Bulletin

Anticompetitive practices

Margin squeeze: Recent developments in EU and national case law
E.CA Economics (Brussels)
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E.CA Economics (Berlin)
Dominant undertakings, which are active in upstream and downstream markets, can squeeze margins of their downstream competitors by setting a relatively high price upstream (the input costs of their downstream competitors) and a relatively low price downstream. As margin squeeze can lead to (...)

Dominance in the IT sector: An overview of EU and national case law
Dentons (Brussels)
A significant number of the Commission’s most prominent Article 102 landmark cases have targeted high tech companies – beginning with IBM in the 1980’s on down through Microsoft, Intel and now Google. National competition authorities are similarly focused on this area, most notably the German (...)

Legal Privilege: An overview of EU and national case law
European Company Lawyers Association (ECLA)
The concept of privilege is the right of an individual to preserve the confidentiality of legal communications, it is a fundamental human right long recognised by common law and depending upon the territory in civil law systems. The rationale is that a client should be able to consult a lawyer (...)

The EU Commission carries out unannounced inspections concerning distribution of sports media rights and other related rights
DG COMP (Brussels)
Antitrust: Commission confirms unannounced inspections concerning distribution of sports media rights and other related rights* The European Commission can confirm that on 10 April 2018 its officials carried out unannounced inspections in several Member States at the premises of companies (...)

The EU Commission fines 8 Japanese producers of capacitors involved in a cartel for the supply of aluminium and tantalum electrolytic capacitors (Elna / Hitachi / Holy Stone / Matsuo / NEC Tokin / Nichicon / Nippon Chemi-Con / Ruycom / Sanyo)
Van Bael & Bellis (Brussels)
On 21 March 2018, the European Commission announced that it had adopted a decision fining eight Japanese producers of capacitors a total of € 253,935,000. The companies addressed by the decision, namely Elna, Hitachi, Holy Stone, Matsuo, NEC Tokin, Nichicon, Nippon Chemi-Con, Ruycom and Sanyo, (...)

The EU Commission fines eight producers of capacitors for cartel (Elna / Hitachi Chemical / Holy Stone / Matsuo / NEC Tokin / Nichicon / Nippon Chemi-Con / Rubycon)
DG COMP (Brussels)
Antitrust: Commission fines eight producers of capacitors €254 million for participating in cartel* The European Commission has fined Elna, Hitachi Chemical, Holy Stone, Matsuo, NEC Tokin, Nichicon, Nippon Chemi-Con, Rubycon € 253 935 000. Together with the immunity applicant, Sanyo, they (...)

The Australian Competition and Consumer Commission announces product safety priorities for 2018
Jones Day (Houston)
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Jones Day (Sydney)
The Australian Competition and Consumer Commission (ACCC) has announced product safety priorities for 2018. A key priority is for the Commission to work towards the introduction of a General Safety provision within the Australian Consumer Law (ACL). A recent review by the ACL found that it (...)

The French Competition Authority fines an undertaking for implementing anticompetitive agreements in the tobacconist security provision sector (Sécurité Vol Feu)
French Competition Authority (Paris)
Anticompetitive agreements in the tobacconist security provision sector in the Isère département* The Autorité de la concurrence fines the Sécurité Vol Feu company Following an investigation carried out by the General Directorate for Competition Policy, Consumer Affairs and Fraud Control (...)

The Romanian Competition Authority implements a big data information system that will allow a quicker identification of cartel
Romanian Competition Council (Bucharest)
The Competition Council implements a big data informatics system through the project* “Optimizing the interaction with the business environment and the implementation of advanced data analysis and data exchange mechanisms by implementing an e-government information system and Big Data analysis (...)

The French Competition Authority closes its investigation against agricultural tractor manufacturers after ensuring that they change their commercial practices in respect of dealers in order to strengthen competition and diversify supply (John Deere / AGCO)
French Competition Authority (Paris)
Sale of agricultural tractors* The Autorité closes the investigation against agricultural tractor manufacturers John Deere and AGCO (Massey Ferguson, Fendt, Laverda and Valtra). It has ensured that the manufacturers change their commercial practices in respect of dealers in order to (...)

The UK Competition Authority fines two suppliers of charcoal and coal for households for market sharing (CPL / Fuel Express)
UK Competition and Markets Authority (CMA) (London)
£3.4m fine for household coal and BBQ supplier cartel* Two of the biggest suppliers of charcoal and coal for households in the UK have agreed to pay a £3.4m fine for taking part in a market sharing cartel. CPL and Fuel Express are 2 of the main suppliers of bagged household fuels, including (...)

The Belgian Competition Authority and the French Competition Authority conduct inspections at distributors of cosmetic goods
Belgian Competition Authority (Brussels)
The Belgian Competition Authority confirms the inspections at distributors of cosmetic goods* The Investigation and Prosecution Service of the Belgian Competition Authority (BCA) confirms that the BCA and the “Autorité de la concurrence” (France) conducted inspections at the premises of (...)

The Danish Competition Authority fines an association of passenger carriers for bid rigging (ØFP)
Danish Competition and Consumer Authority (Copenhagen)
The Danish Competition Council finds that a decision by an association of passenger carriers on coordinating the association’s bids is illegal* On February 28, 2018, The Danish Competition Council (DCC) has found that, the association of passenger carriers Økonomisk Forening for Persontransport (...)

The German Competition Authority allows a company to launch an online trading platform for steel products (Klöckner)
German Competition Authority (Bonn)
Klöckner allowed to launch digital platform for steel products* The Bundeskartellamt has no objections to plans by Klöckner & Co SE, Duisburg to set up the business to business online trading platform "XOM Metals" for the sale of steel products. After talks with the Bundeskartellamt, (...)

The Düsseldorf Higher Regional Court increases the fine against a drugstore company for vertical price fixing (Rossmann)
German Competition Authority (Bonn)
Vertical price fixing - Düsseldorf Higher Regional Court raises fine against drugstore chain Rossmann* Yesterday the Düsseldorf Higher Regional Court imposed a fine of 30 million euros against Dirk Rossmann GmbH (’Rossmann’). With its decision the Court has significantly raised the fine imposed by (...)

The EU Commission fines two maritime car carriers and four car parts suppliers EUR 546 million in three separate cartel settlements (MOL / NYK / "K" Line / Wwl-Eukor / Csav, Denso / Bosch / NGK / TRW / Continental)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
Four maritime car carriers, two suppliers of spark plugs and two suppliers of braking systems have been fined EUR 395 million, EUR 76 million and EUR 75 million respectively, in the framework of three separate cartel settlement decisions adopted by the European Commission. With regard to the (...)

The EU Commission fines maritime car carriers and car parts suppliers in three separate cartel cases (MOL / NYK / "K" Line / Wwl-Eukor / Csav, Denso / Bosch / NGK / TRW / Continental)
DG COMP (Brussels)
Antitrust: Commission fines maritime car carriers and car parts suppliers a total of €546 million in three separate cartel settlements* In three separate decisions, the European Commission has fined four maritime car carriers €395 million, two suppliers of spark plugs €76 million, and two (...)

The Mexican Federal Economic Competition Commission’s fines five condom and catheter suppliers for bid rigging in the public health sector after a four-year investigation into the latex industry (Galeno / Adex / Holiday de México / Trenkes / Dentilab)
Agon (Mexico)
On 8 February 2018, Mexico’s Federal Economic Competition Commission’s (COFECE or Commission) fined five condom and catheter suppliers 112 million pesos (approximately €4.91 million) for rigging bids in Mexico’s public health sector. Further statements of objections and decisions regarding bid (...)

The Spanish Supreme Court voids an exclusive-supply agreement in the energy sector that was previously subject to a commitments decision by the EU Commission (Repsol)
Van Bael & Bellis (Brussels)
Spain’s Supreme Court has voided a contract including an exclusive-supply clause in favour of Repsol, following a judgment of the Court of Justice of the European Union (“ECJ”) in which the ECJ confirmed that national courts are not precluded from assessing potentially anti-competitive agreements (...)

The Tenth Administrative Court of Ankara annuls the decision of the Turkish Competition Authority in a case regarding concerted practices between cement producers on the ground that the required standard of proof was not met (GOLTAS Cement)
ACTECON (Istanbul)
The Turkish Competition Authority (“TCA”) had found that six cement producers operating in the Aegean Region of Turkey entered into a concerted practice to allocate certain geographical regions amongst themselves and to collectively raise the prices of cement products during the time period (...)

The German Competition Authority launches a sector inquiry into market conditions in the online advertising sector
German Competition Authority (Bonn)
Bundeskartellamt launches sector inquiry into market conditions in online advertising sector* The Bundeskartellamt has launched a sector inquiry into the online advertising sector. Andreas Mundt, President of the Bundeskartellamt: "Online advertising has experienced an extraordinarily high (...)

The City Court of Copenhagen fines a real estate chain and an association of real estate agents for unlawful boycott (EDC-Gruppen / Danish Association of Chartered Estate Agents)
Danish Competition and Consumer Authority (Copenhagen)
Denmark: Real estate chain and the Danish Association of Chartered Estate Agents sentenced to fines for unlawful boycott* On January 30, 2018, the City Court of Copenhagen passed sentence upon the real estate chain EDC-Gruppen A/S and the Danish Association of Chartered Estate Agents for (...)

The EU Commission publishes a report on the implementation of collective redress mechanisms in EU Member States
Van Bael & Bellis (Brussels)
On 26 January 2018, the European Commission (the “Commission”) published a report on the implementation of collective redress mechanisms in EU Member States (the “Report”). The Report is the Commission’s opportunity to comprehensively review the implementation of its 2013 Recommendation on common (...)

Private Enforcement: An overview of the leading cases and opinions
Hausfeld (Washington)
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Hausfeld (Berlin)
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Hausfeld (London)
Private enforcement in Europe may have taken off later than in the US, but is also flourishing. In particular, 2017 saw the implementation across much of the European Union of the “Damages Directive”, which aims to standardize both substantive and procedural provisions relating to competition law (...)

The Romanian Competition Authority fines a chamber of notaries for cartel (Chamber of Public Notaries)
Romanian Competition Council (Bucharest)
The Competition Council sanctioned with fines of lei 2.8 million the public notaries from Suceava and Botosani* The Competition Council sanctioned the Chamber of Public Notaries from Suceava and 72 public notaries from Suceava and Botosani counties, members of this organization with fine (...)

The German Federal Court of Justice rules on action by automotive repair workshop claiming right to be admitted to authorised repair network (Jaguar)
Van Bael & Bellis (Brussels)
On 23 January 2018, the German Federal Court of Justice ruled on an action brought by a car repair shop (the claimant) against the general importer of Jaguar and Land Rover vehicles (the defendant). The importer operated a selective distribution system for the servicing of its vehicles. (...)

The EU Court of Justice rules that the dissemination of misleading information is a restriction by object and excludes exemption under Article 101 §3 TFEU (Roche / Novartis)
Simmons & Simmons (Paris)
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Simmons & Simmons (Paris)
On 23 January 2018, the Court of Justice of the European Union delivered its decision on the preliminary ruling referred to it by the Italian Council of State in the dispute between Roche and Novartis on the one hand and the Italian competition authority (AGCM) on the other. In 2014, Roche and (...)

The Romanian Competition Authority fines six companies for bid-rigging in the market of electricity consumption equipment (ECRO)
Romanian Competition Council (Bucharest)
The Competition Council applied fines of 73 millioan lei to 6 companies for the bid-rigging in the field of electricity comsumption equipment* The Competition Council sanctioned with fines totaling 73,100,870.37 lei (about € 15.8 million) six companies for the conclusion of two anticompetitive (...)

The US Court of Appeals for the Third Circuit issues a decision holding that purchasers have standing to seek damages from suppliers accused of price-fixing (Processed Egg Products)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
Last week, in In re: Processed Egg Products Antitrust Litigation, the U.S. Court of Appeals for the Third Circuit issued a decision holding that purchasers of processed egg products have standing to seek damages from egg suppliers accused of price-fixing in violation of Section 1 of the Sherman (...)

The Romanian Competition Authority fines companies selling equipment for electricity measurement for cartel (ARC BRAŞOV)
Romanian Competition Council (Bucharest)
1) The Competition Council sanctioned with €1.1 million 3 companies selling equipment for electricity measurement* The Competition Council sanctioned with fines totalling lei 4,947,086.23 (about Euros 1.1 million) three companies for the purpose of reaching an agreement in order to limit the (...)

Unilateral Practices

The EU Commission opens a formal investigation into German grid operator for limiting cross border electricity capacity with Denmark (TenneT)
DG COMP (Brussels)
Antitrust: Commission opens investigation into German grid operator TenneT for limiting cross border electricity capacity with Denmark* The European Commission has opened a formal investigation to assess whether German grid operator TenneT’s limitation of capacity from Western Denmark into (...)

The French Competition Authority issues an opinion concluding its sector-specific investigation into online advertising
French Competition Authority (Paris)
Sector-specific investigation into online advertising* The Autorité de la concurrence has made public its opinion in which it analyses a very complex market characterised by a fragile competitive equilibrium. Given the concerns of stakeholders in the sector, the General Rapporteur announced (...)

The Moldovan Supreme Court of Justice quashes the infringement decision of the Moldovan Competition Authority concerning refusal to deal in the airport services market (Avia Invest)
Faculty of Law - University of Macau
On 21 February 2018, the Supreme Court of Justice (SCJ) of the Republic of Moldova has quashed the decision issued by the Competition Council (CC) in a case concerning the alleged refusal to deal on the market for lease of commercial premises at the Chisinau International Airport (KIV). SRL (...)

The Moldovan Competition Authority finds a state-initiated restraint of competition on the part of the state-owned enterprise entrusted with the management of the official publications (Moldpres)
Faculty of Law - University of Macau
On 1 February 2018 the Competition Council of the Republic of Moldova (CC) found that the state-owned enterprise (SOE) entrusted with the management of the official publications has applied discriminatory tariffs for its publishing services in violation of competition law prohibiting (...)

The Danish Competition Authority fines a pharmaceutical company for abuse of dominance by charging unfair prices (CD Pharma)
Danish Competition and Consumer Authority (Copenhagen)
CD Pharma has abused its dominant position by increasing their price by 2,000 percent* On 31 January 2018, the Danish Competition Council (“DCC”) ruled in a case concerning CD Pharma’s (a pharmaceutical distributor) abuse of dominant position by charging unfair prices for the drug Syntocinon. (...)

The Cairo Economic Court upholds the recommendation of the Egyptian Competition Agency and fines a TV broadcasting company 400M EGP for abusive bundling of international football events (Nasser Al-Khulaifi / beIN Media)
Fingleton Associates (London)
On 29th January 2018 the Cairo Economic Court found that beIN had abused its position in the market for broadcasting of international football events by forcing the bundled subscription of all the soccer leagues and events in its stable for a minimum duration of 12 months. The decision by the (...)

The EU Commission fines a company for abuse of dominance on the market for baseband chipsets for smartphones and tablets (Qualcomm)
Van Bael & Bellis (Brussels)
On 24 January 2018, the European Commission (the “Commission”) announced that it had imposed fines totalling € 997.439 million on chipset producer Qualcomm for abusing a dominant position contrary to Article 102 TFEU. While the public version of the decision has not yet been published, the (...)

The German Supreme Court issues landmark ruling on unfair trading practices (EDEKA)
Jones Day (Frankfurt)
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Jones Day (Brussels)
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Jones Day (Frankfurt)
The Situation: Market-dominant and powerful companies in Germany are subject to a number of rules that are significantly broader and stricter than the European Union’s, Article 102 AEUV, which prohibits the abuse of a dominant position. The Development: A recent decision by the German Supreme (...)

The German Federal Court of Justice issues a landmark decision addressing the issue of “Wedding Rebates” demanded by undertakings with relative market power (EDEKA)
University of Kiel
The German Federal Court of Justice (BGH) had to assess the outcome of price negotiations between a powerful German food retailer (Edeka) and some of its suppliers. Edeka had just taken over a no-frills competitor (“Plus”) with more than 2000 outlets and was in the process of rebranding these (...)

Mergers

The Belgian Competition Authority clears the acquisition of a Belgian football club by an investment company (Royal Sporting Club Anderlecht / Alychlo)
Belgian Competition Authority (Brussels)
The Belgian Competition Authority approves the acquisition of Royal Sporting Club Anderlecht by Alychlo* The Investigation and Prosecution Service of the Belgian Competition Authority (BCA) has approved on 28 March 2018 the acquisition of Royal Sporting Club Anderlecht by Alychlo. The (...)

The German Competition Authority clears a merger subject to remedies in the rail sector (CIT Rail / VTG Rail Assets)
German Competition Authority (Bonn)
Rail wagon leasing companies may merge subject to condition precedent* The Bundeskartellamt has cleared the acquisition of CIT Rail Holdings (Europe) S.A.S. by VTG Rail Assets GmbH subject to a condition precedent. The companies may only implement the merger once they have sold a substantial (...)

The EU Commission considers potential harm to innovation as part of its merger assessments, particularly in R&D driven sectors such as pharmaceuticals and technology (Bayer / Monsanto)
Shearman & Sterling (Brussels)
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Shearman & Sterling (Brussels)
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Shearman & Sterling (London)
The European Commission has routinely considered potential harm to innovation as part of its merger assessments, particularly in R&D driven sectors such as pharmaceuticals and technology. In recent years, however, the Commission’s traditional innovation concerns have developed into broader, (...)

The EU Commission clears a merger, subject to remedies, in the seeds, pesticides and digital agriculture sector (Bayer / Monsanto)
DG COMP (Brussels)
Mergers: Commission clears Bayer’s acquisition of Monsanto, subject to conditions* The European Commission has approved under the EU Merger Regulation the acquisition of Monsanto by Bayer. The merger is conditional on the divestiture of an extensive remedy package, which addresses the parties’ (...)

The German Competition Authority announces the abandonment of a planned merger in horticultural supply sector (RWZ / Landgard)
German Competition Authority (Bonn)
RWZ and Landgard withdraw planned merger in horticultural supply sector after concerns expressed by the Bundeskartellamt* Raiffeisen Waren-Zentrale Rhein-Main eG ("RWZ") and Landgard Blumen & Pflanzen GmbH & Co. KG ("Landgard") have abandoned their plans to set up a joint venture under (...)

The EU Commission conditionally approves a proposed merger in the providers of pay-TV channels market (Scripps / Discovery)
Van Bael & Bellis (Brussels)
On 6 February 2018, the European Commission conditionally approved the proposed acquisition of Scripps by Discovery. Both Discovery and Scripps are active primarily as providers of pay-TV channels to TV distributors in Europe. The Commission was concerned that the deal risked increasing (...)

The EU Commission decides to review a merger in the market of music recognition applications for smartphones (Apple / Shazam)
DG COMP (Brussels)
Mergers: Commission to assess the acquisition of Shazam by Apple* The European Commission has accepted a request from Austria, France, Iceland, Italy, Norway, Spain and Sweden to assess under the EU Merger Regulation the proposed acquisition of Shazam by Apple. The Commission considers the (...)

The EU Commission clears a merger subject to remedies in the global media market and rejects a referral request by the Polish Competition Authority (Discovery / Scripps)
DG COMP (Brussels)
Mergers: Commission approves Discovery’s acquisition of Scripps, subject to conditions; rejects referral request by Polish competition authority* The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of Scripps by Discovery, both US based global media (...)

The French Competition Authority unconditionally clears a merger between two real estate online platforms in Phase II (Logic-Immo.com / SeLoger.com)
DLA Piper (Paris)
On 1st February 2018, the French Competition Authority (“FCA”) unconditionally cleared in Phase II proceedings the planned acquisition of sole control of French company Concept Multimédia - which owns the real estate online platform Logic-Immo.com - by German group Axel Springer - which owns the (...)

The Belgian Competition Authority clears a merger subject to remedies in the market of garages for maintenance and repairs of trucks (Kant / Volvo)
Belgian Competition Authority (Brussels)
The Competition College of the BCA authorises conditionally the acquisition of garages of the group Kant by Volvo Group Belgium* The Competition College of the Belgian Competition Authority (BCA) has authorised on 31 January 2018 the acquisition of garages of Kant NV by Volvo Group Belgium NV. (...)

The US Federal Trade Commission increases notification thresholds under the Hart-Scott-Rodino Act and Clayton Act Section 8
McDermott Will & Emery (Washington)
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McDermott Will & Emery (Washington)
The US Federal Trade Commission (FTC) announced revised thresholds for Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) pre-merger notifications on January 26, 2018. These increased thresholds will become effective in late February or early March. These new thresholds apply to any (...)

The US Federal Trade Commission announces the annual changes to the Hart-Scott-Rodino Act notification thresholds
White & Case (Washington)
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White & Case (Washington)
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White & Case (Washington)
On January 26, 2018, the Federal Trade Commission (FTC) announced the annual changes to the Hart-Scott-Rodino (HSR) Act notification thresholds. The FTC is required by law to revise the jurisdictional thresholds annually, based on the change in gross national product. Accordingly, the 2018 (...)

The EU Commission refers back a merger to the Polish Competition Authority in the pork meat sector (Pini Polonia / Smithfield)
DG COMP (Brussels)
Mergers: Commission refers the acquisition of Pini Polonia by Smithfield to the Polish competition authority* The European Commission has referred the proposed transaction between Smithfield Foods of the US and Pini Polonia of Poland to the Polish Office of Competition and Consumer Protection (...)

The Antimonopoly Committee of Ukraine issues an explanatory note after the adoption of the Law of Ukraine which improved control over mergers in terms of sanctions-related transactions
Marchenko Danevych (Kiev)
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Marchenko Danevych (Kiev)
With the armed conflict lasting on the Ukrainian territory, economic and business interests are in need of protection as never before. One of the measures recently taken in this regard was to ensure that neither individuals, nor undertakings, placed under conflict-related sanctions, are able to (...)

State Aid

The EU General Court annuls a decision of the Commission that found no State aid because it considered the recipient of the measure was not an undertaking (Dôvera zdravotná poist’ovňa)
Arendt & Medernach (Luxembourg)
Application of State aid and competition law rules to the health sector reinforced by the General Court* The General Court has annulled a decision of the EU Commission finding no state aid because the recipient of the measure, a Slovak health insurance body was not an undertaking. According (...)

The EU General Court upholds a Commission’s decision ordering the recovery of an illegal State aid (Brussels South Charleroi Airport)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
The General Court of the EU has dismissed the appeal filed by Brussels South Charleroi Airport (“BSCA”) against a 2014 Commission decision whereby Belgium was ordered to recover illegal State aid granted to BSCA. In its decision, the Commission found that a series of measures adopted by the (...)

Procedures

The EU General Court upholds the decision of the Commission refusing to disclose the table of contents of its investigation file in a cartel case (EURIBOR cartel)
Van Bael & Bellis (Brussels)
On 5 February 2018, the EU General Court (“GC” or “Court”) dismissed the appeal lodged by Edeka, a German supermarket chain, against the decision of the European Commission refusing to disclose the table of contents of its investigation file in the EURIBOR cartel (see VBB on Competition Law, Volume (...)

The EU Court of Justice delivers four judgments dismissing the appeals brought by participants involved in a cartel (Air freight cartel)
Van Bael & Bellis (Brussels)
By way of background, in 2012, the European Commission adopted a decision in which it found that a number of undertakings had fixed pricing mechanisms and surcharges for a variety of freight forwarding services, which the Commission considered to amount to four distinct infringements of the EU (...)

The Italian Supreme Court upholds the class action ruling of the Court of Appeal of Milan on misleading advertising (Voden)
Jones Day (Milano)
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Jones Day (Munich)
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Jones Day (Paris)
The Situation: On January 31, 2018, the Italian Supreme Court ruled on the first Italian product-related class action promoted by a consumers’ association. The Result: The Court upheld the consumer’s class action claim regarding the unlawful advertising of a medical device. Looking Ahead: The (...)

Regulatory

The Finnish Competition Authority issues its report on health service marketing
Finnish Competition and Consumer Authority (Helsinki)
FCCA report: Health service marketing promotes competition and customers’ freedom of choice* The FCCA has been studying how health service marketing is currently regulated and what kinds of challenges the health and social services reform is setting for health service marketing. Health service (...)

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