February 2009

Anticompetitive practices

The Australian Parliament amends its antitrust legislation to introduce criminal sanctions against cartel offenses (Trade Practices Amendement Act 2009)
Jones Day (Sydney)
,
Jones Day (Sydney)
Two more jurisdictions, Australia and South Africa, may now join the growing number of countries that impose criminal penalties for antitrust violations. The legislatures in both countries recently introduced legislation that amends their competition law statutes to criminalize cartel offenses. (...)

The Italian Competition Authority inflicts a fines over € 12 M upon the main 26 producers of pasta and two associations of undertakings, for allegedly exchanging information and adopting other initiatives to increase prices (Listino prezzi della pasta)
Ashurst
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Legance - Studio Legale Associato
,
Legance - Studio Legale Associato
Background On 26 February 2009, the Italian Competition Authority (“ICA”) fined 26 pasta producers active in Italy (representing approximately 90% of the overall relevant market) and two associations of undertakings claiming that they had entered into an agreement aimed at increasing the prices (...)

The Italian competition authority fines 26 pasta makers and two industry associations for coordinating selling prices of pasta to retailers (Listino prezzi della pasta)
Desogus Law Office (Cagliari)
In the Pricing of Pasta case, by a decision likely to spark much controversy, the Italian Competition Authority (ICA) has condemned for price-fixing practices 26 pasta makers, accounting for almost 90% of the market. The ICA also fined two industry associations, Unipi (the Italian Pasta (...)

The Italian Competition Authority sanctions a cartel of 26 pasta producers and professional associations on the basis of Art. 81.1 EC (Listino prezzi della pasta)
On 25 February 2009 the Authority ascertained two price-fixing cartels in the Italian market of durum semolina pasta and fined 26 pasta producers (Amato, Barilla, Colussi, De Cecco, Divella, Garofalo, Nestlé, Rummo, Zara, Berruto, Delverde, Granoro, Riscossa, Tandoi, Cellino, Chirico, De (...)

The Paris Court of Appeal dismisses appeals brought by companies involved in a price fixing and market sharing cartel (Le Club)
Van Bael & Bellis (Brussels)
On 25 February 2009, the Paris Court of Appeal dismissed appeals brought against a decision of the French Competition Council of 18 December 2007 in which it imposed fines totalling more than € 2 million on twelve removal companies for their involvement in a price-fixing and market sharing (...)

The Turkish Competition Board requests a car manufacturer to amend the non-qualitative criterion of its authorized service agreement and the use of equipment so as to prevent discrimination between existing and new authorized providers (Renault Trucks Turkiye Ticaret)
Derman Düren Akol
,
European Bank for Reconstruction and Development
,
Çiğdemtekin Dora Aranci Law Firm
The Turkish Competition Board evaluates the authorized service agreement and the practices of the manufacturer Renault Trucks Turkiye Ticaret A.S. under (i) Article 3, 5, 6 of the Block Exemption Communiqué n° 2005/4 on Vertical Agreements and Concerted Practices in the Motor Vehicle Sector with (...)

The Czech Supreme Administrative Court takes a liberal approach towards information exchange agreements (Building savings banks)
Weil, Gotshal & Manges (Prague)
On 25 February 2009, the Supreme Administrative Court rejected cassation appeal of the Czech Office for Protection of Competition (the “Office”) against the judgment of the Regional Court in Brno which struck down Office’s decision imposing fines on six building savings banks for allegedly (...)

The Finnish Market Court fines motor vehicle spare parts cartel (Osaset)
Van Bael & Bellis (Brussels)
In a judgment issued on 20 February 2009, the Finnish Market Court confirmed the Finnish Competition Authority’s (“FCA”) finding of a cartel affecting the market for distribution of motor vehicle spare parts in Finland. The Court found that five companies active in the wholesale of motor vehicle (...)

The ECJ Advocate General Kokott gives opinion on standard of proof with regard to anti-competitive concerted practices (T-Mobile Netherlands)
Van Bael & Bellis (Brussels)
On 19 February 2009, Advocate General Kokott delivered her opinion in relation to a preliminary reference from a Dutch court regarding the requirements that must be satisfied to establish an anti-competitive concerted practice for the purposes of Article 81(1) EC. The case before the Dutch (...)

The Japan Fair Trade Commission issues cease and desist orders and imposes surcharges on six manufacturers and sellers of vinyl chloride pipes and joints for price-fixing (Sekisui Chemical, Mitsubishi Plastics, Kubota-C.I.)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Orders and Surcharge Payment Orders against Manufacturers and Sellers of Vinyl Chloride Pipes and Joints* The Japan Fair Trade Commission (JFTC), in accordance with the provisions of the Antimonopoly Act (AMA), investigated the manufacturers and sellers of vinyl chloride pipes (...)

The Paris Court of Appeal suspends decision concerning prohibition of Internet sales in selective distribution (Pierre Fabre)
Van Bael & Bellis
On 18 February 2009, the President of the Paris Court of Appeal partially suspended the decision of the French Competition Council against a manufacturer of cosmetics, Pierre Fabre Dermo-Cosmétique (“Pierre Fabre”). In its decision of 29 October 2008, the Competition Council found that Pierre (...)

A Danish court imposes fines on a professional association and the hightest fine ever to a person for recommending retail prices (Christmas Tree Growers Association)
Danish Competition and Consumer Authority (Copenhagen)
On 17 February 2009, a Danish Court found that the Danish Christmas Tree Growers Association and its director had infringed Article 6 of the Danish Competition Act (national provision similar to Article 81 of the EC Treaty) by having issued price recommendations to its members. The Court (...)

The Turkish Competition Authority’s member of the board expresses dissenting opinion in relation to the legality of the fines imposed according to the newly adopted fining regulations
Stories on the Fining Regulation (1): Can Anyone Spot The Difference?* The story begins in January 2008 by the amendments made to the Competition Act. These amendments mainly contain the inclusion of the leniency and the possibility of imposition of fines on individuals. Apart from that, the (...)

The French Competition Authority fines several professional associations of dental surgeons for practices of boycott (Conseil national de l’Ordre des chirurgiens-dentistes)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence fines the National Board of the French Dental Surgeons Association (Conseil national de l’Ordre des chirurgiens-dentistes) and several of its regional boards for encouraging dental (...)

The German Federal Court of Justice confirms the approach taken by the Federal Cartel Office regarding long-term gas supply agreements (Gaslieferverträge)
Hengeler Mueller (Dusseldorf)
I. Background The practice of long term gas supply agreements with purchase obligations of more than 80% within the German gas sector has been discussed and questioned over a long period of time, in particular in respect to a infringement of competition law. In 2006, the German Federal Cartel (...)

The European Commission holds rountable with stakeholders concerning the future of the motor vehicle block exemption regulation
Van Bael & Bellis
On 9 February 2009, European Competition Commissioner Neelie Kroes hosted a roundtable on the Motor Vehicle Block Exemption Regulation at which a small group of industry leaders were invited to give their views on the future block exemption regime. There has been a delay in the timetable (...)

The Spanish Competition Authority fines an association of Architects for preventing architects registered on its lists of judicial experts from registering on third parties’ lists (Valencia Architects’ Association)
Cuatrecasas, Gonçalves Pereira
,
Cuatrecasas, Goncalves Pereira (Madrid)
On February 9, 2009, the Spanish Competition Authority (“SCA”) considered that the Colegio Oficial de Arquitectos de la Comunidad Valenciana (“COACV”), the official Association of Architects of Valencia, infringed Article 1 of the Spanish Competition Act by preventing architects registered on its (...)

A Belgian Court of appeal infers a cartel from a similar approach adopted by several medical oxygen providers boycotting a competitor (AGIM/Oxycure)
Arendt & Medernach (Luxembourg)
,
NautaDutilh (Luxembourg)
Facts of the case 1. Oxycure markets an oxygen concentrator, which generates medical oxygen on the spot and hence constitutes an innovative and a more efficient alternative to medical oxygen distributed in bottles. As the oxygen concentrator works on electricity, Oxycure’s clients need reserve (...)

The French Competition Council finds the incumbent rail operator guilty of implementing discriminatory practices in favor of its online travel subsidiaries and for entering into an anti-competitive partnership (SNCF /Expedia)
Kramer Levin Naftalis & Frankel (Paris)
,
Orrick, Herrington & Sutcliffe (Paris)
I. Facts The French rail operator SNCF enjoys a legal monopoly on passenger rail transport. However, train tickets themselves are sold through three main distribution channels : SNCF’s physical sales points as well as its merchant website operated by its VSC subsidiary (which altogether account (...)

The Paris Court of appeals confirms the NCA’s interim measures preventing exclusive rights regarding the distribution of the iPhone (Apple - Orange - France Télécom)
White & Case (Paris)
,
Reseau de transport d’electricite (RTE)
In a decision dated 4 February 2009, the Paris Court of Appeals confirmed decision n° 08-MC-01 of the French Competition Council concerning practices implemented in the distribution of iPhones. This decision was anxiously awaited by mobile phone operators competing with Orange and which began (...)

The French NCA fines several temping agencies nearly € 100 M, but grants significant reductions for certain parties who enter into innovative commitments (Adecco, Manpower, VediorBis)
Hewlett Packard (Boulogne-Billancourt)
,
Ginestié Magellan Paley-Vincent
On 2 February 2009, the French Competition Council ("the Council") fined several agencies active in the temporary employment sector in France (Adecco, Adia, Manpower and VediorBis - "the Companies") for concerted practices. Context Temping enables businesses desiring more flexibility to use (...)

The South African Parliament amends the Competition Act to introduce criminal sanctions against cartel offenses (Competition Amendment Act 2009)
Jones Day (Sydney)
,
Jones Day (Sydney)
Two more jurisdictions, Australia and South Africa, may now join the growing number of countries that impose criminal penalties for antitrust violations. The legislatures in both countries recently introduced legislation that amends their competition law statutes to criminalize cartel offenses. (...)

The German Federal Court of Justice holds that the prohibition to fix prices regarding contracts with third parties is applicable to the relationship between franchisor and franchisee at least in the event that the franchisee himself bears the economic risk of his franchising business (Preisbindung durch Franchisenehmer)
Linklaters (Dusseldorf)
Description of the impugned case The case deals with indirect RPM in the framework of a franchising system in which the franchisor who operates several own branches, advertises for certain prices without however limiting the indications of prices to his own branches or pointing out their (...)

Unilateral Practices

The Paris Court of appeal reverses a decision of the Commercial Court which ordered the telephone incumbent to suspend the conditioned sale of its football dedicated channel to the subscription to its triple play offer (Orange Foot-France Télécom)
Freshfields Bruckhaus Deringer (Paris)
,
Lni avocats (Paris)
On 14 May 2009, the Paris Court of appeal reversed a decision of the Paris Commercial Court dated 23 February which ordered France Telecom to suspend the conditioned sale of its football dedicated channel “Orange Foot” to the subscription to its triple play offer. The Paris Court of Appeal held (...)

The Japan Fair Trade Authority makes a cease and desist order against a musical copyright company for having excluded management business operators (JASRAC)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Order against Japanese Society for Rights of Authors, Composers and Publishers* The Japan Fair Trade Commission (hereinafter “JFTC”) had investigated Japanese Society for Rights of Authors,Composers and Publishers (hereinafter referred to as “JASRAC”) in accordance with the (...)

The US Supreme Court affirms that when a regulatory structure aiming to deter and remedy anti­-competitive harm prevails, the costs of antitrust enforcement are likely to be greater than the benefits (Pacific Bell Telephone / Linkline Communications)
Sheppard Mullin (Los Angeles)
Supreme Court Restricts “Price-Squeeze” Claims Under Section 2 of the Sherman Act to Situations Where the Defendant has an Antitrust Duty to Deal* In Pacific Bell Telephone Co. v. Linkline Communications Inc., 2009 U.S. Lexis 1635, 555 U.S. ______ (February 25, 2009) ("Linkline"), the U.S. (...)

The US Supreme Court rejects antitrust liability for price-squeeze by integrated dominant firms in the telecommunication industry illustrating deep suspicion about the institutional players in the antitrust system (Pacific Bell / linkLine)
University of Michigan
linkLine’s Institutional Suspicions In this essay, I review the Supreme Court’s most recent monopolization decision—Pacific Bell v. linkLine—with a focus on the suspicions between the various institutions that had a hand in the case. I. The linkLine Decision The linkLine decision continues the (...)

The US Supreme Court overturns the Ninth District Court’s decision adopting a new two-part standard for assessing "price-squeeze" antitrust claims (Pacific Bell/linkLine)
Akin Gump Strauss Hauer & Feld (Washington)
,
Haug Partners (New York)
,
Winston & Strawn (New York)
The Supreme Court recently issued a unanimous decision in a notable "price-squeeze" case under § 2 of the Sherman Act involving rival telecom companies. Pacific Bell Tel. Co. v. Linkline Commc’ns, Inc., No. 07-512 (Feb. 25, 2009). The Court held that a vertically integrated company that had no (...)

The US Supreme Court rejects "Price-Squeezing" theory of liability (Pacific Bell / linkLine)
White & Case (New York)
,
On February 25, 2009, the Supreme Court firmly rejected the so-called "price-squeeze" theory of antitrust liability, under which a vertically integrated firm with monopoly power in an upstream market could be found to violate Section 2 of the Sherman Act by selling the upstream product at so (...)

The US Supreme Court rejects the price squeeze theory, noting that the upstream and downstream claims should be considered separately (Pacific Bell / linkLine)
Allen & Overy (New York)
Introduction In Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc. the U.S. Supreme Court considered whether a vertically integrated firm with market power in a wholesale market that competes with its customer downstream in a retail market was prohibited under Section 2 of the Sherman Act from (...)

The European Commission publishes its guidance paper on exclusionary abuses under Article 82 EC
White & Case (Brussels)
,
White & Case (Brussels)
,
White & Case (London)
I. BACKGROUND The European Commission published the 24th February 2009 a Communication containing its long-awaited Guidance Paper on exclusionary abuses under Article 82 C(Commission Communication – Guidance on the Commission’s Enforcement Priorities in Applying Article 82 EC Treaty to Abusive (...)

The Bulgarian Supreme Administrative Court affirms the decision of the Bulgarian Competition Authority prosecuting incumbent telecom operator for tying its ADSL and fixed voice services (Bulgarian Telecom)
University of Technology (Tallinn)
On 19 February 2009 the Supreme Administrative Court of Bulgaria upheld the decision of the Bulgarian Competition Authority (CPC) that prosecuted the incumbent telecom operator - Bulgarian Telecom (BTC) for abuse of dominant position committed by tying its ADSL Internet and fixed voice (...)

The Spanish Competition Commission fines a beer producer for fixing minimum resale prices to its distributors (Damm Distribuciones)
Cuatrecasas, Gonçalves Pereira
,
Lonza
On 18 February 2009, the Spanish Competition Commission (Comisión Nacional de la Competencia, “CNC”) fined Damm Distribuciones (“Damm”) €525,000 for fixing minimum resale prices to its beer distributors . Background Damm is one of the top three beer producers in Spain, distributing its products (...)

The French Competition Authority accepts commitments in the motorway sector (Autoroutes du Sud de la France)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 16 February 2009, the French Competition Council accepted commitments from several operators of motorway concessions in France (hereinafter referred to as the “motorway network operators”) to resolve concerns that each may have abused their respective dominant positions as regards the granting (...)

The Italian Supreme Court underlines the need for correct market definition in a private enforcement case concerning an alleged abuse of dominant position (Cetel / Enel)
European Court of Justice (Luxembourg)
Introduction In one of the few cases involving antitrust litigation it dealt with so far, the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy’s highest civil court, the “Court”), on 13 February 2009, handed down an important judgement in which it underlined the need for accurate (...)

The Latvian Competition Council approves the settlement on payment terms and non-discriminatory rebates towards retailers proposed by a national press distributor (Preses Serviss)
Competition Council of Latvia
The Competition Council Comes to Agreement with SIA „Preses Serviss"* On 4 February 2009, after receiving of written pledge from the company SIA „Preses Serviss" ("Press Service" - PS) to fulfil its legal obligations preventing from negative impact on competition, caused by its illegal (...)

The Brussels court of appeal confirms a Belgian Competition Council’s decision on an abuse of dominance but annuls the fine for predictability issues (Occasiemarkt - Honda Motor Europe)
Liège University - IEJE
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Liaison agency Flanders-Europe (vleva)
,
Liège University - IEJE
Parties In this case, the Honda Company and some Belgian independent motorcycles dealers appeal a 1999 Belgian competition council decision condemning several Belgian official motorcycles importers’ abuse of dominance. Facts In the early nineties, several independent dealers complained about (...)

Mergers

The Hungarian Competition Authority conditionally clears a concentration in the construction sector (Cemex Austria, Strabag)
Van Bael & Bellis (Brussels)
In March 2009, the Hungarian Competition Authority conditionally cleared the concentration between Cemex Austria and Strabag, requiring the parties to divest a mixing station in a regional market for ready-mixed concrete where the merged entity would have a market share of more than 90%. (...)

The German Federal Cartel Office clears three different mergers involving six of the largest German banks (Deutsche Bank / Deutsche Postbank, Commerzbank / DresdnerBank / (Allianz) and DZ Bank / WGZ Bank)
Blomstein
,
Freshfields Bruckhaus Deringer
Background Against the background of increasing global financial turmoil, three major concentrations involving six large German banks (as well as the largest German insurance company) were submitted to the German Federal Cartel Office (Bundeskartellamt - FCO) for clearance between November (...)

The French Minister of Economy conditionally clears a merger between the principal actors in the meat sector (Groupe Bigard / Socopa Viandes)
Fieldfisher (London)
On the 17th February 2009 the Minister of Economy, Industry and Employment cleared the acquisition of control of the undertaking ‘Socopa Viandes’ by the ‘Groupe Bigard’ attaching Phase I commitments. Groupe Bigard is the French market leader in the meat sector. Its activities involve the (...)

The German Federal Cartel Office clears a merger subject to structural remedies in the sugar regulated and oligopolistic market (Nordzucker/Danisco)
Gleiss Lutz (Munich)
,
Milbank, Tweed, Hadley & McCloy (Munich)
,
Gleiss Lutz (Munich)
On 17 February 2009, the German Federal Cartel Office cleared a merger in the sugar sector subject to conditions and obligations. The case concerned the indirect acquisition of the sugar activities of the Danish company Danisco Sugar A/S by the German sugar refinery Nordzucker AG, an (...)

The Italian Supreme Administrative Court sets aside a judgment confirming fines imposed by the NCA for failure to notify a series of mergers (Lidl)
European Court of Justice (Luxembourg)
Introduction By a judgement of 17 February 2009, the Consiglio di Stato (Italian Supreme Administrative Court, the “Court”) has set aside a judgement of the Regional Administrative Tribunal of Latium (the “TAR Latium”) that confirmed the fine imposed by the Italian Competition Authority (the (...)

The UK OFT clears merger in the environment noise management systems sector on the basis of the de minimis exemption (Spectris plc/Lochard Ltd)
Herbert Smith Freehills (Brussels)
On 29 January 2009, the Office of Fair Trading (the "OFT") announced that it had cleared the acquisition of Lochard Ltd by Spectris plc on the basis of the de minimis exception. This is only the seventh case in which the OFT has used the de minimis exception as grounds for a decision not (...)

The German Parliament introduces new domestic turnover threshold in its merger control law
Linklaters (Dusseldorf)
,
Linklaters (Brussels)
,
Linklaters (Dusseldorf)
On Friday the German legislator approved the " Dritte Mittelstands-Entlastungsgesetz ("MEG III"), which introduces a second domestic turnover threshold of € 5 million. This is expected to reduce significantly the number of transactions that require prior approval by the Federal Cartel Office. (...)

The German FCO fines publishing company € 4.13 M for gun-jumping (DuV)
Van Bael & Bellis (Brussels)
According to a press release of 13 February 2009, the German Federal Cartel Office (FCO) fined German publishing company Druck- und Verlagshaus Frankfurt am Main GmbH (DuV) € 4.13 million for implementing a concentration prior to obtaining clearance (i.e., so-called “gun-jumping”). In 2001, DuV (...)

The German Parliament introduces a new threshold for premerger notification
Jones Day (Frankfurt)
,
Jones Day (Dusseldorf)
,
Jones Day (Frankfurt)
Germany has introduced a new threshold for premerger notifications to its merger control system, effective tomorrow, 25 March 2009. This amendment to the German Act Against Restraints Of Competition (ARC) is expected to reduce the number of merger control filings in Germany dramatically. In (...)

The German Parliament introduces second domestic turnover threshold for merger control (Third Act to Cut-Back Bureaucratic Burdens in Particular in the Small and Medium-sized Economy)
Fried Frank Harris Shriver & Jacobson (London)
On 25 March 2009, a significant change to Germany’s merger jurisdictional thresholds entered into force. The revision exempts many transactions that were previously caught from the obligation to submit a notification to the German Federal Cartel Office (FCO). I. The new second domestic turnover (...)

The Spanish Competition Authority clears its first big merger between the dominant gas supplier and the third largest electricity operator (Gas Natural / Union Fenosa)
Simmons & Simmons (London)
On the 12 February 2009, following an in depth investigation, the Spanish Competition Commission (CNC) cleared its first big merger when it approved, subject to commitments, the merger between Gas Natural (GN), the dominant gas supplier and the Union Fenosa (UF), the third largest electricity (...)

The European Court of First Instance confirms the European Commission’s discretion analysis to suspend a merger under Article 11(3) of the EC merger regulation (Omya, Huber)
"Article 11(3) Decisions – the Commission’s Discretion Analysis of the judgment of the Court of First Instance in case T-145/06 Omya v Commission"* The examination of Omya AG’s (Omya) proposed acquisition of J. M. Huber’s precipitated calcium carbonate business (Huber PCC) was one of the most (...)

The EU Commission conditionally clears a merger in the food retail industry (Rewe / Meinl)
European Commission - DG TRADE
,
European Commission - DG TRADE
"Mergers: Recent developments and important decisions"* In Rewe/Meinl, the Commission had come to the conclusion that the take-over of the fourth largest Austrian foodretail chain by the market leader Rewe/Billa would create a dominant position of the parties on the Austrian food retail market (...)

State Aid

The European Commission adopts a Communication on impaired assets, providing guidance to Member States on how to handle asset relief measures
European Commission - DG COMP (Brussels)
,
Groupe Holder
,
"State aid: main developments between 1 January and 30 April 2009"* In addition to the specific banking communications it has already issued, the Commission adopted on 25 February 2009 a Communication on ‘Impaired assets’. This Communication provides guidance to Member States on how to handle (...)

A German Regional Court rules that an EC Commission decision ordering recovery of an illegal aid measure must first be issued before a German court may deal with a request brought by a competitor ("Ryanair 4")
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Coblence Higher Regional Court of appeal rejects the appeal lodged by Lufthansa against LG Bad Kreuznach’s judgment and rules that the appeal lacks a legal basis. A Commission decision (be it provisional or definitive) ordering the recovery of (...)

The ECJ Advocate General Trstenjak issues his opinion on the burden of proof in relation to recovery illegal State aid decisions (MTU Friedrichshafen)
Van Bael & Bellis (Brussels)
In an opinion handed down on 19 February 2009, Advocate General Trstenjak proposes that the Commission’s appeal against a judgment of the Court of First Instance (CFI) which annulled a Commission decision ordering the recovery of illegal aid should be dismissed. The Advocate General considers, (...)

The Swedish Administrative Court of Appeal finds investment by the City Council of Stockholm in expansion of broadband to be illegal State aid that should have been notified to the Commission according to Art 88.3 EC (Thomas Svensson)
Swedavia AB
,
General Court of the European Union (Luxembourg)
,
Öberg & Associés
Factual Background In 2005, the City Council of Stockholm approved an “action plan” meaning that the four important housing corporations controlled by the City would make considerable investments in broadband infrastructure. Thomas Svensson, being a local resident, appealed the decision claiming (...)

A Swedish Court applies the market economy investor principle in a State aid case (Thomas Svensson / City of Stockholm)
Cederquist
,
Swedavia AB
Background In November 2005, Thomas Svensson (“Svensson”) appealed a decision by the City Council of Stockholm (the “City”) to the Stockholm County Administrative Court claiming that the decision by the City to give green light to four Stockholm city-controlled companies to invest in broadband (...)

The Belgium Court of Commerce of Brugge rules that the implementation of a State aid measure must be postponed until the EC Commission has finished its investigations (Oostende fish market - AGVO)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background The municipality of Oostende has granted several benefits to the fish market of Oostende. This includes the grant of start-up capital by the Autonoom Gemeentelijke Vismijn Oostende (“AGVO”); AGVO then subsequently granted financial assistance to EVO and PO. In addition, the (...)

The European Commission endorses € 56 M of regional investment aid to a German company for the production of thin-film solar modules in Saxony (Sunfilm)
European Commission - DG COMP (Brussels)
,
Groupe Holder
,
"State aid: main developments between 1 January and 30 April 2009"* On 11 February 2009, the Commission endorsed €56 million of regional investment aid to Sunfilm for the production of thin-film solar modules in Saxony, Germany. Sunfilm AG is a newly founded company which is setting up a plant (...)

The European Commission finds aid granted to UK incumbent telecommunications operator to be partially unlawful and orders its recovery (British Telecom)
European Commission - DG COMP (Brussels)
,
Groupe Holder
,
"State aid: main developments between 1 January and 30 April 2009"* On 11 February 2009, the Commission found aid granted to BT to be partially unlawful and ordered recovery. The Commission concluded that a UK Crown guarantee covering the pension liabilities of British Telecom plc on the EU (...)

The Finnish Administrative Court approves the applicant’s claim on alleged State aid and rules that the measures may not be put into effect before the EC Commission has made its final decision on compatibility (Mikkeli City Council)
Dittmar & Indrenius
Factual Background The City Council of Mikkeli had on 8 December 2008 made a decision, by which it granted deferments to amortizations of a debt to an company operating within food manufacture subject to reorganization proceedings. In addition, the City Council had decided to postpone some (...)

Procedures

The Polish Council of Ministers issues a new leniency procedural regulation
Hogan Lovells (Warsaw)
,
PKN Orlen
On 24 February 2009, a new Regulation on the Polish leniency programme (Regulation of the Council of Ministers of 26 January 2009 concerning the mode of proceeding in cases of enterprises’ applications to the President of the Office of Competition and Consumer Protection for immunity from or (...)

The Hungarian Constitutional Court condemns a statute imposing ’occupational ban’ on the executives of cartelist companies
Hungarian Competition Law Research Centre
On the 23rd of February 2009, The Hungarian Constitutional Court (hereafter: HCC) has finally spoken about the Amending Law of the Hungarian Competition Act (hereafter: Amendment), considering it partially unconstitutional. The Amendment concerned different issues, among others: damages (...)

The Spanish Supreme Court clarifies the course of action to be sought for the review of changing circumstances (McLane España / Dirección General de Defensa de la Competencia)
University College London
Introduction In the context of determining the appropriate remedies to be applied for an abuse of dominant position, the Spanish Supreme Court faced the question of how to tackle the lapse of time since the Administrative Authority issued its decision until the case reaches the Court for a (...)

The Turkish competition board introduces two new regulations on leniency and calculation of fines
Çakmak Avukatlik Bürosu
,
Akol Avukatlik Bürosu
On 15 February 2009, two new Regulations, Regulation on the Calculation of Fines and the Leniency Regulation entered into force in Turkey. The Leniency Regulation which is modeled upon the EC Competition Law introduces a totally new procedure to the Competition Law enforcement which aims at an (...)

The Spanish antitrust authority adopts a communication on the quantification of fines
European Court of Justice (Luxembourg)
,
Garrigues
On 9 February 2009, the Spanish Antitrust Authority (Comisión Nacional de la Competencia or CNC) adopted a Communication on the quantification of sanctions for violations of Articles 1, 2 and 3 of the Spanish Competition Act and Articles 81 and 82 EC . The CNC adopted this piece of legislation (...)

The Spanish Competition Authority issues its first guidelines for the calculation of fines for antitrust infringements (Comunicación sobre la cuantificación de las sanciones derivadas de infracciones...)
Cleary Gottlieb Steen & Hamilton (Brussels)
On February 6, 2009, the CNC approved its first guidelines for the calculation of fines for infringements of Articles 1, 2 and 3 of the Spanish Competition Act, and Articles 81 and 82 of the EC Treaty (the “Guidelines”). The CNC’s Council approved the Guidelines after a public consultation period, (...)

The Bulgarian Competition Authority adopts new methodology for setting fines
Van Bael & Bellis (Brussels)
On 3 February 2009, following the entry into force of the new Competition Act, the Bulgarian Commission on the Protection of Competition (“CPC”) adopted a new calculation methodology for setting fines (hereafter, the “Fining Methodology”). The Fining Methodology entered into force on 10 February (...)

The Romanian Constitutional Court confirms the constitutionality of provisions relating to the investigative and decision-making powers of the NCA (Astral Impex, Gabi’s, BDM)
University of Technology (Tallinn)
Summary Addressing the challenge of constitutionality of certain provisions of the Competition Law regulating the investigative and decision-making powers of the Competition Council, the Romanian Constitutional Court adhered to its preceding jurisprudence and dismissed the applicants’ (...)

The Bulgarian Competition Authority introduces a leniency programme
Van Bael & Bellis (Brussels)
In February 2009, the Bulgarian Commission on Protection of Competition (CPC) introduced a programme on immunity from and reduction of fines in cartel cases (Leniency Programme). The Leniency Programme, which provides an opportunity for applicants to receive immunity from fines or a significant (...)

Regulatory

The French Competition Authority issues a favourable opinion regarding three derogating inter-professional agreements relative to the new rules on payment timeframes in the toy, DIY and watch making-jewellery sectors
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Payment timeframes: The Conseil de la concurrence has issued a favourable opinion regarding the derogating agreements signed in the toy, DIY and watch making-jewellery sectors.* Referred to by the Minister of (...)

Public sector

The French Competition Authority condemns a maritime transport operator for abusive conducts perpetrated in a tender procedure regarding the assignation of the Marseille/Corsica maritime links to be provided under a public service obligation (SNCM)
Desogus Law Office (Cagliari)
The French Competition Council (FCC) has imposed a € 300,000 fine on Société National Maritime Corse Méditerranée (SNCM) for abusing its dominant position by offering a global indivisible bid in the tender procedure for the assignation of a number of maritime routes linking Marseille with Corsica to (...)

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