Bird & Bird (Belgium)

Our firm secured a landmark victory for our client Musaat, in a case that is notable for being one of the first antitrust private enforcement actions in Spain, as well as one of the largest awards of antitrust damages to an individual company in the country.

Our cross-border team was led by partner Antonio Cueto in Madrid and assisted by partner José Rivas in Brussels, a great example of how our cross-border expertise benefits our clients.

At the time of the Spanish construction boom, it became compulsory under Spanish law for developers to purchase an insurance policy to guarantee any construction defects for the first 10 years. Musaat, an insurance provider for the construction industry, launched an insurance product which was on average 24% cheaper than three other insurance providers - Caser, Scor and Asefa. These companies then formed a cartel and boycotted Musaat and forced its reinsurer to withdraw its reinsurance. Musaat found an alternative reinsurer which was more expensive, resulting in a considerable loss of turnover and market share for our client.

In 2009, the Spanish Competition Authority imposed a large fine on Caser, Scor and Asefa for their participation in this price fixing cartel, but the companies retaliated and organised a boycott against Musaat.

The case went on for many years with numerous appeals from Caser, Scor and Asefa. In 2015, following two persuasive requests by our lawyers, the European Commission submitted, for the first time in Spain, observations on the case before the Spanish Supreme Court.

Finally, on 23 September 2020, the Spanish Supreme Court dismissed the appeals and condemned the three companies for boycott and acts of retaliation against Musaat. The judgment is now final.

This stands out as the first (and so far only) case where the European Commission has intervened by offering observations in judicial proceedings in Spain.

Antonio Cueto said of the case: “This case sets a very important precedent in Spain in the field of claims for damages in connection to antitrust infringements."

José Rivas said: “The intervention of the European Commission before the Spanish Supreme Court illustrates what collaboration between our firm’s Madrid and Brussels lawyers can achieve.”

Innovation in the Payments industry has transformed the consumer relationship for our clients in the Banking and Finance sectors, and the convenience of Open Banking is now key to helping build and maintain their strong client relationships.

To help our client, a leading global financial institution, benefit from this transformation, we advised them on regulatory aspects related to setting up an Open Banking platform. The platform will ultimately connect banks to third-party providers, such as services that allow consumers to make online payments without the need for credit or debit card details.

The project is a great example of how our cross-practice expertise benefits our clients, as it required coordinated advice from several practice groups at our firm, spanning: Financial Services Regulatory, Data Protection, Cybersecurity, Competition Law, Contractual/Commercial Issues, M&A, InsurTech, and IP. We were able to advise across the full range of countries in Europe and Asia in which the client has offices.

This platform will transform the way our client interacts with their consumers, using it to seamlessly connect third-party providers to banks across the jurisdictions in which they operate. Our team in the UK (led by co-Head of Payments Group, Trystan Tether) and in Brussels (led by co-Head of Payments Group, Scott McInnes) made this possible, advising on the customer-facing documentation for the provision of their proprietary platform for opening banking.

As with much of the work in the Payments industry, our project was complicated by the fact that regulatory requirements in each of the jurisdictions are not necessarily aligned. Plus, the continued innovation in Payments technology and the growing use of digital currency and Non- Fungible Tokens (NFTs) has resulted in scenarios in which regulatory bodies are not always able to keep up with the advancements and opportunities for clients and consumers. This scenario puts us in a unique position to advise our clients, as our advice not only accommodates evolving technology, but also takes into account an uncertain regulatory landscape.

Scott McInnes commented: “This case was exciting as the evolving Payments regulatory landscape meant our advice to the client had to provide them with the tools to make the best commercial decisions, but also the flexibility to safeguard them against future legislation”.

Our International Projects & Procurement Group recently delivered two priority procurements underpinning Iceland’s transformational, multi-billion Euro Borgarlínan project, a proposed new green Bus Rapid Transit (BRT) system in and around Reykjavík.

Major infrastructure projects make a profound difference to peoples’ lives, but they’re never easy to set up, and working in Iceland is no different. Our lawyers, led by partner Stuart Cairns, worked tirelessly to lead a multi-disciplinary, multi-stakeholder team to ensure that this flagship project will deliver the social, economic and environmental benefits that would be expected of something of this size, solving the complex challenges presented by the island’s unique context. Plus, the team was working in a jurisdiction that had only relatively recently implemented European procurement law around utilities. Indeed, one could argue that our lawyers have changed the face of procurement in Iceland – taking it from largely cost only tendering to collaborative, qualitative tendering and in turn, delivering better value for the island.

This project has laid the foundations needed to successfully implement a world-leading transformational infrastructure project in Iceland, securing internationally renowned expertise to provide design advice and ultimately deliver the “greenest” transport project on the planet. Having started the procurement so successfully, and secured interest from some of the finest advisors in the global transport sector, the second procurement for a design team was brought forward so that the two procurements ended up being run largely in parallel. This not only added a level of additional complexity but ensured that our client benefitted ever-more from our skills as legal project managers, as we ensured that two intensive projects could run largely at the same time with largely the same team. The planning and co-ordination needed to make this possible was significant.

It has helped to truly establish our firm’s International Projects & Procurement Group as a go-to partner for our clients’ major projects, in markets across Europe and beyond. In fact, we are now advising on the four largest procurement projects in Iceland.

"Stuart Cairns and the Bird & Bird team have been working collaboratively with our wider team from the very outset of the Borgalina Project. They are pragmatic, solutions focused advisors that seek to anticipate problems, provide solutions and simplify the complex. Their support on this important project has been invaluable.” - Hrafnkell Ásólfur Proppé, Icelandic Road and Coastal Administration