August 2012

Anticompetitive practices

The Polish Competition Authority changes its approach towards vertical agreements (IMS Sofa)
WKB Wierciński Kwieciński Baehr (Warsaw)
In the decision of 30 August 2012, the President of the Office for Competition and Consumer Protection (hereinafter referred to as the “OCCP President” or the “PCA”) found that the furniture manufacturer IMS Sofa was fixing prices with its distributors in respect to company’s selected products for (...)

The European Commission issues a document where it answers to the most frequently asked questions on the application of EU antitrust rules in the motor vehicle sector
Vogel & Vogel
The new Motor Vehicle Regulation and its Guidelines have raised many questions from players in the aftermarket sector. The Commission has therefore decided to publish its answers to the most frequently asked questions in a document which, as it has emphasized from the outset, is neither (...)

The Australian Competition and Consumer Commission institutes proceedings in the Federal Court in Sydney against forklift gas supply cartel (Renegade Gas)
Australian Competition and Consumer Commission
ACCC court action alleges Sydney forklift gas supply cartel* The Australian Competition and Consumer Commission has instituted proceedings in the Federal Court in Sydney against Renegade Gas Pty Ltd (trading as Supagas NSW, a privately owned company) and Speed-E-Gas (NSW) Pty Ltd (a wholly (...)

The German Competition Authority imposes fine totalling € 8.2 M for vertical resale price maintenance in tools selective distribution system (Tooltechnic)
European Commission
Germany: The Bundeskartellamt imposes Fines for Vertical Resale Price Maintenance in Tools Selective Distribution System* On 20 August 2012, the Bundeskartellamt (BKartA) imposed a fine totalling € 8 200 000 on TTS Tooltechnic Systems Deutschland GmbH (Tooltechnic). This case concerns high (...)

The UK OFT reveals that eight NHS trusts have been engaged in the exchange of commercially sensitive information (SPHA)
University of Cambridge
Competition law and the National Health Service* On 16 August 2012 the Office of Fair Trading revealed that eight NHS trusts had been engaged in the exchange of commercially sensitive information. The information related to the price each would charge self-paying patients, or patients’ (...)

The Slovenian Competition Authority fines an electricity producer and a retailer in a resale price maintenance case (GEN Energija, GEN – I)
European Commission
Slovenia: Resale Price Maintenance in Electricity Market* On 14 August 2012, the Competition Protection Office of the Republic of Slovenia (CPO) issued a decision finding that Slovenia’s second largest electricity producer GEN Energija d.o.o. (GEN Energija) and the electricity retailer GEN – I (...)

The Argentinean Federal Court of Appeals confirms fines against cartel’s members in the sector of liquid and gas oxygen used for medical purposes (Air Liquid, Messer Argentina, Praxair, AGA, Indura)
De Dios & Goyena
The Civil and Federal Court of Appeals of the City of Buenos Aires (FCA), 3rd Division, has confirmed a cartel investigation and the sanctioning imposed by the Argentine National Commission for Defense of Competition (CNDC) against certain key players in the field of liquid and gas oxygen used (...)

The Romanian Competition Council addresses new developments on the joint selling of commercial rights for football broadcasting (Romanian Football Federation)
Kinstellar (Bucarest)
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OMV Petrom
Original case In 2011, an investigation launched on the national market of media rights over football competitions brought the first case in which the investigated parties proposed commitments based on the new guidelines on commitments adopted by the Romanian Competition Council (“RCC”) in the (...)

A US Court of Appeals upholds that the filed rate doctrine applies to the federal milk marketing orders (Gerald Carlin / DairyAmerica)
Sheppard Mullin (Los Angeles)
In Agricultural Regulation, A “Flawed Rate” is Not a “Filed Rate” For Damage Purposes* Notwithstanding the general applicability of the Filed Rate Doctrine, the Ninth Circuit recently held that it does not necessarily bar producer class actions for overcharges. Whether a given rating authority has (...)

The Competition Authority of Bosnia & Herzegovina prosecutes local administration for restricting competition on the cable TV market (CATV SAT, Municipality of Bosanski Brod)
University of Technology (Tallinn)
On 7 August 2012 the Competition Authority of Bosnia & Herzegovina (KV) prosecuted a local administration and a provider of cable TV services for the implementation of an anti-competitive agreement that inhibited the local administration from granting construction permits to the potential (...)

The Henan Administration for Industry and Commerce investigates and penalises second-hand car cartel
University of Melbourne
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China Competition Bulletin (Beijing)
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Institute of American Studies
On 2 August 2012, the Henan Administration for Industry and Commerce (Henan AIC), a local bureau of the SAIC, disclosed that it had investigated and penalised a cartel in the second-hand car market in Anyang city. After receiving frequent customer complaints, the Anyang Administration for (...)

The German Competition Authority fines a confectionery manufacturer for anti-competitive exchange of information (Haribo)
European Commission
Germany: The Bundeskartellamt imposes first Fine in Sweets Case* On 1 August 2012, the Bundeskartellamt (BKartA) has imposed fines totalling € 2 400 000 on the confectionery manufacturer Haribo GmbH & Co KG (Haribo) for having infringed Article 101 TFEU and the corresponding provision in (...)

Unilateral Practices

The Turkish Competition Board decides that there is no abuse of dominant position in the ice-cream-market (Unilever Sanayi ve Ticaret Türk)
Erdem & Erdem (Istanbul)
The Competition Board (the "Board") decided that Unilever Sanayi ve Ticaret Türk A.Ş. ("Unilever") does not abuse its dominant position by refusing to sell ice cream branded "Algida" at certain points of sale and thus, deemed it unnecessary to open an investigation. Undertaking Subject to (...)

The Supreme Court of the Slovak Republic upholds Antimonopoly Office’s fine imposed on state-owned railway operator (ZSR)
Agency for the Cooperation of Energy Regulators (ACER) (Slovenia)
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Factual background On 28 August 2012, the Supreme Court of the Slovak Republic (the "Supreme Court") in its judgement No. 8Sžhpu/2/2011 rejected an appeal lodged by Zeleznice Slovenskej republiky (the "ZSR") against judgment No. 1S 222/2007 of the Regional Court in Bratislava confirming (...)

The Argentine Federal Court of Appeals decides that antitrust agency cannot issue preliminary injunctions (Shell, Argentina de Petróleo, YPF, Esso Petrolera)
University of San Andrés
In this decision, the Argentine Federal Court of Appeals on Civil and Commercial Matters, 3rd Chamber, reversed a preliminary injunction issued by the Argentine Secretary of Commerce, who is in charge of the application of Competition Law 25156. The injunction at stake established that oil (...)

The Supreme Administrative Court of Lithuania brings clearance on assessing excessive pricing under 102 Art. TFEU (Vilniaus energija)
Klavins Ellex
Vilniaus energija case is an important national precedent for at least two reasons. First, it explains in which situations prices set by a dominant undertaking may be regarded as unfair (excessive). In that context the Lithuanian courts confirmed that economic analysis is needed in order to (...)

A US District Court grants motion for summary judgment on the grounds that the plaintiffs failed to establish the element of “dangerous probability” for an antitrust claim for attempted monopolization on the market for containerized waste hauling and disposal services (All Star Carts and Vehicles / BFI Canada Income Fund)
Sheppard Mullin (Los Angeles)
Summary Judgment Dooms Attempted Monopolization Claim in Small Container Trash Hauling Market* In All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al., Case No. 2:08-cv-01816-LDW-AKT, August 1, 2012, the District Court for Eastern District of New York recently granted (...)

The Lithuanian Supreme Administrative Court repeals decision of the Lithuanian Competition Council, which recognized that energy operator breached Article 9 of the Competition law by abuse of dominant position (UAB Vilniaus energija)
Law firm of Raimundas Moisejevas (Vilnius)
Background On 6 May 2010, the Lithuanian Competition Council passed resolution, which recognized that actions of UAB “Vilniaus energija” do not correspond to the Article 9 of the Competition law that prohibits abuse of dominant position. The Competition Council claimed that UAB “Vilniaus (...)

The EU Commission publishes commitments offered by Canadian aluminum manufacturer to resolve tying allegations (Alcan)
Van Bael & Bellis (Brussels)
On 10 August 2012, the Commission published in the Official Journal commitments offered by Alcan to address the Commission’s investigation of alleged tying practices by that company. According to the Commission, its preliminary assessment indicates that Alcan has a dominant position in (...)

The Chilean Competition Tribunal rejects exclusionary behaviour in the credit reference agency market (CCS II)
Chilean Competition Tribunal (Santiago)
On 9th August 2012, the Chilean Competition Tribunal (‘TDLC’) issued its judgment on the CCS II case (Sentence 124/2012). The TDLC rejected the complaint filed by the competition agency (‘FNE’) against the Santiago Chamber of Commerce (‘SCC‘), a trade association that is the exclusive producer and (...)

The Competition Tribunal of South Africa rules on exclusionary conduct in the telecommunications industry (Telkom)
University of Johannesburg
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Centre for Competition, Regulation and Economic Development (CCRED)
Over eight years after the matter was referred, on 7 August 2012 the Competition Tribunal found Telkom had abused its dominant position in refusing to provide access to an essential facility to competitors in the form of independent Value Added Network Service providers (VANS), and in inducing (...)

The Hungarian Competition Authority initiates a competition supervision procedure against a dominant undertaking on the market for debit cards (MasterCard Europe)
Hungarian Competition Authority (Budapest)
Competition supervision procedure initiated against MasterCard Europe Sprl* The Gazdasági Versenyhivatal (GVH - Hungarian Competition Authority) has initiated a competition supervision procedure against MasterCard Europe Sprl for an alleged abuse of a dominant position. The GVH noticed that (...)

Mergers

The Belgian Competition Council conditionally clears acquisition of a provider of ground handling services by a rival (Flightcare / Swissport Handling)
Van Bael & Bellis (Brussels)
On 31 August 2012, the Belgian Competition Council conditionally cleared the acquisition of Flightcare by Swissport Handling. The parties are rival providers of ground handling services at Brussels airport. Flightcare is one of two companies licensed by the Brussels Airport Company to (...)

The Belgian Competition Council conditionally clears acquisition of a provider of ground handling services by a rival (Flightcare / Swissport Handling)
Van Bael & Bellis (Brussels)
On 31 August 2012, the Belgian Competition Council conditionally cleared the acquisition of Flightcare by Swissport Handling. The parties are rival providers of ground handling services at Brussels airport. Flightcare is one of two companies licensed by the Brussels Airport Company to (...)

The French Competition Authority clears a merger in the publishing sector (Gallimard / Flammarion)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the acquisition of the Flammarion group by the Gallimard group* The Autorité de la concurrence has cleared the acquisition of the Flammarion group by the Gallimard group, (...)

The US FTC seeks divestiture and conduct remedies before approving an acquisition in the highly concentrated market for commercial real estate information (CoStar / Loopnet)
Venable (New York)
,
Venable (Washington)
,
Venable (Washington)
After a year of scrutiny, the Federal Trade Commission (FTC) resolved its competitive concerns over the merger of two firms that provide commercial real estate (CRE) listings and other data. In April 2011, CoStar Group, Inc. announced plans to acquire LoopNet, Inc. for approximately $860 (...)

The US FTC imposes divestiture and "unusual" conduct remedies to protect the competitor after an acquisition in commercial real estate databases and information services (CoStar / Loopnet)
Weil, Gotshal & Manges (Washington)
,
Weil, Gotshal & Manges (Washington)
On April 26, 2012, the FTC challenged CoStar Group’s proposed $860 million acquisition of LoopNet and accepted a settlement that required not only divestitures, but also “unusual” additional conduct remedies. CoStar is the largest provider of commercial real estate (CRE) information services in (...)

The UK OFT accepts commitments offered by a party to a completed acquisition in lieu of referring the case to the Competition Commission (Vue Entertainment International / Apollo Cinemas)
Herbert Smith Freehills (Brussels)
In May 2012 Vue Entertainment International Limited ("Vue") acquired sole control of Apollo Cinemas Limited ("Apollo"). In its decision of 24 August 2012 published in October 2012, the Office of Fair Trading ("OFT") stated that the acquisition had resulted or may be expected to result in a (...)

The Spanish Government partially overturns the Competition Authority’s phase 2 merger decision regarding the audiovisual sector and softens the merger conditions (Antena 3 / La Sexta)
Callol, Coca & Asociados (Madrid)
On 24 August 2012 the Cabinet, using the powers granted to that end by the 2007 Competition Act, has decided to soften the conditions included in the NCC Decision. The Cabinet has acted using as legal basis Article 60 of the Competition Act, which enables the Government (the Cabinet) to amend (...)

The UK OFT decides not to refer an anticipated acquisition in the social networking industry to the Competition Commission (Facebook/Instagram)
Herbert Smith Freehills (Brussels)
In May 2012 the Office of Fair Trading (OFT) opened a merger investigation into the acquisition by Facebook Inc (Facebook) of Instagram Inc (Instagram). This was the first time a merger involving Facebook, the global colossus in the social networking industry, publicly came under the scrutiny (...)

The US FTC proposes revisions to the premerger notification rules for pharmaceutical patent licensing transactions
Crowell & Moring (Washington)
The FTC’s Proposed Revisions to the Premerger Notification Rules for Pharmaceutical Patent Licensing Transactions* Recent developments On August 13, 2012, the Federal Trade Commission (“FTC”) released proposed amendments to the Hart-Scott-Rodino (“HSR”) premerger notification rules relating to the (...)

The Chinese MOFCOM enforces telecoms regulations in anti-monopoly law merger review (Wal-Mart / Yihaodian)
Ingram Yuzek Gainen Carroll & Bertolotti
The notification for the Wal-Mart/Yihaodian transaction was submitted to China’s Ministry of Commerce on 16 December 2011. It was ultimately accepted on 16 February 2012 by MOFCOM after supplementation. At the expiration of the Phase III, or extended Phase II, period, on 13 August 2012, MOFCOM (...)

US antitrust agencies propose new Hart-Scott-Rodino merger control rules to require enhanced reporting of pharma, biological and diagnostic licenses
Thompson Hine (New York)
New FTC/DOJ position will require heightened regulatory reporting of pharma, biological and diagnostic licenses* The Federal Trade Commission and Department of Justice recently announced revisions to the Hart-Scott-Rodino (HSR) Act’s premerger notification rules to require enhanced reporting of (...)

The UK CAT rules on Competition Commission’s decision to continue investigation on a merger in the aviation sector (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

The Italian Competition Authority exerts its jurisdiction on a concentration between two firms owned by the State and conditionally clears it (CDP/Snam)
Desogus Law Office (Cagliari)
The Italian Competition Authority asserts its jurisdiction on a concentration between two firms owned by the State and conditionally clears it (CDP/Snam) By a decision made on 8 August 2008, the Italian Competition Authority has conditionally cleared the Cassa Depositi e Prestiti (CDP) (...)

The UK Competition Commission investigates the acquisition of Irish low cost airline’s minority stake in former Irish flag carrier (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

Procedures

The Paris Court of Appeal possibly puts an end to a judicial soap opera concerning investigations within press undertakings by upholding the legality of antitrust investigations on French sport newspaper (Amaury Group)
Vogel & Vogel
Referred to by the publisher of a new daily sports newspaper of practices that a competing press group implemented for driving it from the market, the Competition Authority (AdlC) conducted an investigation. At the request of its general case-handler (rapporteure générale), the Juge des libertés (...)

The Turkish Competition Authority issues a new "communiqué" on complaint procedure relating to competition infringements
Erdem & Erdem (Istanbul)
The Communiqué No. 2012/2 on Complaint Procedure Relating to Competition Infringements (the "Communiqué No. 2012/2") entered into force upon its publication in the Official Gazette dated August 23, 2012 and numbered 28390. The Communiqué was issued in order to determine the procedures and (...)

The Higher Regional Court of Düsseldorf denies third-party access to leniency applications in court proceedings (Coffee roasters)
European Commission
Germany: The Higher Regional Court Düsseldorf denies third-party Access to Leniency Applications in Court Proceedings* On 22 August 2012, the Higher Regional Court Düsseldorf issued a decision rejecting a third-party claim for access to leniency applications made to the Bundeskartellamt (...)

The Chinese State Administration of Industry and Commerce makes another attempt to define anticompetitive exercise of intellectual property rights
Qualcomm
In mid-August, 2012, the Chinese State Administration of Industry & Commerce (SAIC) released a Draft Guide on Anti-Monopoly Law Enforcement in the Field of Intellectual Property Rights in a conference open to media and public. That was the fifth draft in a series, and a newstep after three (...)

The US Second Circuit reversed grant of summary judgment on horizontal price-fixing claim (Publication Paper Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
In this case, the Second Circuit overruled a district court order granting summary judgment to a company accused of horizontal price-fixing. The plaintiffs presented direct evidence of conspiracy in the form of testimony from one of the conspirators who testified that he had reached an (...)

The US Second Circuit Second Circuit perforates Matsushita standards in reviewing price-fixing conduct by commercial papers manufactures (Publication Paper Antitrust Litigation)
Hausfeld (New york)
Seizing upon the "opportunity to clarify the application of the standards established" more than a quarter-century ago in Matsushita Electric Industrial Co. v. Zenith Radio Corp. for determining the existence of a jury question as to collusive behavior, the Second Circuit reversed a summary (...)

The US Court of Appeals for the Second Circuit overturnes the district court’s grant of summary judgment holding that the Matsushita standard does not apply in the presence of unambiguous price-fixing evidence (Publication Paper Antitrust Litigation)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
The Second Circuit was asked to determine, among other things, whether there was enough evidence for a jury to find that the alleged agreement among competitors to raise prices actually caused the price increases that subsequently occurred. 690 F.3d at 65-66. While the Court conceded that it (...)

Regulatory

The UK Office of Fair Trading issues a short form opinion clarifying the application of competition law to recommendations by two rural associations to their members concerning the prices to be charged for access to land (Broadband Wayleave Rates)
Herbert Smith Freehills (London)
Introduction The Office of Fair Trading (’OFT’) in a Short Form Opinion dated 23 August 2012 has indicated that a proposed price recommendation to be made by two rural associations, the National Farmers’ Union (NFU) and the Country Land and Business Association (CLA) (collectively the Parties) (...)

The Finnish Competition Authority publishes an extensive report on the provision of pharmaceutical products
European Commission
Finland: Report on Provision of Pharmaceutical Products published* The Finnish Competition Authority (FCA) published on 28 August 2012 an extensive report on the provision of pharmaceutical products in Finland, in which several amendments to the current regulation on the Finnish pharmacy (...)

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