –after draft legislation has been published and commented g(upon in each jurisdiction

I.   Considerable Changes

The changes imposed by the Directive are significant, as it is designed to use national courts to help victims of anticompetitive conduct and cartel behavior obtain damages for losses suffered.  The Directive, which entered into force on December 25, 2014 after more than a decade of debate and negotiation, thus promotes a less fragmented standard for private antitrust damages actions across all member states.  Indeed, the implementation of the Directive is likely to lead to a surge in private actions brought in national courts.

Although the European Commission has an active competition authority which regulates anticompetitive conduct and punishes cartel behavior, it is not conventional practice for European consumers to bring follow-on claims for damages as a result of the Commission’s findings of infringement. While the United Kingdom, Germany, and the Netherlands are known as claimant-friendly jurisdictions, other member states have effectively blocked private claimants from bringing successful damages cases. The Damages Directive changes this by establishing specific minimum requirements that all member states must implement by the end of 2016.  The requirements under the Directive include:

  • Expanded access to evidence: all parties (including third parties) must comply with court orders mandating the disclosure of relevant evidence to the other side; the judge will be responsible for ensuring that evidence disclosure orders are proportionate and that confidential information is protected;
  • Precedential effect of national infringement decisions: final decisions by national competition authorities determining that an antitrust violation occurred will become binding on the national courts in that member state and constitute full proof that the infringement happened – an expansion from the former regime whereby only European Commission antitrust rulings were given precedential effect;
  • The right to full compensation: Member states now must ensure that any claimant harmed by a competition law infringement can claim and receive full compensation for the harm suffered;
  • Longer limitations period: The statute of limitations will increase, allowing victims at least five years from the time that the infringing activity ended (and the claimant had the possibility to discover that they suffered harm) to bring damages claims;
  • Indirect purchaser claims: The burden of proof will decrease, allowing indirect purchaser claimants to rely on the assumption that direct purchasers of price-fixed goods passed on the overcharge; and
  • Quantification of harm: A rebuttable presumption that the infringement of antitrust law by cartelists caused harm to consumers will be established, and the presumption requires that national courts be able to estimate the amount of harm suffered. This presumption is a clear divergence from standard legal practice in some member states (especially in Nordic countries) where the burden previously had rested with the claimant to prove that damages were suffered.  However, defendants have the right to refute the presumption by offering evidence that no damages were caused.

Notably, the Directive does not mandate that EU member states introduce class actions or other methods for collective redress of claims.  However, in some jurisdictions such as Germany, existing case law permits injured parties to jointly bring actions by assigning their respective claims.

II.   The Ongoing Process and Innovative Approaches by Member States

The implementation process for member states to incorporate the Directive into their legal systems is ongoing.  Latvia already has partially adopted legislation.  Legislative proposals are pending in the Netherlands (submitted to parliament on July 7, 2016), Luxembourg (submitted to parliament on July 5, 2016), and Finland (submitted to parliament on May 19, 2016).  Spain has proposed a “first draft” of implementation measures, while at least eight other member states have held public consultation periods to receive comments and input.

The realization of the Directive will require many states to enact sizable amendments to their current competition law regimes.  In a somewhat surprising twist, the proposals offered by some states have advanced the minimum standards mandated by the Directive.  Member states thus seem to be using the Directive as a baseline while employing their discretion to propose new standards beyond simply replicating the Directive’s provisions into national law.

For example, in following the Directive’s requirements on the disclosure of evidence, Spain has proposed a completely revamped set of rules on access to evidence as part of an amended Civil Procedure Act.  Therefore, in implementing the Directive, Spain is addressing more than antitrust cases – the new rules on disclosure would be applicable to all civil litigation.

On July 1, 2016, the German Federal Ministry of the Economy and Energy published a draft bill to amend Germany’s competition law act, which would serve to implement the Directive into German law.  After a period of public comment, the Ministry expects Parliament to vote on the bill this fall before the December deadline.  Although it is already considered a claimant-friendly jurisdiction, Germany’s proposal also creates a more vigorous discovery-like procedure.  Under the draft law, the new Section 33g provides for widespread disclosure under German substantive law – a broader right than the Directive itself, which only mandates that states enable national courts to order disclosure in the courts’ discretion.  Additionally, Section 33g (7) of the draft law requires the party requesting disclosure of documents to reimburse the other party for reasonable costs associated with producing the documents.

In Finland, the proposed law would enact tough standards for parental liability.  Under the Finnish proposal, the purchaser of a business would be liable for antitrust violations associated with that business if the purchaser was, or should have been, aware of the infringements at the time of the purchase.  This focus on parental liability exceeds the scope of the Directive, which is geared toward addressing measures to compensate victims of cartel behavior and does not mandate changes to parental liability laws.  A similar emphasis on parental liability exists in Portugal’s initial legislative proposal, in which liability automatically would be extended to parent undertakings for antitrust infringements committed by subsidiaries.  According to Article 3 of Portugal’s proposal, the parent and the subsidiary must form a single economic unit and the parent must have exercised significant influence over the subsidiary’s behavior and actions (referred to as “decisive influence”).

III.   Impact on European Corporations

The UK, Germany, and the Netherlands had emerged as the main jurisdictions for claimants seeking to bring competition law claims, based on favorable laws for follow-on damages as well as experienced judiciaries familiar with private damages cases.  The Directive, however, strives to allow victims of anticompetitive conduct to obtain damages in the national courts of any EU member state.  It should remove the procedural obstacles that currently exist in some member states with less developed frameworks for private damages actions.

Corporations across Europe will have to closely observe how certain provisions in the Directive are adopted into national law.  For example, the provisions on the disclosure of relevant evidence should lead all businesses to consider enacting document retention policies – and such policies may not currently be in place at certain businesses located in member states where robust discovery has not been a central feature of previous litigations.

It is an open question whether member states with less established competition regimes will become more feasible fora for antitrust damages claims after the implementation of the Directive – leading to a loss of business for the courts in the UK, Germany and the Netherlands.  The implications of Brexit in the UK also may impact the UK’s leading role in the private damages regime. It remains to be seen if claimants will continue to engage in forum shopping once all member states have enacted the Directive’s minimum requirements. Corporate law departments are advised to follow the differing provisions proposed by some member states and track how national laws on private damages claims are transitioning as a result of the implementation of the Directive.

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