October 2005

Anticompetitive practices

A Dutch Court states that a discount on sale prices agreed between retailers and suppliers associations does not constitute resale price fixing with reference to EC law (Modint)
European Commission - DG HR
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Dutch Ministry of Security and Justice
Modint was an association of textile undertakings active in the promotion of its members’ commercial interests, especially those relating to commercial transactions. Modint Credit & Finance B.V. (hereafter “MCF” ) was a company providing commercial related services to Modint. Modint members (...)

The Danish Competition Council clears a beer standard distribution agreements in the gastronomic sector subject to commitments alleviating the exclusivity effects of the agreement on the basis of Art. 81/82 EC (Carlsberg)
Danish Competition and Consumer Authority (Copenhagen)
On 26 October 2005 the Danish Competition Council granted clearance subject to commitments to Carlsberg’s supply agreements with the gastronomic sector. The Danish Competition Authority was concerned that the degree to which Carlsberg was binding its retailers might be in conflict with Articles (...)

The German Federal Cartel Office applies a small and medium-sized undertakings exemption to a cartel in the sector of brick production and finds that trade between Member States is not affected (Ziegelwerk Bellenberg Wiest a. o.)
Norton Rose Fulbright
On 25 October 2005 the Federal Cartel Office (“FCO”) decided not to take action against the intention of several small and medium-sized brick producers to conclude a cartel agreement. The FCO based its decision on the fact that only German antitrust law applied to the case, which provides for a (...)

A Portuguese Court finds that a beer distribution agreement does not appreciably restrict competition (Sociedade Central de Cervejas / Factorfina Consultores)
London School of Economics
Centralcer - Central de Cervejas, S.A. (one of the main beer manufacturers in Portugal, hereinafter referred to as “the supplier”) signed a single-branding agreement with Factorfina Consultores Lda. (hereinafter, “the purchaser”) in 1997. In exchange for ESC 7.605.000, the purchaser agreed not to (...)

A Dutch Court considers that the statutes of a farmer association containing an exclusive supply obligation do not breach Art. 81.1 EC (VTN)
European Commission - DG HR
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Dutch Ministry of Security and Justice
The plaintiffs were members of the Coöperatie Voedingstuinbouw Nederland (VTN), a cooperative association of farmers in Holland. Pursuant to an exclusive supply obligation contained in VTN’s statutes, VTN’s members were compelled to sell their production of vegetables exclusively to the (...)

The US DOJ fines for $300 Million a computer chip manufacturer for price fixing conspiracy (Samsung Electronics)
Jones Day (Washington)
Samsung Electronics has agreed to plead guilty and pay a $ 300 M fine, the second largest criminal antitrust fine in U.S. history, for participating in a price-fixing conspiracy in the dynamic access random memory (DRAM) industry. According to the felony charge, the conspiracy directly affected (...)

An Hungarian Court finds the fee recommendation of a lawyers’ association incompatible with national competition provision (Debrecen City Bar of Solicitors)
Hogan Lovells
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The Debrecen City Bar is an association of local lawyers, where the membership is obligatory. The association is empowered with public rights ; it may deliver obligatory decisions and non-obligatory recommendations as well. The general assembly of the Bar issued a recommendation on lawyers’ (...)

The Portuguese Competition Authority imposes fines to 5 pharmaceutical companies for collusion in tender procedures for the provision of medical supplies to public hospitals (Abbott, Bayer, Johnson & Johnson...)
London School of Economics
In January 2005 the Portuguese Autoridade da Concorrência (hereinafter, the “NCA”) imposed a € 658,413.22 fine on five pharmaceutical companies involved in collusive practices in a public tender procedure for the purchase by the Centro Hospitalar de Coimbra (“CHC”) of 4,000 packages of chemically (...)

The Italian antitrust authority imposes a fine of 10 M € on baby milk producers on the basis of Art. 81 EC after inspections carried out by German, French and Spanish NCAs (Prezzi del latte per l’infanzia - Heinz, Nutricia, Nestlé)
Freshfields Bruckhaus Deringer (Rome)
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ASP (c/o Johnson & Johnson Medical NV - Belgium)
On October 12, 2005 the Italian Antitrust Authority (“IAA”) closed the proceeding started in July 2004 against multinational companies engaged in the production of baby milk. In its final decision, the IAA imposed fines to the following companies: Heinz and Plada (both belonging to the Heinz (...)

The French Competition Authority fines a price-fixing cartel in the essential lavender oils sector under Art. 81.1 EC (CIHEF)
White & Case (Paris)
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French Competition Authority (Paris)
In a recent decision, dated 12 October 2005 (Decision n° 05-D-55), the French Competition Council sanctioned the Comité Interprofessionnel des huiles essentielles françaises (“CIHEF”), a trade association composed of both producers and buyers of essential oils, for fixing minimum wholesale prices (...)

The Maltese Competition Commission confirms cease-and-desist order for finding of price-fixing and other collusive behaviour between undertakings operating at retail level (“Supermarkets”)
In terms of Article 13A of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ‘MCA’), the Director of the Office for Fair Trading (hereinafter referred to as ‘Director’) applied to the Commission for Fair Trading (hereinafter referred to as ‘Commission’), following (...)

The European Commission fines a motor vehicle manufacturer for infringement to Article 81EC in a parallel import case (Peugeot)
European Commission - DG COMP (Brussels)
"Parallel import of motor vehicles: the Peugeot case"* The Peugeot decision, adopted by the Commission on 5 October 2005, imposed a fine of 49.4 million euros for breach of Article 81 EC on the motor vehicle manufacturer Automobiles Peugeot SA (‘Peugeot‘), and its subsidiary Peugeot Nederland (...)

Unilateral Practices

The Hungarian NCA states that an increase in prices above the inflation by a dominant local cable operator does not amount to an abuse of dominant position (Dual-Plus)
Dentons (Paris)
The Hungarian Competition Office (HCO) led a procedure ex officio against Dual-Plus Kereskedelmi és Szolgáltató Kft. (Dual-Plus) under allegations of abuse of a dominant position on the market, manifested through price increases well above the inflation rate. It rendered its decision on October (...)

The Danish Competition Council condemns a car manufacturer for abusing its dominant position by imposing surprise inspections on spare part dealers (Mazda)
Danish Competition and Consumer Authority (Copenhagen)
On 26 October 2005, the Danish Competition Council (“DCC”) adopted a decision condemning Mazda Motor Denmark for abusing its dominant position under section 11(1) of the Danish Competition Act by informing its authorised dealers and repairers that it intended to carry out surprise inspections at (...)

The Maltese Competition Commission overturns a ruling of the Director of Office of Fair Trading and proclaims that a public body constitutes an ?undertaking’ for competition law purposes (Bargain Holidays - European Air Bargains / Malta Tourism Authority)
Article 14 of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ‘MCA’) requires the Director of the Office of Fair Trading (hereinafter referred to as ‘Director’) to examine the admissibility or otherwise of any complaint submitted to his office. Although the law (...)

The Polish Competition Authority accepts commitments from a water supply operator while stating that the operator has imposed onerous conditions which lead to unjustified profits (Krakow Water Supply and Sewage Municipal Company)
French National Research Agency (ANR)
The commented decision which was rendered on October, 14 2005 by the President of the Office for Competition and Consumer Protection (hereafter, “OCCP President” or “President of the Office”) results from the consumer complaint concerning the behaviour of Krakow Water Supply and Sewage Municipal (...)

The Hungarian Competition Council considers the refusal to supply of an undertaking allegedly in dominant position as having no negative effects on the basis of Art. 82 EC (Unilever)
Dentons (Paris)
The Hungarian Competition Council applied Article 82 of the EC Treaty in the Unilever Magyarország case. The Competition Council investigated a potential abuse of dominant position violating Article 82 originating from the reorganization (i. e. contraction) of the distribution network of (...)

The Irish National Competition Authority rejects an alleged abuse of dominance and recommends a revised approach to market access and service provision in the household waste collection service market (Greenstar Recycling)
London School of Economics
On the 30th of August, 2005 the Irish National Competition Authority (hereinafter “NCA”) delivered its findings following an investigation conducted pursuant to consumer allegations of abusive pricing practices in the field of household waste collection services and of a lack of competition in (...)

The Polish Competition Authority adopts interim measures against the telecommunication incumbent for alleged abuse of its dominant position on the market of domestic and international phone calls (Telekomunikacja Polska - TPSA)
French National Research Agency (ANR)
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Orrick, Herrington & Sutcliffe (Washington)
The interest in this decision stems from the fact that it is concerned with the adoption of interim measures, a remedy recently introduced in Polish law. In August 2005, Netia S.A., an operator alternative to Telekomunikacja Polska S.A., the historic operator in Poland (hereafter, “TP S.A.”), (...)

The Swedish Competition Authority closes predatory pricing investigation relating to procurement of services pursuant to Art. 82 EC and its Swedish equivalent (Konkurrensverket/Banverket Produktion)
Vinge (Stockholm)
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Svea hovrätt (Swedish courts)
Background During 2004, the Swedish Rail Administration (Sw. Banverket) procured services relating to the maintenance of four Swedish railway lines; Västkustbanan 1 and 2 and “Kust till Kust” 1 and 2. Banverket Produktion, which was affiliated to Banverket, submitted an offer. The price for the (...)

Mergers

The French Minister of Economics clears a merger in the sector of daily and weekly regional press with remedies, including bundling prohibition, editorial autonomy and commitments to exclude conglomerate effects (OuestFrance/Socpresse)
University Paris II Panthéon‑Assas
The operation By a letter dated 28 October 2005, the French Minister of Economy, Finance, and Employment, following the French Competition Council’s opinion dated 11 October 2005, authorised the acquisition by the Société d’investissement et de participations (SIPA” or “the party”) of three press (...)

The Dutch Competition Authority clears a merger in the sector of insurance subject to a remedy to refrain from regional differentiation, but the Rotterdam Court overturns the decision for lack of sectoral competence (CZ - OZ)
Netherlands Authority for Consumers & Markets (The Hague)
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Eversheds Sutherland (Amsterdam)
The operation CZ and OZ provide for privately funded and supplementary insurance, as well as insurance, which is paid for by the national health insurance fund (para. 8-11). The market(s) The NMa assessed the effects of the merger in relation to the markets of (i) private insurance and (...)

The Lithuanian Competition Council cleared an acquisition in the wholesale and retail markets of press distribution with remedies, including separation of businesses and non-discrimination (Rautakirja/Lietuvos spauda)
Vodafone (Istanbul)
The operation By a decision dated 27 October 2005, the Lithuanian Competition Council authorized in phase II the acquisition by Rautakirja OY (« Rautakirja ») of 100 % shares of UAB Lietuvos spaudos Vilniaus agentûra (« Lietuvos spauda ») . The market(s) The relevant markets have been defined by (...)

The Lithuanian Competition Council clears a concentration in the wholesale and retail markets for broadband services with structural and behavioural remedies (Elion/MicroLink)
Vodafone (Istanbul)
The operation By a decision dated 27 October 2005, the Lithuanian Competition Council authorized in phase II the acquisition by Elion Ettevotted AS (« Elion ») of 100 % shares of MicroLink AS (« MicroLink ») The market(s) The relevant markets have been defined by the Council as the wholesale and (...)

The Finnish Competition Authority clears a merger in the telecommunication services market with remedies including divestment, commitments to grant access to infrastructure and hold separate commitments (Elisa/Saunalahti)
Grant Thornton (Helsinki)
The operation On 25 October 2005 the Finnish Competition Authority (Kilpailuvirasto) cleared, in a Phase II decision, a merger in the Finnish telecommunications market, in which Elisa Oyj acquired a controlling stake in Saunalahti Group Oyj. The market(s) The relevant markets in which (...)

The Turkish Competition Authority cleared a merger in the oil products market subject to third parties access to refinery facilities (Tupras - OIB)
Esin
The operation Although the main field of activity of TUPRAS is the refining business, TUPRAS is also active in markets relevant to the petrochemical sector through its activities in Gulf Petrochemical Complex. Right along with the activities in the petrochemical sector, TUPRAS is also active (...)

The Estonian Competition Authority clears a merger in phase II in the markets of wholesale broadband access and retail broadband access with divestiture remedies (Elion/MicroLink)
General Electric (Brussels)
The operation By a decision dated 21 October 2005, the ECA authorised in phase II the acquisition by Estonian company Elion (an indirect subsidiary of Swedish-Finnish telecommunications company TeliaSonera) of Estonian ICT company MicroLink (para. 1). The market(s) The relevant markets were (...)

The Norwegian Ministry of Government Administration and Reform clears without remedies a merger previously conditionaly authorised by the NCA in the oil well drilling equipment and services sector (National Oilwell/Varco)
Ernst & Young
The operation National Oilwell, Inc. and Varco International, Inc., both US corporations) merged on 11 March 2005. The Norwegian Competition Authority (NCA) was notified of the proposed merger on 14 December 2004. National Oilwell is a worldwide leader in the design, manufacture and sale of (...)

The European Commission partially clears and refers for examination to the German Bundeskartellamt an acquisition in the construction industry (Züblin/FIMAG)
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European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 January and 30 April 2006"* The proposed acquisition, which was notified on 26 August, involved the acquisition of control of the German construction company Züblin by FIMAG, the holding company of the Austrian Strabag construction group. The Strabag Group (...)

The EU Commission conditionally clears a merger in the winter sports goods manufacturing and selling (Amer / Salomon)
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European Commission - DG COMP (Brussels)
"Merger Control: Main Developments between 1 September and 31 December 2005"* On 12 October the Commission approved, subject to conditions, the proposed acquisition by Amer Group of the Salomon business segment of Germany’s Adidas-Salomon AG. Amer had entered into an agreement to acquire the (...)

The EU Commission conditionally approves a merger in the shipping industry (TUI / CP Ships)
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European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 January and 30 April 2006"* On 24 August the TUI company notified its intention to acquire the Canadian shipping company CP Ships. TUI owns the Hapag-Lloyd shipping company. Both CP Ships and Hapag-Lloyd are active in container liner shipping. After the (...)

The Austrian Federal Competition Authority clears the partial acquisition of a local airline by a tourism company subject to commitment not to ask for or accept preferential treatment in ground handling fees (Kaernten Tourismus/Styrian)
Université de Genève
The operation In October 2005, the Austrian Federal Competition Authority (BWB) cleared the acquisition of 42.85% of Styrian Airways AG (Styrian) by Kaernten Tourismus Holding (Kaernten Tourismus), subject to remedies. Amongst other interests, Kaernten Tourismus holds a majority share of (...)

The European Commission publishes a study on merger remedies reviewing the design and implementation of merger commitments accepted by the Commission in the five-year period 1996 to 2000
European Commission - DG COMP (Brussels)
"Merger Remedies Study"* DG Competition has recently published the Merger Remedies Study, a majorex postevaluation exercise. The Study reviewed the design and implementation of merger commitments accepted by the Commission in the five-year period 1996 to 2000. The objectives of the Study were (...)

State Aid

The Lithuanian Supreme Administrative Court rules that the local tax administrator adopted a legitimate decision in refusing to grant an exemption to the payment of delay charges without referring to State aid rules (Tieskelis)
Raidla Lejins & Norcous
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Valiunas Ellex (Vilnius)
Factual background In 2001, in the light of the economic situation, the Lithuanian Parliament approved legislation allowing the grant of State aid to undertakings that had entered into tax loan agreements by releasing them from payment of delay charges. The undertaking Tieskelis AB applied to (...)

A French Court rules that the use of a tax on certain advertising expenses, which finances modernization projects in the sector of the general press, is a State aid and is illegal for lack of notification (Auchan France)
Schmitt Avocats
By decision of 25 October 2005, the Administrative Court of Appeal of Douai ruled that the use of the Tax on certain advertising expenses, which mainly finance the Found for Modernization of the Daily Press for general and political information, is a state aid in the meaning of Article 87 EC (...)

The Danish Competition Authority examines the prices paid by a municipality for the services provided by private companies in the field of home care and judges that it adequately compensated the private service providers (Rødovre Kommune justerer hjemmehjælpsydelser)
Lexxion Publisher
Factual Background The Danish Competition Authority (DCA) found that a Danish municipality had fixed its prices for home care below the actual cost level. Thereby, the municipal service provider was found to be in receipt of State aid falling under the Danish Competition Act. The municipality (...)

The Danish Competition Authority examines the prices paid by a municipality for the services provided by private companies in the field of home care and judges that it adequately compensated the private service providers (Fritvalg - Sundeved Kommune)
Lexxion Publisher
Factual Background In the present case the Danish Competition Authority (DCA) had been informed that the municipality of Sundeved was paying too low a price for the services provided by private companies in the field of home care. Summary of the Court’s findings The DCA stressed that under (...)

The Danish Competition Authority examines the prices paid by a municipality for the services provided by private companies in the field of home care and judges that it adequately compensated the private service providers (Fritvalg - Helle Kommune)
Lexxion Publisher
Factual Background In the present case the Danish Competition Authority (DCA) examined the prices paid by the municipality of Helle for the services provided by private companies in the field of home care. Summary of the Court’s findings The DCA stresses that under Section 11a of the Danish (...)

The European Commission opens a formal investigation procedure and in the same decision adopts for the first time a suspension injunction on a tax exempt reserve fund scheme in Greece
European Commission - DG COMP (Brussels)
"Commission’s suspension injunction against illegal tax exempt fund in Greece"* On 20 October 2005, the Commission opened a formal investigation procedure and in the same decision adopted for the first time a suspension injunction on a tax exempt reserve fund scheme in Greece. Description and (...)

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