October 2003

Anticompetitive practices

The Council of the EU adopts energy tax directive taking into account State aid policy
European Commission - DG COMP
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European Commission - DG COMP
"State aid: key elements for the agreement in the Council on energy taxation"* In October 2003, after six years of negotiation, the Council adopted the future energy tax directive. A key element for creating unanimity was the manner under which State aid policy has been taken into account in (...)

The EU General Court rejects the application for annulment dismissing the argument that the reluctance of retailers to sell products of other ice-cream manufacturers could not be attributed to the exclusivity clause (Van den Bergh Foods/Commission)
University of South Australia
Twilight of the Idols* The Van den Bergh Foods case, aka the Ice Cream case, if often cited as one of the best Article 101 TFEU judgments ever handed down by the General Court. Many praise its modern, unformalistic approach of vertical ties. They like its focus on the economic magnitude of (...)

The EU Commission extends for 5 years the REIMS II exemption enhancing competition in the cross-border mail market through third party access
Telecom Italia
"The REIMS II exemption decision: enhancing competition in the cross-border mail market through third party access"* 1. Introduction On 23 October 2003, the European Commission adopted a decision in case COMP/C1/38170 REIMS II prolongingfor an additional five years the exemption of the REIMS (...)

The Japan Fair Trade Commission renders its recommendations against participants in bidding for sewerage facility works (City of Kitakyushu)
Japan Fair Trade Commission (Tokyo)
JFTC issues recommendation to participants in bidding for sewerege facility works ordered by the City of Kitakyushu* The JFTC, following an investigation into participants in bidding for sewerage facility works ordered by the City of Kitakyushu, hereby issues the following recommendation based (...)

The Hungarian Competition Authority finds that RPM in agency agreements does not infringe competition law (Westel Mobil)
Oppenheim
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Oppenheim - Budapest
Description of the impugned case The supplier (Westel Mobil, a mobile telecommunications service provider), concluded agreements on the marketing and sale of mobile telecommunications services and discounted cell phones with different dealers; the agreements contained RPM clauses. The HCO (...)

The Japan Fair Trade Commission imposes surcharges on participants in bidding for construction works (Ito Komuten)
Japan Fair Trade Commission (Tokyo)
JFTC surcharged participants in bidding for construction works called by City of Chiba and Chiba City Urban Development Corporation* As for bids called by City of Chiba and Chiba City Urban Development Corporation (hereinafter “City of Chiba etc.”), the Japan Fair Trade Commission(hereinafter, (...)

The Japan Fair Trade Commission imposes surcharges on participants in bidding for Placing Road Traffic Signals (Nohara)
Japan Fair Trade Commission (Tokyo)
JFTC surcharged participants in bidding for Placing Road Traffic Signals etc. called by the Tokyo Metropolitan Police Department* As for bids called by the Tokyo Metropolitan Police Department, the JFTC ordered 57 participants in tendering for placing road traffic signals to pay surcharge in (...)

The Italian Competition Authority rules that exchanges of information through a third party between competing insurance companies is anti-competitive regardless of the non-concentrated nature of the market (Iama Consulting)
OECD - Competition Division (Paris)
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Telefonica (Madrid)
In 2004, two cases on exchanges of information between competitors were decided by the Italian competition authority (“AGCM” – the Autorità Garante per la Concorrenza ed il Mercato). This revived a lively debate on the conditions in which these practices should be prohibited and whether they are (...)

The European Commission announces the closure of their investigation into the supply relationship between Russian gas producer and Italian wholesaler (Gazprom / ENI)
European Commission - DG COMP
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European Commission - DG COMP
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European Commission - DG COMP
"The territorial restrictions case in the gas sector: a state of play"* 1. Introduction On 6 October 2003, the Commission services announced the closure of their investigation into the supply relationship between Russian gas producer Gazprom and Italian wholesaler ENI. Just as other cases (...)

The European Commission investigates into the gas supply contracts concluded by Algerian state-owned gas company and its main European customers (Sonatrach)
European Commission - DG COMP
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European Commission - DG COMP
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European Commission - DG COMP
"The territorial restrictions case in the gas sector: a state of play"* 1. Introduction On 6 October 2003, the Commission services announced the closure of their investigation into the supply relationship between Russian gas producer Gazprom and Italian wholesaler ENI. Just as other cases (...)

The European Commission holds that investigation into German insurance industry did not reveal sufficient threat of foreclosure through tied agents (BIPAR)
University of Oxford
"Complaint against German insurers withdrawn after Commission preliminary investigations did not reveal sufficient threat of foreclosure through tied agents"* Introduction On 6 October 2003, the European Federation of Insurance Intermediaries, BIPAR, withdrew its complaint against German (...)

The European Commission fines a cartel in the sorbates industry
European Commission - DG COMP
"Commission adopts cartel decision imposing fines in sorbates cartel"* In a decision adopted on 1 October 2003, the European Commission found that Hoechst AG, Chisso Corporation, Daicel Chemical Industries Ltd, Nippon Synthetic Chemical Industry Co Ltd and Ueno Fine Chemicals Industry Ltd (...)

Mergers

The European Commission refers to the Italian competition authorities the examination of the proposed acquisition of Italian tobacco company (Ente Tabacchi Italiani, British American Tobacco)
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European Commission - DG COMP
"Merger Control: Main developments between 1st September 2003 and 31st December 2003"* On 23 October 2003 the Commission decided to refer to the Italian competition authorities the examination of the proposed acquisition of Italian tobacco company Ente Tabacchi Italiani by British American (...)

The Slovak Antimonopoly Office cleared a merger in the sector of ultrasonic diameters and detectors with divestiture remedies (General Electric Company/Agfa)
Čechová & Partners
The operation By a decision dated 23 10 2003, the Antimonopoly Office of the Slovak Republic approved the acquisition of the direct control of the undertaking General Electric Company over the undertaking Agfa NDT GmbH and its affiliated undertakings. Company General Electric is active in (...)

The French Minister of Economy cleared a merger in the rail fastening sector with remedies, including commitment to license IP, or, if no licensee is found, to let the IP rights fall into the public domain (Delachaux/Pandrol)
French Competition Authority (Paris)
The operation Through this transaction, Delachaux acquired the sole control of Pandrol. Both companies were active in the rail fastening sector. The market(s) The product market was the rail fastening devices. On this market, different technologies may be used, each technology being (...)

The Spanish Competition Authority clears a merger in the TV broadcasting sector subject to third party access to network infrastructure, but the remedies were subsequently modified by the Council of Ministries (Retevisión/ Abertis Telecom)
RBB Economics
The operation The operation consisted of Abertis Telecom’s acquisition (through its wholly-owned subsidiary Tradia) of Retevisión. Abertis Telecom is the subsidiary of the infrastructure group Abertis Infraestructuras. Abertis Telecom operates in the telecommunications sector and holds 100% of (...)

The German Bundeskartellamt cleared a merger in the market for the production of quicklime subject to remedies, including the requirement to shut down three quicklime top loading production units (Rheinkalk/Kalkwerk Lengerich)
Baker McKenzie (Dusseldorf)
The operation On 21 March 2003 the Bundeskartellamt was notified of the proposed acquisition of a not publicly disclosed percentage of the shares of Kalkwerke Lengerich GmbH (“Lengerich”) by Rheinkalk GmbH (“Rheinkalk”). Rheinkalk is a subsidiary of the Belgian Lhoist Group (“Lhoist”), which is (...)

The Lithuanian Competition Council cleared an acquisition in the market of distribution of strong alcoholic beverages with remedies, including divestiture and application of non-discriminatory pricing (Mineraliniai vandenys/Stumbras)
Vodafone (Istanbul)
The operation By a decision dated 2 October 2003, the Lithuanian Competition Council authorized in phase II the acquisition by UAB Mineraliniai vandenys (« Mineraliniai vandenys ») of up to 100 % shares of AB Stumbras (« Stumbras »). The market(s) The relevant market has been defined by the (...)

State Aid

The European Commission launches formal investigation on measures in favour of non-profit harbours for recreational crafts in the Netherlands (Enkhuizen, Nijkerk and Wieringermee)
European Commission - DG COMP
"State aid and the effect on trade criterion The Netherlands: measures in favour of non-profit harbours for recreational crafts"* Following a complaint, on 5 February 2003 the Commission initiated the formal investigation procedure down in Article 88 (2) of the EC Treaty on the possible (...)

The Administrative Court rejects claim for damages for failure to prove the alternative course of action that would have been adopted in the absence of State aid (Kélian)
Sheppard Mullin (Brussels)
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Maersk (Copenhagen)
Brief description of the facts and legal issues A law of 1996 enabled the French government to sign agreements with undertakings in the clothing, leather, shoe and textile sectors regarding a reduction in working time, in order to avoid redundancies. In return, the French government granted an (...)

Three French Courts acknowledged State’s liability towards aid recipients for not having granted un-notified State aid (Kélian, Fontanille, Salmon Arc-en-ciel)
Université Aix-Marseille
Administrative Court of Grenoble (Tribunal administratif de Grenoble), 15 October 2003, Sté Stéphane Kélian, Case n° 0102341 Administrative Court of Clermont-Ferrand (Tribunal administratif de Clermond-Ferrand), 23 September 2004, SA Fontanille, Case n° 0101282, AJDA, 2005, p. 386 These two cases (...)

The European Parliament and Council adopt a Directive establishing a scheme for greenhouse gas emission allowance trading addressing State aid aspects
European Commission - DG COMP
"State aid aspects in the implementation of the Emission Trading Scheme"* 1. The Emission Trading Scheme The Emission Trading Scheme (ETS) plays a major role in the Commission’s Climate Change Policy. It aims at helping EU Member States to achieve compliance with their commitments under the (...)

Public sector

The French criminal supreme court upholds sentences inflicting prison, fines and damages for bid-rigging ("Le Havre lighting")
Kramer Levin Naftalis & Frankel (Paris)
Supreme Court, Criminal Chamber, 22 October 2003, M. L., Case n° 02-83372 Court of appeal of Rouen, Criminal Chamber, 25 February 2002, J.-P. B. a. o., Case n° 01/00761, Decision n° 215 (Part. I ; Part. II) Criminal Court of Le Havre, 10 January 2001 In France, criminal prosecutions against the (...)

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