November 2013

Anticompetitive practices

The Romanian Competition Council sanctions a bid rigging practice carried-out through a common representative (San Swiss Arms)
DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
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DLA Piper Dinu SCA (Bucharest)
Introduction The Romanian Competition Council ("RCC") released at the end of 2013 a decision ("RCC Decision") pursuant to an investigation concerning companies active on the production and supply of ammunition that allegedly rigged the tenders organized by the Romanian Ministry of Defense (...)

A Finnish District Court grants damages for harm caused by a cartel infringement on the market for asphalt paving works (Espoo / Asfaltti)
Finnish Competition and Consumer Authority (FCCA)
Asphalt cartel trial concluded at Helsinki District Court* On the proposal of the Finnish Competition Authority, the Supreme Administrative Court ordered on 29 September 2009 Lemminkäinen Oyj, VLT-Trading Oy, Skanska Asfaltti Oy, NCC Roads Oy, SA-Capital Oy, Rudus Asfaltti Oy and Super Asfaltti (...)

The District Court of Utrecht rules on its jurisdiction with regard to a private damages claim against participants in the lift cartel residing outside the Netherlands (Kone & ThyssenKrupp)
Allen & Overy (Amsterdam)
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Allen & Overy (Amsterdam)
Parties East West Debt (EWD) v. the following lift manufacturers: United Technologies Corporation (UTC), Otis B.V. (Otis NL), Schindler Holding ltd. (Schindler Holding), Schindler Liften B.V (Schindler NL). ThyssenKrupp A.G. (ThyssenKrupp), ThyssenKrupp Liften B.V. (ThyssenKrupp NL), Kone (...)

The German Federal Cartel Office closes its investigation against online book trader into the “price parity” clauses (Amazon)
Stanford University - Stanford Law School
Amazon Marketplace ends price parity* On 26 November 2013, Germany’s Federal Cartel Office (“FCO”) issued a press release stating that it has closed the investigation into Amazon’s “price parity” clauses applied in agreements with traders that operated on its Marketplace platform. In fact, on 27 and (...)

The EU Court of Justice rules on the matter of appropriate remedy for infringements of the right to have the case adjudicated within a reasonable time (Kendrion, Gascogne)
University of Leiden
The recent landmark cases on the reasonable time requirement: Is the Court caught between Scylla and Charybdis?* In the landmark cases Kendrion, Gascogne and Gascogne Germany the CJEU clarified some important procedural issues related to infringements of the reasonable time requirement. The (...)

The EU Court of Justice dismisses the appeal while establishing that a claim for compensation for damages arising from the General Court’s failure to adjudicate within a reasonable time must be brought before the General Court itself (Gascogne)
Garrigues (Brussels)
The Groupe Gascogne Judgment (see both sides of the story)* Last week I wrote a post about the Groupe Gascogne Judgment (and other stuff) which has elicited some interest. Somehow oddly, I will now present counter-arguments against all those who… actually agreed with me. Given that I wrote (...)

The German Competition Authority closes its proceedings against online book trader for enforcing price parity clauses on its marketplace platform (Amazon)
German Competition Authority (Bonn)
Amazon abandons price parity clauses for good* 26 November 2013: The Bundeskartellamt has today terminated its proceedings against Amazon for enforcing price parity clauses on its Marketplace platform after the company had met the requirements set by the authority. Andreas Mundt, President of (...)

The European Commission initiates a formal investigation into potentially anti-competitive restrictions in pay-TV licensing arrangements
Blackstone Chambers
Murphy, round 2: does exclusive territorial licensing of pay-TV breach EU competition law?* According to a report in the Financial Times on 24 November 2013, the European Commission is on the verge of commencing a formal investigation into potentially anti-competitive restrictions in pay-TV (...)

The EU Commission is set to open an investigation that could outlaw exclusive territorial models of pay-TV licensing
Blackstone Chambers
Murphy, round 2: does exclusive territorial licensing of pay-TV breach EU competition law?* According to a report in the Financial Times on 24 November 2013, the European Commission is on the verge of commencing a formal investigation into potentially anti-competitive restrictions in pay-TV (...)

The US DoJ announces agreement to plead guilty in relation to participation in a conspiracy to fix prices of seatbelts installed in cars (Takata)
Bowman Gilfilan (Cape Town)
“More Auto Parts Cartels Uncovered – Do Sanctions Not Deter Competition Law Contraventions?”* In October last year, Takata Corp. of Japan announced that it would pay US$71.3 million to settle charges of competition law infringements brought by U.S. prosecutors over price-fixing on seat belts sold (...)

The Polish Court of Competition and Consumer Protection confirms the Competition authority’s decision on multilateral interchange fees (Visa and MasterCard)
European Commission (Brussels)
Poland: The Court of Competition and Consumer Protection confirms UOKiK’s Decision on Multilateral Interchange Fees* On 21 November 2013, the Court of Competition and Consumer Protection (SOKiK) confirmed the decision of the President of the Office of Competition and Consumer Protection (...)

The OECD publishes a study showing that retail road fuel market prices can be distorted even in seemingly competitive markets
Steve Szentesi Law Corporation
Competition & Gas: Canadian Competition Bureau Contribution to OECD Study on Competition & Gas* On my daily media sweep earlier today, this interesting Competition Bureau contribution to an OECD study on competition and gasoline caught my eye (OECD Policy Roundtables – Competition in (...)

The Competition Commission of India organises two-day conference on issues and challenges in setting up an effective agency, enforcement related to state owned enterprises, public procurement and creation of competition culture (BRICS International Competition Conference)
Nortons Incorporated
Quo vadis? Political interventionism in South African competition law* There has been a somewhat startling demonstration of diverging views regarding interventionism in competition matters between emerging and established jurisdictions. During the recent BRICS international competition (...)

The Italian Competition Authority launches an investigation into a suspected breach of Article 101 TFEU in relation to the supply of nutrition products for wellness and fitness (Enervit)
Queen Mary University (London)
In November 2013, after receiving a complaint from a pharmacist and owner of a website for online retail shopping, the Italian Antitrust Authority (AGCM) has started a formal investigation on vertical restrictions of competition stemming from agreements between Enervit S.p.A. (Enervit), a (...)

The Canadian Commissioner of Competition talks in Kashipur India about the importance of competition to an effective economy and compliance
Steve Szentesi Law Corporation
Canada’s Commissioner of Competition Talks Compliance & Cooperation (in India)* Canada’s (relatively new now) Commissioner of Competition is on the road at the moment, having delivered in India on 20 November 2013. In a short but focused speech in Kashipur India, the Commissioner focused (...)

The Australian Federal Court receives a file concerning alleged resale price maintenance on the market for branded air conditioning products (ACCC / Mitsubishi Electric)
Australian Competition and Consumer Commission
ACCC institutes proceedings against Mitsubishi Electric Australia for alleged resale price maintenance* The Australian Competition and Consumer Commission has filed proceedings in the Federal Court against Mitsubishi Electric Australia Pty Ltd (Mitsubishi Electric) for allegedly engaging in (...)

The Hungarian Competition imposes fines on 11 financial institutions due to their concerted practice aimed at limiting the full prepayment of foreign currency loans (Budapest Bank)
Hungarian Competition Authority (Budapest)
9,5 billion HUF fine in the "full prepayment loan banking case"* The Gazdasági Versenyhivatal (GVH, the Hungarian Competition Authority) in its decision delivered on 19 November 2013 imposed a fine of 9.488.200.000 (cca 31,6 million Euro) on 11 financial institutions due to their concerted (...)

The Australian Competition and Consumer Commission finds that there is insufficient evidence to support a contravention of the cartel provisions in relation to casino operations in New South Wales and Queensland (Echo)
Australian Competition and Consumer Commission
ACCC statement on Crown/ Echo investigation* The Australian Competition and Consumer Commission has concluded an investigation following comments made by the Chairman of Echo Entertainment, Mr John O’Neill, that the Chairman of Crown, Mr James Packer, made a statement which could have been (...)

The Australian Federal Court dismisses allegations of price fixing on the market for loan arrangement services finding that the parties were not in competition with each other (ANZ)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). ANZ gets home on defending price fixing claims* A longstanding dispute between the ANZ and the ACCC has finally been resolved, with the Federal Court dismissing the allegations of the ACCC in a (...)

The Australian Federal Court dismisses the proceedings alleging the violation of the price fixing prohibition in the loan arrangement services market (ANZ)
Australian Competition and Consumer Commission
ANZ found not to have breached price fixing provisions* The Federal Court has today dismissed proceedings brought by the Australian Competition and Consumer Commission alleging that Australian and New Zealand Banking Group Limited (ANZ) had breached the price fixing provisions of the Trade (...)

The US Senate’s Subcommittee on Antitrust, Competition Policy and Consumer Rights holds cartel related hearings
Steve Szentesi Law Corporation
New Publications: DoJ & FTC Testimony Posted from Antitrust Subcommittee Hearings* The Americans are not ones to pussy foot around when it comes to economic crime. Yesterday, the U.S. Senate’s Subcommittee on Antitrust, Competition Policy and Consumer Rights held cartel related hearings (...)

The German Supreme Court rejects an appeal against an order from a lower court awarding damages because of losses suffered due to an anticompetitive clause in an agreements (Dornbracht)
Quinn Emanuel Urquhart & Sullivan (Brussels)
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Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
The luxury bathroom fittings manufacturer Dornbracht has lost its appeal to the German Supreme Court against an order from a lower court awarding damages of €820,000 to a retailer because of losses suffered due to an anticompetitive clause in Dornbracht’s distribution agreements. The case is (...)

The UK CAT rules that antitrust findings as regards the copper plumbing tubes cartel did not support the intent to injure required for a conspiracy claim brought under section 47A of the Competition Act (W.H. Newson / IMI)
LSE
Conspiracy, the CAT, and the Court of Appeal: “Here is a case unprecedented” (The Gondoliers, Act 2)* In W.H. Newson Holding Limited & ors v IMI plc & ors [2013] EWCA Civ 1377, the Court of Appeal has made some important new law regarding the scope of section 47A of the Competition Act (...)

The Hellenic Competition Commission issues formal opinion on regulatory-type restrictions concerning the distribution of cement in Greece
European Commission (Brussels)
Greece: The Hellenic Competition Commission issues Formal Opinion on Production, Testing, Certification and Marketing of Cement* On 11 November 2013, the Hellenic Competition Commission (HCC) issued Opinion No 32/VII/2013 on regulatory-type restrictions concerning the distribution of cement (...)

The Romanian Competition Council closes an investigation without imposing fine in the management of waste electrical and electronic equipment market (GreenWeee, Environ)
OMV Petrom
Introduction The Romanian Competition Council (the “RCC”) recently finalized an investigation in the management of waste electrical and electronic equipment market. In Romania, the waste markets are relatively new markets developed after Romania became a member of European Union and implemented (...)

A US District Court certifies a class seeking injunctive relief, though declines to certify a damages class arising from the allegedly preclusive effect of the rules that would impede group licensing arrangements with videogame developers and broadcasters (NCAA Student Athletes)
Orrick, Herrington & Sutcliffe (San Francisco)
Injunctive Relief, but not Damages Class, Certified in NCAA Student-Athlete Litigation* In In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 2013 U.S. Dist. LEXIS 160739 (N.D. Cal. Nov. 8, 2013) (Wilken, J.)., the Court certified a class of current and former (...)

The Spanish Supreme Court confirms passing on defence subject to strict conditions in the second follow-on claim for an infringement of Antitrust rules against a cartel in the sugar sector (Spanish Sugar Cartel, TS Ebro)
3C Compliance
I. Facts: The Spanish Supreme Court, Tribunal Supremo, issued on 7 November, 2013 the second ruling about a follow-on damage claim against the Spanish Sugar Cartel . These claims were filed in the year 2007 before the local court of Madrid by several sweets and food producers against the (...)

The Italian Competition Authority opens an enquiry into an alleged market sharing agreement in the private healthcare sector (Sanità privata nella regione Abruzzo)
Desogus Law Office (Cagliari)
In the Sanità privata nella regione Abruzzo (Healthcare Private Providers) case, by the decision made on 6 November 2013, the Italian Competition Authority (ICA) has opened an investigation against a number of private healthcare providers, Synergo, Villa Serena, Di Lorenzo and Villa Letizia. (...)

The Competition Commission of India penalizes theatre owners association for engaging in anti-competitive practices in violation of section 3 of the Competition Act 2002 (Reliance)
University College London
OrderVide its order dated 05.11.13 in Case No. 78 of 2011, the Competition Commission of India (Commission) penalised the Tamil Nadu Film Exhibitors Association (now known as Tamil Nadu Theatre Owners Association or TNTOA) under section 27 of the Indian Commission Act, 2002 in the sum of Indian (...)

The Australian Competition and Consumer Commission publishes its September 2013 quarterly report including inter alia information on cartel proceedings as regards the supply of ball and roller bearings for aftermarket applications
Australian Competition and Consumer Commission
ACCC quarterly report puts spotlight on statutory information gathering powers* The Australian Competition and Consumer Commission has published its September 2013 quarterly report, ACCCount. In the last quarter, the ACCC was involved in 10 proceedings relating to competition enforcement (...)

Unilateral Practices

The German and UK competition authorities close investigations against leading online retailer concerning its price parity policy applicable to third party sellers (Amazon)
European Commission (Brussels)
Germany and United Kingdom: Antitrust Cases against Amazon formally closed* On 26 and 29 November 2013, the German Bundeskartellamt (BKartA) and the UK’s Office of Fair Trading (OFT) terminated their respective antitrust investigations into Amazon’s price parity policy applicable to third (...)

The Slovenian Supreme Court annuls the Competition Authority’s infringement decision against telecom company for abuse of dominance in the market for the provision of mobile telecommunications services to end customers (Itak Džabest)
Fatur
On 26 November 2013, the Supreme Court of the Republic of Slovenia ruled in case G 9/2012, Telekom Slovenije v. Slovenian Competition Protection Agency (hereinafter referred to as CPA). The Supreme Court annulled the CPA’s decision (Case 306-14/2009), which found anti-competitive conduct on the (...)

The US District Court of Western Texas dismisses antitrust claims predicated upon alleged trademark misuse in relation to flow conditioners in oil pipelines (RJ Machine / Canada Pipeline Accessories)
Orrick, Herrington & Sutcliffe (San Francisco)
Trademark Misuse Is ^Almost^ Never an Antitrust Injury* Trademarks are commonly thought to convey no market power. In RJ Machine Co. v. Canada Pipeline Accessories Co., Case No. 1:13-cv-00579-SS (W.D. Tex. Nov. 22, 2013) (Sparks, J.), the court dismissed antitrust claims predicated upon (...)

The Italian Regional Administrative Court of Second Instance annuls the Italian Competition Authority’s decision concerning an abuse of dominant position in motorway assistance sector (Europe Assistance VAI)
Lipani Catricalà & Partners (Rome)
*Italian antitrust administrative case law. Overview of all decisions from October to December 2013 (Third contribution) 1. Premise – This work is part of a project (hereinafter, the “Project”) aimed to offer a general, quarterly overview of all the decisions of Italian administrative courts, (...)

The Colombian Competition Authority reaffirms the country’s first serious fine in a case against a mobile telecommunications company for abuse of dominance (COMCEL / America Movil)
Cortazar Urdaneta & Cia
The case In November 2013 the Colombian competition authority (Superintendence of Industry and Commerce - SIC) decided the administrative appeal for review filed by COMCEL against the decision taken in September 2013 finding that between September of 2011 and March of 2012 the company had (...)

The Swiss ComCo closes proceedings without further action against a Swiss individual with a formerly controlling stake in companies investigated for a possible abuse of a dominant position
University of St. Gallen (St Gall)
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Lenz & Staehelin (Zurich)
Swiss Competition Commission rejects liability of a natural person with a controlling shareholding in companies under cartel investigation* On November 18, 2013, the Swiss Competition Commission (ComCo) closed proceedings without further action against a Swiss individual with a formerly (...)

The Competition Commission of India orders thorough investigation concerning an alleged abuse of dominant position in the in the market for ’Global System for Mobile Communication’ (Micromax / Ericsson)
Jindal Global University
In the year 2013, an Indian company, Micromax Informatics Ltd. (hereinafter Micromax), filed a case before the Competition Commission of India (hereinafter CCI) against the Swedish telecoms equipment maker, Telefonaktiebolaget LM Ericsson (hereinafter Ericsson), for alleged abuse of its (...)

The Competition Commission of India orders investigation against Swedish telecom provider for abusing its dominant position in determining royalty under FRAND terms (Micromax Informatics Limited / Telefonaktiebolaget LM Ericsson)
University of Tilburg - Center for Law and Economics (TILEC)
Background In a recent matter, Micromax Informatics Limited vs Telefonaktiebolaget LM Ericsson (Publ), the Competition Commission of India has ordered an investigation by DG competition against Ericsson for abusing its dominant position in determining royalty under the FRAND terms. Micromax in (...)

The Cypriot Commission for the Protection of Competition rejects a complaint of abuse of dominance bearing in mind the nature of the market, and concludes that the market shares do not give a dominant position in the relevant market (EKO)
Neocleous (Nicosia)
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Neocleous
The case concerned a complaint filed by Gkinis Petrol Station Ltd (hereinafter referred to as "Gkinis"), against Hellenic Petroleum Cyprus Ltd (hereinafter referred to as "EKO"), for an alleged infringement of sections 6(1) and 6(2) of the Protection of Competition Law 13(l)/ 2008 (hereinafter (...)

The England and Wales Court of Appeal refuses interim injunction against alleged refusal to deal as claimant failed to identify any market on which the defendant could conceivably be dominant (Chemistree Homecare / Abbvie)
St John’s Chambers
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

The Australian Competition and Consumer Commission identifies reform priorities to support competition at domestic growing container ports
Australian Competition and Consumer Commission
ACCC identifies reform priorities to support competition at Australia’s growing container ports* In its 15th annual monitoring report, the Australian Competition and Consumer Commission has highlighted that further economic reforms are required if future benefits of continuing industry reforms (...)

The England and Wales High Court grants interim injunction ordering defendant bank to continue providing financial services given threat of irreparable harm to claimants (Dahabshiil Transfer Services / Barclays Bank)
St John’s Chambers
United Kingdom: interim injunctions in competition litigation* Private competition litigation is continuing to develop in the United Kingdom. The courts and the Competition Appeal Tribunal are seeing an increase in the number and complexity of follow-on damages actions, often between foreign (...)

A Chinese Higher People’s Court rejects plaintiff’s claim alleging that a vehicle manufacturer and a vehicle repair service shop abused their dominant market position by requiring high profits and refusing to deal (Liu Dahua v. Dongfeng Nissan Passenger Vehicle Company)
Renmin University of China
I. Introduction of Liu Dahua v. Dongfeng Nissan Passenger Vehicle Company, etc. Anti-monopoly Case “OEM parts” refer to the parts which are produced by OEM part suppliers for the vehicle manufacturer and printed with the vehicle manufacturer logo. In China’s market, OEM parts are usually supplied (...)

Mergers

The German Competition Authority initiates second phase proceedings on a takeover of medical care centres (Fresenius / Rhön)
German Competition Authority (Bonn)
Bundeskartellamt initiates second phase proceedings on the takeover of Rhön locations by Fresenius* Bonn, 27 November 2013: In merger control proceedings relating to the planned takeover of Rhön subsidiaries by Fresenius the Bundeskartellamt has initiated second phase proceedings. The health (...)

The Hungarian Parliament adopts substantial amendments to merger control and antitrust procedure
Oppenheim
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Oppenheim - Budapest
1) Introduction A wide-ranging amendment of the Hungarian Competition Act (HCA) was passed by the Hungarian Parliament on 18 November 2013 (HCA Amedment). The amendment entails the largest overhaul of the Hungarian competition law rules since 2009 and concerns the following major areas: • the (...)

The COMESA Competition Commission announces the lodging of its tenth merger notification involving two supermajor oil companies (Total Egypt / Chevron Egypt)
Primerio
Some COMESA Merger-Control Musings on the Latest Notification* It’s been a little while since we last published a note on COMESA. When there is little substantive news to report, statistics often yield a topic to write about. And so it is with COMESA. The statistic at hand: On Monday, 18. (...)

The US FTC issues final changes to the premerger notification rules that require companies in the pharmaceutical industry to report certain proposed acquisitions of exclusive patent rights to the FTC and the DoJ for antitrust review
University of Michigan
Is the FTC Picking on the Pharmaceutical Industry Through New HSR Rules?* Effective December 16, 2013, Hart-Scott-Rodino (HSR) coverage of exclusive licenses of patents will change. As HSR practitioners know well, the Federal Trade Commission’s Premerger Notification Office (PNO) has (...)

The Australian Competition and Consumer Commission does not oppose a proposed acquisition in the market for the supply of fixed line broadband services (TransACT Capital Communications / NBN)
Australian Competition and Consumer Commission
ACCC to not oppose NBN Co’s proposed acquisition of TransACT’s fibre to the premises network* The Australian Competition and Consumer Commission will not oppose the proposed acquisition of TransACT Capital Communications Pty Ltd’s (TransACT) fibre to the premises network (TransACT FTTP network) (...)

The U.S. Department of Justice announces an agreement to settle the antitrust litigation challenging the merger of two air carriers (US Airways / American Airlines)
Cadwalader Wickersham & Taft (New York)
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Cadwalader Wickersham & Taft (Washington)
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Cadwalader Wickersham & Taft (Washington)
On November 12, 2013, US Airways, American Airlines, the U.S. Department of Justice (“DOJ”), and several state Attorneys General announced an agreement to settle the antitrust litigation challenging the merger of the two carriers. Cadwalader, Wickersham & Taft LLP acted as antitrust counsel (...)

The Competition Commission of Singapore ceases investigations into a non-compete clause following a voluntary agreement not to enforce the clause (F&N / Heineken)
BHP Billiton (Singapore)
On 4 November 2013, the Competition Commission of Singapore (the “CCS”) issued a media release confirming that it had ceased its investigations into a non-compete clause contained in the Share Purchase Agreement relating to the completed acquisition by Heineken International B.V. (“Heineken”) of (...)

State Aid

The EU Court of Justice rules on the matter of non-notified state aid subject to a formal examination procedure initiated by the Commission and the measures to be adopted by the national courts hearing an application for cessation or recovery (Deutsche Lufthansa / Flughafen Frankfurt-Hahn)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Non-notified State Aid and the Role of National Courts [C 284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn]* Introduction What prevents a Member State from granting State aid without first notifying it to the European Commission? Cynics would (...)

The EU General Court finds that an authorisation agreement on the mining fees payable for the exploitation of hydrocarbon reserves does not constitute State aid incompatible with the internal market (MOL)
European Procurement Law Group
GC rules on two-part State aid measures and selectivity under Art 107(1) TFEU (T-499/10)* In its Judgment of 12 November 2013 in case T-499/10 MOL v Commission, the General Court has found that an authorisation agreement that froze the mining fees payable for the exploitation of hydrocarbon (...)

The EU Commission finds that the potential of the archaeological museum to affect intra-EU trade was low and therefore the measure did not constitute state aid (Messara Creta)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Why Can the Commission Not Be Consistent in its Analysis of Economic Activity and Affectation of Trade?* Introduction If you ask a national official who deals with State aid to identify the most challenging aspects of working with State aid rules, (...)

Procedures

The Higher Regional Court of Hamm approves access to a criminal file containing a leniency application and the confidential version of a Commission’s fining decision to a civil court reviewing a damage claim against members of a cartel
Commeo
In its decision of 26 November 2013 , the Higher Regional Court of Hamm (“the Court”) had to decide whether a criminal investigation file including a leniency application submitted by a cartelist and parts of the confidential version of the European Commission’s fining decision could be disclosed (...)

The EU Court of Justice consolidates view on effective remedy for excessive length of proceedings before the General Court in competition cases (Groupe Gascogne)
Clifford Chance (Athènes)
In the Groupe Gascogne judgment delivered on 26 November 2013, the Court of Justice consolidates its conception on issues of effective judicial protection in competition law adjudication. The case originated in an action for annulment against the General Court (GC) judgment T-72/06 Groupe (...)

The EU Court of Justice rules on the procedural and substantial provisions applicable to an antitrust claim and establishes that court proceedings of an excessive duration were in violation of Article 47 of the Charter of Fundamental Rights of the EU (Groupe Gascogne)
European Procurement Law Group
It’s for the GC to decide, but it’s not ok: CJEU rules on ’excessive duration’ of competition law litigation (C-40/12 P)* In a batch of impatiently expected Judgments of 26 November 2012, the CJEU has ruled on the procedural and substantial rules applicable to a claim that (competition law) (...)

The European Commission signs memorandum of understanding on cooperation with the Competition Commission of India
European Commission (Brussels)
European Commission: DG Competition signs Memorandum of Understanding on Cooperation with the Competition Commission of India* On 22 November 2013 the European Commission signed a Memorandum of Understanding (MoU) on cooperation in the field of competition laws with the Competition Commission (...)

The Indian Competition Commission and the EU Commission sign a memorandum of understanding in order to enhance the effective, transparent and non-discriminatory enforcement of competition laws
Indian Competition Commission (New delhi)
Competition Commission of India and DG, Competition of the European Commission sign MOU* Competition Commission of India (CCI) and the Directorate General for Competition of the European Commission (DG, Competition) have signed a Memorandum of Understanding on Cooperation in the Field of (...)

The Paris Court of Appeal rules on the communication by the Competition Authority of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private enforcement claim (Ma liste de courses)
Dunaud Clarenc Combles & Associés
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Dechert (Paris)
In its judgment dated November 20, 2013, the Paris Court of appeal (the Court of Appeal) ruled on the communication by the French Competition Authority (the FCA) of documents held in its own file to a civil court before which a victim of alleged anticompetitive practices had brought a private (...)

The England and Wales Court of Appeal rules that a cartelist cannot avoid the jurisdiction of a national court on the basis that the victim of the cartel had purchased the relevant product or service via a subsidiary or other third party (Deutsche Bahn / Morgan Advanced Materials)
Blackstone Chambers
The Court of Appeal on Cartels and Conflicts* The Court of Appeal handed down two important decisions last week on the application of conflict of law principles to cartel follow-on damages claims: Deutsche Bahn AG & Ors v Morgan Advanced Materials plc & Ors [2013] EWCA Civ 1484 and (...)

The Hungarian Parliament passes substantial amendments to competition law with regard to merger control and antitrust procedure
Oppenheim
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Oppenheim - Budapest
1) Introduction A wide-ranging amendment of the Hungarian Competition Act (HCA) was passed by the Hungarian Parliament on 18 November 2013 (HCA Amendment). The amendment entails the largest overhaul of the Hungarian competition law rules since 2009 and concerns the following major areas: the (...)

The Supreme Court of Canada establishes that specific authorisation is needed for computer searches in Canada, raising questions on the same matter in EU law (R v Vu)
Canadian International Joint Commission
Introduction The Supreme Court of Canada (“court”) ruled on November 7, 2013 in R v Vu (“Vu”) that specific warrant authorisation is needed to execute searches of computers and mobile phones . While the judgment concerned alleged offences in relation to the production and possession of (...)

The Canadian Supreme Court rules that specific authorisation needed to search computers and mobile phones (R v Vu)
Canadian International Joint Commission
Introduction The Supreme Court of Canada (“court”) ruled on 7 November 2013 in R v Vu that specific warrant authorisation is needed to execute searches of computers and mobile phones. While the decision concerned alleged offences related to the production and possession of marijuana, it most (...)

The Supreme Court of Canada rules that investigators cannot search personal electronic items without a warrant providing them with an express authorization (R. / Vu)
Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Montréal)
The Supreme Court of Canada: A Computer is Not a Cupboard* When investigating cartel violations in Canada, the Competition Bureau’s tool of choice is the “search and seizure” (the Canadian equivalent of the “dawn raid” in Europe). The Bureau execises its search and seizure powers pursuant to (...)

Regulatory

The Kenyan Communications Commission launches a strategic plan for the ICT sector and discloses its cooperation project with the Competition Authority aiming at ensuring the transparency of all mobile money transfer platforms
Primerio
Mobile Telecom and Payments sector getting boost from state in Kenya* According to a release by the Kenyan Communications Commission (CCK), the CCK is cooperating with the country’s Competition Authority (CAK) to enhance the mobile telecoms sector in Kenya. The CCK is aiming for 90% of all (...)

The German Competition Authority announces the operational start of a special unit dedicated to increasing transparency on fuel prices (Market Transparency Unit)
German Competition Authority (Bonn)
Regular operation of Market Transparency Unit for Fuels to start on 1 December 2013* Bonn, 29 November 2013: The regular operation of the Market Transparency Unit for Fuels will start on 1 December 2013. This marks the successful end of the three-month trial period: there is a constant data (...)

The Irish Competition Authority publishes a study of competition in the ports sector in Ireland finding that competition in port services could be improved
Irish Competition Authority
Competition Authority recommends changes to improve competition in Irish ports* The Competition Authority has published on 29 November 2013 a study of competition in the ports sector in Ireland which found competition in port services could be improved. The study was commissioned by Minister (...)

The UK Competition Appeal Tribunal dismisses an appeal attempting to challenge the ’value judgements’ made by OFCOM, following an investigation into the business connectivity services market (Colt)
The University of Manchester
Background On 26 November 2013, the Competition Appeal Tribunal (the “CAT”) dismissed an appeal brought by Colt Technology Services (“Colt”) against the Office of Communications (“OFCOM”) under Section 192 of the Communications Act 2003 (the “Act”). The appeal follows the publication of OFCOM’s (...)

The Netherlands ACM recommends four construction companies and six public-housing corporations to open up energy-neutral-housing renovation project (De Stroomversnelling)
Netherlands Authority for Consumers & Markets (The Hague)
ACM wants more competition in energy-neutral-housing renovation project* The Netherlands Authority for Consumers & Markets (ACM) has recommended the four construction companies and six public-housing corporations that joined forces in the project ‘De Stroomversnelling’ to open up the project (...)

The Australian Competition and Consumer Commission issues a draft decision proposing to consent and vary an access agreement as regards a port terminal for bulk wheat export (Viterra)
Australian Competition and Consumer Commission
ACCC issues draft decision on Viterra’s wheat port undertaking* The Australian Competition and Consumer Commission has issued a draft decision proposing to consent Viterra Operations Limited’s (Viterra) application to extend and vary its 2011 Port Terminal Services Access Undertaking. Viterra’s (...)

The Australian Competition and Consumer Commission publishes for consultation a varied SAU specifying terms and conditions relating to access to fibre-to-the-premises, fixed wireless and satellite networks (NBN)
Australian Competition and Consumer Commission
ACCC publishes NBN Co’s varied Special Access Undertaking for consultation* The Australian Competition and Consumer Commission received a varied Special Access Undertaking (SAU) from NBN Co on 19 November 2013. If accepted by the ACCC, this SAU will form a key part of the regulatory framework (...)

The French Competition Authority submits its draft recommendations for public consultation and calls for the modernization of the conditions applicable for granting authorizations to operate routes
French Competition Authority (Paris)
Press release published on the official website of the French Competition Authority. The Autorité de la concurrence calls for greater competition within the interregional coach transport sector to enable consumers to benefit from cheaper transportation means which are moreover opening new (...)

Public sector

The Swedish Competition Authority finds a breach of the proportionality principle in relation to the exclusion of suppliers who use more qualified nursing personnel than the minimum imposed in the tender specifications (Systrarna Odh)
Mircea & Partners (Bucharest)
Best country to grow old The UN ranked Sweden in a recent study as best country in the world for treatment of elderly. The Swedish public procurement markets for care services have been opened to competition via the system of public procurement and more recently via a system based on freedom (...)

The EU General Court rules on the boundaries of the duty to state reasons in decisions addressed to tenderers whose offers are rejected in public procurement procedures (UAB Gaumina / EIGE)
European Procurement Law Group
Of lost emails, the duty to state reasons and a dimming light in the horizon of eProcurement (T-424/12)* In its Judgment of 28 November 2013 in case T-424/12 UAB Gaumina v Institut européen pour l’égalité entre les hommes et les femmes (EIGE), the General Court has ruled once more on the (...)

The UK Government Procurement Service announces the entry into force of a new framework agreement for strategy & planning services
European Procurement Law Group
GPS’ strategy and planning framework agreement could have been fatally flawed (or the joys of copy & paste)* The Government Procurement Service (GPS) has recently announced the entry into force of a new framework agreement for strategy & planning services that gives all public sector (...)

The Swedish Competition Authority examines in its pilot study the adoption by three municipalities of the free choice system in the home care sector
Swedish Competition Authority (Stockholm)
A fair system of choice requires transparent municipal accounting* There are many reasons why municipalities with systems of choice must employ open and clear financial follow-ups for their own operations subject to competition. This is emphasized in a pilot study, where the Swedish (...)

The EU Court of Justice establishes that avoidance of litigation does not constitute an overriding reason of general interest that can be invoked in order to uphold a direct award of a concession contract (Belgacom)
European Procurement Law Group
CJEU rejects avoidance of litigation as a valid ’overriding reason in the public interest’ justifying a direct award of a concession contract (C-212/12)* In its Judgment of 14 November 2013 in case C-221/12 Belgacom, the CJEU has rejected that the avoidance of litigation can be considered a (...)

The EU Court of Justice establishes that a concession not being capable of generating substantial net revenue can still be of economic interest to undertakings located in a different member state (Comune di Ancona / Regione Marche)
European Procurement Law Group
CJEU kicks new #concessions Directive in the shins (C-388/12)* In its Judgment of 14 November 2013 in case C-388/12 Comune di Ancona, the CJEU has put forward an argument for the existence of cross-border interest in the award of (public service) concession contracts that openly challenges the (...)

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