July 2004

Anticompetitive practices

The UK Competition Appeal Tribunal sets aside the OFT’s decision, subject to the OFT giving undertakings as to what actions it must subsequently take within a definite period of time (Association of British Insurers)
UK Competition and Markets Authority (CMA) (London)
1. Introduction The Competition Appeal Tribunal (“CAT”) Order of 30 June 2004 relates to the unusual situation where the Office of Fair Trading ("OFT") decided not to contest the appeal against its decision. In its Order, the CAT set aside the OFT’s decision, subject to the OFT giving (...)

The Greek Administrative Court of Appeal of Athens upholds a decision of the NCA condemning the two major press distribution agencies for concerted practice (Press Agencies)
Hellenic Competition Authority (Athens)
The case concerned the common conduct from the two major press distribution Greek agencies in the island of Crete (South of Greece) during 1999 and 2000. This behaviour has been condemned by the Greek Competition Authority (Hellenic Competition Commission, thereafter HCC) in 2003 (Decision (...)

La Cour d’Appel du Royaume Uni juge que l’obligation contractuelle pour un opérateur mobile virtuel de payer le prix fixé par l’opérateur de réseau ne suffit pas à caractériser un accord au sens de l’Art. 81 CE (Unipart / O2)
Sheppard Mullin (Brussels)
Le litige oppose un opérateur mobile virtuel (Unipart) à un opérateur de réseau téléphonique sans fil (O2) auquel il achetait des heures de télécommunication pour les commercialiser directement auprès des consommateurs. L’opérateur mobile virtuel reproche à son ancien partenaire commercial de lui avoir (...)

The Japan Fair Trade Commission issues its recommendations against participants in bidding for construction work (City of Niigata)
Japan Fair Trade Commission (Tokyo)
Recommendation to Companies which Tendered for Construction Work Ordered by the City of Niigata* The Fair Trade Commission investigated participant in bids for construction work ordered by the City of Niigata based on the provisions of the Antimonopoly Act, and today issued a recommendation to (...)

The Hungarian Competition Authority condemns price concertation, market allocation and bid rigging between undertakings bidding for the construction of a motorway (Betonút, Debmut, Egut, Hidépitõ, Strabag)
McDermott Will & Emery (Brussels)
In the summer of 2002, construction works for a motorway in Hungary were put out to tender by the National Motorway Co. Ltd. The tendering process was made up of two distinct procedures as the first procedure (restricted procedure with invitations) was declared ineffective. The subsequent (...)

The German Federal Court of Justice decides on the validity of several standard clauses contained in motor vehicle distribution agreements (CITROËN)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 13 July 2004, the German Federal Court of Justice issued a judgement on the validity of several standard clauses contained in motor vehicle distribution agreements concluded between the French automobile manufacturer CITROËN and its licensed dealers in Germany. The case concerned the (...)

A Spanish Court refuses to qualify a contract as a resale agreement and holds that the qualification given by “administrative bodies” to similar agreements is not binding upon national courts (Melón / Repsol)
London School of Economics
Repsol Comercial de productos petrolíferos S.A. (hereinafter, “Repsol”), supplied oil products to Melón S.A. (hereinafter, “Melón”), pursuant to an agency agreement signed between the parties. Considering that it was not a “genuine” agency agreement and that Commission Regulation (EC) n° 2790/1999, of (...)

Unilateral Practices

The European Commission rules on excessive pricing in the port sector (Scandlines Sverige v. Port of Helsingborg, Sundbusserne v. Port of Helsingborg)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"Two important rejection decisions on excessive pricing in the port sector"* On 23 July 2004, the Commission took two decisions rejecting two complaints lodged in 1997 by ferry operators—Scandlines Sverige AB (hereinafter ‘Scandlines‘) and Sundbusserne AS (hereinafter ‘Sundbusserne‘) — against the (...)

Dutch competition authorities and judges disagree on the application of the essential facility ECJ case law on imposing on the television broadcaster the obligation to license to a newspaper its TV programme (NOS/Telegraaf)
European Commission - DG HR
The Dutch national competition authority (hereafter NCA) had imposed on NOS, a Dutch national television broadcaster, the obligation to license to the Telegraaf, a national newspaper, the weekly TV programme listing at a reasonable price. The Telegraaf intended to add to its Saturday edition a (...)

The Japan Fair Trade Commission issues its recommendations on Non-Assertion Provision (NAP) provisions in software license agreements (Microsoft)
Japan Fair Trade Commission (Tokyo)
The JFTC renders a Recommendation to Microsoft Corporation* The Japan Fair Trade Commission (hereinafter “JFTC”), upon conducting an investigation into Microsoft Corporation (hereinafter “Microsoft”), found that Microsoft is conducting “Dealing on Restrictive Terms” and issued a recommendation to (...)

The German Federal Supreme Court facilitates claim of competitors for a compulsory license by widening the ECJ Magill and IMS case law (Standard - Spundfass)
White & Case (Hambourg)
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Metro (Dusseldorf)
On 13 July 2004 the German Federal Supreme Court delivered a remarkable judgment on the prerequisites of a claim for the granting of a compulsory patent license under antitrust law. According to this judgment, the owner of a patent may be obliged to grant a license to competitors for products (...)

The French Competition Authority fines the dominant operator on the market for supplying street furniture to local and regional administrations for having abused of its position (Decaux group)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence fines the Decaux group for abuse of a dominant position.* Following a referral by the company More group France, the Conseil de la concurrence has found the Decaux group guilty (...)

Mergers

The Italian Antitrust Authority fines the global leader of packaging for liquids and semi-liquids for having failed to comply with a decision prohibiting the acquisition of a company (Tetra Pack - Emilcarta/Agrifood Machinery)
Ashurst
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Legance - Studio Legale Associato
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Legance - Studio Legale Associato
Background With decision n. 13459 of 29 July 2004, the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter “Authority”) has imposed a fine of € 95 million on Tetra Pak International S.A. (“Tetra Pak”), the global leader in the manufacture of packaging for (...)

The Italian Antitrust Authority fines EUR 95 M an undertaking for having failed to comply with a decision prohibiting the acquisition of a company based on the notion of de facto control (Tetra Pack - Emilcarta/Agrifood Machinery)
Ashurst
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Legance - Studio Legale Associato
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Legance - Studio Legale Associato
Background With decision n° 13459 of 29 July 2004, the Autorità Garante della Concorrenza e del Mercato (Italian Competition Authority, hereinafter “Authority”) has imposed a fine of € 95 million on Tetra Pak International S.A. (“Tetra Pak”), the global leader in the manufacture of packaging for (...)

The French Competition Council concludes, based on an ex post assessment, that a merger in the small electric household equipment market does not reveal any competition concerns, confirming its earlier opinion (SEB / Moulinex)
Herbert Smith Freehills (Paris)
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Tech Data
I. Background When Moulinex was put into administration in 2001 competitor SEB was conditionally retained by the judicial administrators as the most suitable purchaser for Moulinex‘ manufacturing sites and trading subsidiaries in France, Spain, Germany and several non-EU countries, subject to (...)

The French Minister of Economic Affairs clears a merger in the casinos markets subject to structural remedies (Accor/ Colony/ Barrière-Desseigne)
Brown Brothers Harriman (BBH) (Luxembourg)
The operation On 19 April 2004, the European Commission received a notification of a proposed merger in which the companies Accor and Colony and the Barrière-Desseigne family would join forces to set up the Lucien Barrière Group, a company which would bring together the casinos currently (...)

The Turkish Competition Authority cleared a merger in the sugar, beet and maize seeds markets subject to divestiture (Syngenta-Astrazeneca)
Esin
The operation Syngenta is a company whose ultimate parent company is Syngenta AG, which is a Swiss public company. The main field of business of Sygenta is the development, production, processing, distribution and protection of crop. Several affiliates of Sygenta were active in Turkey in the (...)

The Netherlands Competition Authority issues an administrative appeal decision, stating that an exemption for a restructured joint venture – which has been converted into a subsidiary in which competing construction companies hold minority stakes – is not required (Asfaltcentrale Stedendriehoek)
Netherlands Ministry of Economic Affairs
Asfaltcentrale Stedendriehoek (ACS) was an administrative appeal decision by the Nederlandse Mededingings autoriteit (NMa), the former national competition authority of the Netherlands, concerning an agreement on the restructuring of an asphalt production joint venture established by four (...)

The Austrian Cartel Court clears an acquisition of a minority stake in the outdoor advertising industry subject to remedies including limitations on management control, tying prohibitions and obligations of non-discrimination (Gewista/Werbeplakat Soravia)
Université de Genève
The operation The deal involved the transfer of Gewista’s "megaboards" advertising business to Werbeplakat Soravia GmbH (WPS) while, in turn, Gewista acquired 33% of WPS. In Vienna, where the bulk of outdoor advertising revenue is generated, Gewista at the time was the market leader with 60% (...)

The EU Commission approves after an in-depth investigation the creation of a joint venture in the music industry (Sony / BMG)
European Commission - DG CNECT
"Following an in-depth investigation the Commission approved the creation of the Sony/BMG music recording joint venture on 19 July 2004"* Over the last 15 years, the music industry has witnessed the process of gradual consolidation. The Commission has analysed a number of these concentrations (...)

The Portuguese NCA cleared the creation of a full-function joint venture in the construction business sector with remedies, including amendments to the shareholders’ agreement and to the by-laws and obligations of transparency and information with regards to the NCA (CTTIMO)
PLMJ (Lisboa)
The operation The operation consisted in the creation of a full-function joint venture, the CTT IMO. This new company would be jointly controlled by CTT - Correios de Portugal S.A. (CTT) and Visabeira Serviços, Sociedade Gestora de Participações Sociais S.A. (VISABEIRA). CTT is a wholly (...)

The UK Office of Fair Trading clears the acquisition of a rail passenger services franchise by an existing operator of rail and bus services subject to behavioral remedies (Arriva/ Wales and Borders rail franchise)
Added Value Capital Partners (AVCP)
The operation Arriva plc (“Arriva”) operates an extensive range of public transport services across the UK, including buses, trains and commuter coaches. Arriva Passenger Services Limited (“APS”) is the holding company for a number of bus subsidiaries, including companies which operate in Wales (...)

The European Commission revises notice on a simplified procedure for treatment of certain concentrations following adoption of the new merger regulation
European Commission - DG ENER
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European Commission - DG COMP (Brussels)
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Mazars (Brussels)
"Commission revises notices following adoption of the new merger regulation"* Following the adoption of the new Merger Regulation and of the Implementing Regulation, the Commission approved, in July 2004, three new notices dealing respectively with ancillary restraints, simplified procedure (...)

The EU Commission revises notice on ancillary restraints following adoption of the new merger regulation
European Commission - DG ENER
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European Commission - DG COMP (Brussels)
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Mazars (Brussels)
"Commission revises notices following adoption of the new merger regulation"* Following the adoption of the new Merger Regulation and of the Implementing Regulation, the Commission approved, in July 2004, three new notices dealing respectively with ancillary restraints, simplified procedure (...)

The Portuguese Competition Authority clears a merger in the cookies market with remedies, including commitment to inform the Competition Authority on price-lists, discounts and sales concluded with the 6 main clients (United Biscuits/Triunfo)
PLMJ (Lisboa)
The operation The operation consisted in the acquisition of sole control of Triunfo - Produtos Alimentares, S.A. (Triunfo) by United Biscuits Iberia, S.L. (United Biscuits) through an agreement of acquisition of shares representing Triunfo’s share capital. Triunfo was wholly owned by (...)

State Aid

The Paris Court of Appeal holds that State aid’s control is of the EC Commission’s exclusive competence and that a plaintif can not rely on Art. 87.1 EC before a national authority since this article has no direct effect (National Forest Office / Germain Environnement)
CRDEI - Centre de Recherche et de Documentation Européennes et Internationales
The equipment and arrangement of French forests is the main activity of the French National Forest Office (Office National des Forêts, ONF), which is an industrial and commercial public establishment managing 85% of the French forests. The Germain environnement LTD which is active in the (...)

The French Council of State entitles recovery of tax payments made under illegal State aid scheme (GEMO)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Brief description of the facts and legal issues Gemo, a medium-sized supermarket, contested the legality of the tax. In 2000, the Administrative Court of Lyon ordered the reimbursement of the tax to Gemo. The Minister of the Economy, Finance and Industry appealed this decision and the Conseil (...)

The European Commission conditionally approves restructuring State aid granted to German mobile phone service provider (MobilCom)
European Commission - DG MOVE
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European Commission - DG COMP (Brussels)
"Conditional decisions and EC State aid law: The MobilCom case"* I. Introduction In July 2004 the Commission approved aid granted to MobilCom AG to help it with its restructuring in 2002/2003. The approval of the aid was however linked to conditions. To offset the distortions of competition (...)

The European Commission conditionally authorizes restructuring aid to French engineering group (Alstom)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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Delegation of the European Union to Turkey
"Commission authorizes restructuring aid to Alstom under conditions"* 1. Introduction On 7 July 2004 the Commission adopted a decision to authorize State aid to Alstom under a series of important and innovative conditions. This decision closes the investigation procedure initiated in (...)

Procedures

The German Higher Regional Court of Düsseldorf holds that for foreign arbitration awards to be recognised and enforced in Germany they have to comply with fundamental provisions of German and European competition law (Regenerative Wärmetauscher)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 21 July 2004, the German Higher Regional Court of Düsseldorf issued a decision on the recognition and enforcement of foreign arbitration awards as regards competition law matters . Facts Until the end of 1989 the defendant was a producer and distributor of regenerative heat exchangers for (...)

The Maltese Commission for Fair Trading confirms that the Transport Authority was not an undertaking, consequently its monopoly was not subject to the Competition Act (Carmel Mifsud)
King’s College (London)
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Superior Courts of Malta
Competition law controls the anti-competitive agreements and the abusive behaviour of undertakings, but much anti-competitive behaviour is caused by the state. Complainants are often frustrated when they discover that the conduct of which they complain is attributable to the state acting in its (...)

Regulatory

The French Competition Authority issues an opinion on the telecommunication incumbent’s standard "Département innovant" convention (France Télécom)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence delivers the opinion the ART requested on France Télécom’s standard "Département Innovant" convention.* Following a referral by the Autorité de Régulation des Télécommunications (ART, (...)

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