August 2014

Anticompetitive practices

The Russian Competition Authority welcomes the fact that a verdict concerning the construction cartel come into force (Novgorodavtodor)
Russian Federal Antimonopoly Service
A verdict on a cartel participant came into force* A guilty verdict passed by Novgorod District Court on 14th May 2014 for creating a cartel came into force. A founder and director of “Novomost-53” Ltd., Vyacheslav Somoilov, is found guilty in committing several violations, in particular, under (...)

The Moscow Arbitration Court confirms that two undertakings have concluded anticompetitive agreements on the market of civil aviation (Rosaviatsia / Aerotrans)
Russian Federal Antimonopoly Service
Cassation Court: actions of Rosaviatsia and “Aerotrans” OJSC are unlawful* On 28th August 2014, the Arbitration Court of Moscow District dismissed cassation appeals of the Federal Air Transport Agency (Rosaviatsia) and “Aerotrans” Civil Aviation Centre for Production-Dispatching Services” OJSC. (...)

The German Competition Authority imposes fines on five providers of underground mining services for having implemented a price-fixing agreements and bid-rigging (BeMo Tunnelling, Deilmann-Haniel)
German Competition Authority
Providers of specialist mining services fined for price fixing and bid-rigging * The Bundeskartellamt has imposed fines totalling 17.4 million euros on five providers of specialist underground mining services on account of price fixing agreements and bid-rigging. The companies are BeMo (...)

The Indian Competition Commission pertains for the first time to the concept of ‘aftermarkets’ and discusses the interface between IPRs and competition law (Honda, Volkswagen, Fiat)
Indian Competition Commission
CCI Order on Car Manufacturers for Anti-Competitive Conduct* Facts: Information was filed under Section 19(1)(a) of the Competition Act, 2002 (“Act”) initially against 3 car manufacturers alleging anti-competitive practices on part of the opposite parties (“OPs”). OP1 to OP3 were involved in the (...)

The Competition Commission of India fines 14 automobile manufacturers for implementing anticompetitive and unilateral practices on the automobile spare parts and repair market (Shamsher Kataria / Honda Siel)
Jindal Global University
In the month of August, China fined 12 Japanese auto parts makers a total of over US$200 million for price fixing, the maximum amount imposed for violating the anti-monopoly law thus far. The National Development and Reform Commission (NDRC) stated that the companies were found to have (...)

The German Competition Authority imposes fines on a mattress manufacturer for having imposing resale price maintenance on retailers (Recticel Schlafkomfort GmbH)
German Competition Authority
First fine imposed for resale price maintenance in mattress case* The Bundeskartellamt has fined Recticel Schlafkomfort GmbH 8.2 million euros on account of imposing resale price maintenance on retailers selling its products. From July 2005 to December 2009 representatives of Recticel agreed (...)

The Hungarian Competition Authority imposes fines on seven undertakings for having implementing an anticompetitive agreement in the car refinishing paints used in domestic damage calculation software market (Autocolor Festékgyártó és Forgalmazó Kft)
Hungarian Competition Authority (Budapest)
Press Release published on the official website of the Hungarian Competition Authority. GVH decision is made in the car refinishing paints agreement* The Gazdasági Veresenyhivatal (GVH – the Hungarian Competition Authority) stated that importers of car refinishing paints and an undertaking (...)

The Croatian Competition Agency imposes fines on four companies for having implemented an anticompetitive vertical agreement (Dukat and Konzum / Kutjevo and KTC)
Croatian Competition Agency
Press Release published on the official website of the Croatian Competition Agency . Fines for Dukat and Konzum, Kutjevo and KTC* The Croatian Competition Agency declared the agreements entered into by Dukat and Konzum, and Kutjevo and KTC, null and void. At the same time it imposed sanctions (...)

The Chinese NDRC imposes record fines and applies explicitely for the first time its leniency program (Automotive component suppliers’ cartel)
AnJie Law (Beijing)
Note of Caution: Record Fines on 12 Japnese Auto Parts and Bearing Manufactures - Analysis of the NDRC’s Penalty Decision and Countermeasures of Companies* Within six years of implementation of China’s Anti-Monopoly Law, the China’s law enforcement agency responsible for supervising price (...)

The Russian Competition Authority fines several providers of last resort for cartel (Nurenergo)
Russian Federal Antimonopoly Service
Providers of last resort must transfer illegally obtained income - over 512 million RUB – to the budget* On 19th August 2014, the Federal Antimonopoly Service (FAS Russia) found that providers of last resort violated the antimonopoly law: “Dagestan Energy Supplier” OJSC, “Nurenergo” OJSC, (...)

The Moscow Arbitration Court confirms the decision of the Russian Competition Authority sanctioning a cartel on the fish caught market (Pollock)
Russian Federal Antimonopoly Service
Cassation Court confirmed legitimacy of FAS decision on the Pollock cartel* On 19th August 2014, the Federal Arbitration Court of the Moscow District supported the judgment of Moscow Arbitration Court and the ruling of the 9th Arbitration Appeal Court that had pronounced legitimacy and (...)

The US Court of Appeals for the Second Circuit denies Government’s en banc petition in Munibonds Statute of Limitations Case and confirms the limitation of the payment theory (Grimm)
GeyerGorey (Washington)
Second Circuit Denies Government’s En Banc Petition in Munibonds Statute of Limitations Case* In its first Munibonds trial in 2012, the Antitrust Division convicted three former General Electric executives for rigging bids to suppress interest rates paid to municipalities on funds they raised (...)

The Russian Competition Authority fines for the first time an ordering party for bid-rigging (Vodokanal)
Russian Federal Antimonopoly Service
For the first time Kemerovo Office of FAS fined an ordering party at competitive bidding* On 12th August 2014, the Office of the Federal Antimonopoly Service in the Kemerovo region (Kemerovo OFAS Russia) fined “Vodokanal” Ltd. (Leninsk-Kuznetsky) for violating the competitive bidding procedures. (...)

The Turkish Competition Authority fines private teaching institutions for forming a cartel to fix fees and discount rates (Tokat Dershaneleri)
University of Sussex
This case note analyses the decision of the Turkish Competition Authority (TCA) in which it has fined five private teaching institutions operating in the city of Tokat on the grounds that they formed a cartel to fix fees and limit discount rates for their services between the years 2009 and (...)

The Moscow Arbitration Appeal Court confirms the decision of the Russian Competition Authority sanctioning a tenderer for bid-rigging (Rosgosstrakh)
Russian Federal Antimonopoly Service
Appeal Court supported the antimonopoly authority in a dispute with Rosgosstrakh* The 10th Arbitration Appeal Court (Moscow) confirmed legitimacy of a determination issued by Saratov OFAS and a decision made by FAS Russia on a case against “Rosgosstrakh” Ltd. Earlier Saratov OFAS considered a (...)

The US District Court for the Northern District of California rejects the $324.5 million settlement in the class action following the DOJ civil lawsuit for a per se violation (High-tech wage collusion)
GeyerGorey (Washington)
The Unusual Hi-Tech Hiring Collusion Case: Judge Rejects Proposed Settlement; DOJ Brought Civil “Per Se” Cases* Last Friday Judge Lucy H. Koh issued an unusual ruling in a somewhat unusual case. The ruling was unusual in that the court rejected a proposed settlement in the hi-tech wage (...)

A US District Court holds that NCAA restrictions on college players exploiting and receiving licensing revenue from the use of their names, images and likenesses violates antitrust law (O’Bannon / NCAA)
Constantine Cannon (New York)
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Constantine Cannon (New York)
NCAA’s Loss In O’Bannon Trial May Be Only A Partial Victory For Competition* Although competition scored a win on Friday in the student athletes’ antitrust suit led by former UCLA basketball player Ed O’Bannon against the NCAA, it wasn’t a complete blowout. Judge Claudia Wilken of the U.S. (...)

U.S. Court finds that an athletics association’s rules restricting payments to student-athletes violate antitrust laws (O’Bannon v. NCAA)
Rutgers University
On August 8, 2014, in O’Bannon v. National Collegiate Athletic Association (NCAA), Judge Claudia Wilken of the U.S. District Court for the Northern District of California found that the NCAA violated the antitrust laws by enacting rules that prevented student-athletes from being paid for the use (...)

The Division of Cartels of the Antimonopoly Office of the Slovak Republic imposes fines on ten undertakings for having implemented anticompetitive agreements on public procurement market
Slovak Competition Authority
The Antimonopoly Office of SR sanctioned the parties to public procurements financed by EU funds for a cartel* On 7 August 2014 the Antimonopoly Office of SR, Division of Cartels issued a decision imposing fines on ten undertakings for concluding four cartel agreements grounded in coordination (...)

The Hungarian Competition Authority imposes fines of € 1 million on one producer of TV and computer monitor tubes for having implementing anticompetitive practices (Samsung SDI / LG Philips Displays)
Hungarian Competition Authority (Budapest)
Press Release published on the official website of the Hungarian Competition Authority. Fine imposed by the GVH for restrictive agreement* The Gazdasági Versenyhivatal (GVH – the Hungarian Competition Authority) stated that Samsung SDI (Samsung SDI Co. Ltd. in joint and several liability with (...)

The Moscow Arbitration Court confirms the decision of the Russian Competition Authority concerning a bid-rigging case at an auction for allocating crab-catching quotas (TD DMP)
Russian Federal Antimonopoly Service
Crab catchers have bitten at collusion* The Federal Arbitration Court of the Far East District fully reversed the rulings of Appeal Court invalidating the decision of Primorie OFAS on a bid-rigging case at an auction for allocating crab-catching quotas. The open auction on fixing quotas for (...)

The Hungarian Competition Authority finds that several importers of car refinishing paints concerted their practices and fixed prices (Alami, Autocolor)
European Commission
Hungary: Decision adopted in Car Refinishing Paints Case* On 1 August 2014, the Hungarian Competition Authority (GVH) adopted a decision finding that several importers of car refinishing paints concerted their practices in an anticompetitive manner by fixing indirectly the average price of (...)

Unilateral Practices

The Russian Competition Authority fines a water supply company for abuse of dominance (Orsk)
Russian Federal Antimonopoly Service
Orsk Water Supply Company is fined over 4 million RUB for abusing dominance* The Office of the Federal Antimonopoly Service in the Orenburg region (Orenburg OFAS Russia) fined “Orsk Vodokanal” Ltd. over 4 million RUB for violating the Federal Law “On Protection of Competition”. The company (...)

The Russian Competition Authority concludes that a pharmaceutical company has abused of its dominance by refusing to supply medicines without any economic or technological reasons (Novo)
Russian Federal Antimonopoly Service
“Novo Nordisk” again violated the antimonopoly law* On 25th August 2014, the FAS Commission found that “Novo Nordisk” Ltd. violated Clause 5 Part 1 Article 10 of the Federal Law “On Protection of Competition” by refusing to supply medicines without any economic or technological reasons. Earlier FAS (...)

The Arbitration Court of the North Caucasus confirms that an electricity provider has abused of its dominance (NESK)
Russian Federal Antimonopoly Service
“NESK” OJSC violated the antimonopoly law* On 20th August 2014, the Arbitration Court of the North Caucasus District confirmed legitimacy of the decision issued by the Office of the Federal Antimonopoly Service in the Krasnodar Region (Krasnodar OFAS Russia) with regard to “NESK” OJSC and stated (...)

The Brazilian Administrative Council for Economic Defense renders two legal opinions in investigations related to sham litigation practices (Eli Lilly do Brasil)
Tauil & Chequer (in cooperation with Mayer Brown)
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Tauil & Chequer (in cooperation with Mayer Brown)
On August 20, 2014, the General Superintendence of the Administrative Council for Economic Defense (“CADE”) rendered two legal opinions in investigations related to sham litigation practices recommending to CADE’s Tribunal: (i) the conviction of the companies Eli Lilly do Brasil Ltda. and Eli (...)

The Arbitration Court of the North-Caucasus confirms the fine imposed on an electricity provider for abuse of dominance (NESK-Elektroseti)
Russian Federal Antimonopoly Service
A million RUB fine upon “NESK-Elektroseti”* On 13th August 2014, the Arbitration Court of the North-Caucasus District confirmed legitimacy of the decision issued by the Office of the Federal Antimonopoly Service in the Krasnodar region (Krasnodar OFAS Russia) with regard to “NESK-Elektroseti” (...)

The Russian Competition Authority issues a warning against an undertaking having increased the prices on the cooled salmon market (Russian Sea)
Russian Federal Antimonopoly Service
“Russian Sea” received a warning from FAS* The Federal Antimonopoly Service (FAS Russia) issued a warning to “Russian Sea” after some mass media had published information about a sharp increase of ex-work price for cooled salmon. On 12th August 2014, the Head of FAS Department for Control over (...)

The Competition Commission of Pakistan issues an opinion aiming at eliminating the discriminatory application of Inland Freight Equalization Margin
University College London
Opinion In terms of its opinion issued on the 7th of August 2014, the Competition Commission of Pakistan (CCP) advised the Oil and Gas Regulatory Authority (OGRA) and the Ministry of Petroleum and Natural Resources (MNPR) to eliminate discriminatory application of Inland Freight Equalization (...)

The Indian Competition Appellate Tribunal upholds that the relevant product market determined in case of abuse of dominance shall remain broader than in case of merger (National Stock Exchange of India)
Eastern Book Company
India – Competition Appellate Tribunal on determination of relevant product market* In its order passed on 5th August, 2014 the Indian Competition Appellate Tribunal upheld the decision given by the Competition Commission of India (CCI) holding the National Stock Exchange of India Ltd. (NSE) (...)

A US Court of Appeals rules that one firm’s ability to break into the relevant market does not foreclose the possibility that another company monopolized or attempted to monopolize said market (Lenox / Medtronic)
Wolters Kluwer (Riverwoods)
Monopoly Claims Can Survive Summary Judgment: Medtronic Must Defend Conduct in “Bone Mill” Market* One firm’s ability to break into the market for “bone mills” used in spinal-fusion surgery did not foreclose the possibility that medical device company Medtronic monopolized or attempted to (...)

The Moscow Arbitration Court confirms the fine imposed on oil provider having unreasonably increased retail prices for gasoline and diesel fuel in Sochi (Lukoil)
Russian Federal Antimonopoly Service
“Lukoil” subsidiary lost a claim after increasing prices* “Lukoil-Yugnefteproduct” shall pay over 14 million RUB for unreasonably increasing gasoline prices in Sochi. On 7th August 2014, Arbitration Court confirmed reasonableness of a determination issued by the Office of the Federal Antimonopoly (...)

Mergers

The Romanian Competition Council conditionally clears a merger following a market test in the sugar market (Agrana Zucker)
Romanian Competition Council (Bucharest)
The Competition Council has approved takeover of SC Lemarco Cristal SRL and SC Zaharul Liesti by Agrana Zucker GMBH in Austria* The Competition Council has authorized the economic concentration by which AGRANA Zucker GmbH took over the assets of SC Zaharul Lieşti SA and SC Lemarco Cristal SRL. (...)

The Competition Commission of Singapore clears an acquisition and concludes that a non-solicitation restriction included as part of the merger notification did not amount to ancillary restrictions to the notified acquisition (Cebu Air, SEAir)
BHP Billiton (Singapore)
On 20 August 2014, the Competition Commission of Singapore (the “CCS”) issued its grounds of decision clearing the completed acquisition by Cebu Air, Inc. (“Cebu”), of Southeast Asian Airlines (SEAir), Inc. (“SEAir”) (the “Decision”). The CCS, however, concluded that the Strategic Alliance Agreement (...)

The Russian Competition Authority fines a fishing company for failing to notify a merger (Sogra)
Russian Federal Antimonopoly Service
Fishing company jumped the gun with buying* “Sogra” Fishing Company acquired 100% share of the authorized capital of “Magadanflot-2” without preliminary approval by the Government Commission for control over foreign investments in the Russian Federation. On 18th August 2014, the Federal (...)

The Canadian Competition Bureau continues to watch over the telecommunication market (Eastlink / Bruce Telecom)
Stikeman Elliott (Ottawa)
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Stikeman Elliott (Ottawa)
Eastlink and Bruce Telecom abandon $26.5M merger amid Competition Bureau concerns* On August 15, 2014, the Competition Bureau (the Bureau) announced that Bragg Communications Inc. (Eastlink) and Bruce Telecom had terminated an announced merger, which would have resulted in the acquisition of (...)

The UK Competition and Markets Authority refuses to apply the failing firm defence to clear a merger in phase II (Alliance / IBA)
St John’s Chambers
United Kingdom Merger Control: Recent Developments in the Failing Firm Defence* On 15 August 2014, the Competition and Markets Authority (“CMA”) approved Alliance Medical Group’s completed acquisition of IBA Molecular’s radioactive medical tracer business. Although IBA’s business was loss-making, (...)

The Commission for the Protection of Competition of the Republic of Cyprus clears an acquisition in the online payment services market (GCS Holding / Ingenico)
Neocleous
On 16/07/2014, the Commission for the Protection of Competition of the Republic of Cyprus (hereinafter referred to as the “Commission”) received notification of a proposed concentration by Ingenico S.A. (hereinafter referred to as "Ingenico"), in accordance with section 10(2) of the Control of (...)

The UK Competition and Markets Authority clears an acquisition on the adherence packaging market (Omnicell / SurgiChem)
UK Competition and Markets Authority (CMA)
The Competition and Markets Authority (CMA) has cleared Omnicell/MTS’s proposed acquisition of SurgiChem.* This confirms the CMA’s provisional decision which was published last month and has been made by a group of independent CMA panel members. Omnicell, Inc./MTS Medication Technologies, Inc. (...)

The UK Competiton and Markets Authority exercises its powers to impose interim enforcement Orders with flexibility (Marston Holdings / Collectica)
St John’s Chambers
United Kingdom: Merger Control Interim Enforcement Orders* Two unusual features of the United Kingdom’s merger control regime are that notification is voluntary and there is no ‘suspension’ obligation. This means that mergers can be – and routinely are – completed without notification to and/or (...)

The Hungarian Competition Authority confirms its previous practice regarding outsourcing agreements (T-Systems Magyarország Zrt./RWE IT Magyarország)
Kinstellar (Budapest)
On 4 August 2014, the Hungarian Competition Authority („HCA”) cleared an IT outsourcing agreement concluded between T-Systems Magyarország Zrt. („TSM”) and RWE IT Magyarország Kft. („RWE IT”). In its decision, the HCA confirmed that it intends to follow its previous practice regarding outsourcing (...)

Procedures

The Lithuanian Competition Council approves Parliament’s decision to reject amendments to Competition Law
European Commission
Lithuania: The Competition Council approves Parliament’s Decision to reject Amendments to Competition Law* On 18 September 2014, the Parliament of the Republic of Lithuania (the Parliament) rejected the amendments to the Law on Competition that proposed setting a fixed maximum fine of LTL 150 (...)

The Russian Competition Authority notes competition problems in the retail prices for food products
Russian Federal Antimonopoly Service
The first results of FAS “hot line”* Majority of complaints concerned increased poultry prices After introducing bans on some food products imported from the US, the European Union, Canada, Australia and Norway, the Government of the Russian Federation instructed executive bodies to exercise (...)

The Moscow Arbitration Court confirms the fine imposed for failure to submit information (CMK)
Russian Federal Antimonopoly Service
Half a million failure to submit information* On 26th August 2014, Moscow Arbitration Court dismissed the claim of “CMK” [Stupino Metallurgical Company]” and supported a determination of the Federal Antimonopoly Service (FAS Russia). In June 2014, FAS fined “CMK” OJSC 500,000 RUB for failure to (...)

The Russian Competition Authority issues warnings to travel agencies to stop actions that could result in competition restrictions (WELL)
Russian Federal Antimonopoly Service
FAS warns travel agencies not to exercise actions that can result in competition restriction* FAS warned seven travel agencies not to exercise actions that can result in breaching the antimonopoly law: “WELL” Ltd (“WELL” network of beach-related rest agencies), “Turisticheskie Tekhnologii” Ltd. (...)

The U.S. Court of Appeals for the Federal Circuit renders a split decision regarding sham patent litigation (Tyco Healthcare / Mutual Pharmaceutical)
Jones Day (Washington)
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Jones Day (Cleveland)
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Jones Day (Washington)
The U.S. Court of Appeals for the Federal Circuit has remanded for further consideration antitrust claims accusing a patent holder of filing a sham infringement suit and a sham citizen petition with the Federal Drug Administration. The case is Tyco Healthcare Group LP v. Mutual Pharmaceutical (...)

The Maryland District Court orders production of documents in response to request from Canadian Competition Bureau (Aegis Mobile)
Norton Rose Fulbright (Toronto)
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Norton Rose Fulbright (Ottawa)
Introduction The recent decision of the District Court of Maryland rendered on 4 August 2014, concerning Aegis Mobile, LLC signals a major development in cross-border regulatory enforcement and co-operation between Canada and the United States (US). Made pursuant to the US Safe Web Act, the (...)

The Dutch government adopts the Streamlining Act Market Regulation
Nysingh (Zwolle)
This article provides a concise overview of the most important legislative changes in Dutch competition law after the entry into force of the Streamlining Act as of 1 August 2014 . Substantive changes include an increase of the turnover thresholds for mandatory merger review. Also, the Dutch (...)

Regulatory

The Austrian Competition Authority launches a sector inquiry in the telecom sector following the reduction of the market from four to three operators
Austrian Competition Authority
Significant price-increase: BWB examines telecom sector* On 12 December 2012, the European Commission has approved the acquisition of the mobile phone company Orange by Hutchison 3G, subject to conditions. After the reduction of the market from four to three participants, there was (...)

The Russian Competition Authority simplifies access to main oil pipelines and oil products pipelines
Russian Federal Antimonopoly Service
FAS simplified access of independent companies – exchange trading participants to main oil pipelines and oil products pipelines* On 1st August 2014, changes were made to the Rules for non-discriminatory access to the services of the holders of natural monopolies for transporting oil and oil (...)

Public sector

The Russian Competition Authority concludes that a department of State has breached the antimonopoly law by setting unreasonable excessive requirements to the bidders (GkNIPAS)
Russian Federal Antimonopoly Service
A violation upon a request* “GkNIPAS” Federal Treasury Enterprise violated the antimonopoly law by setting unreasonable excessive requirements to the bidders. The Federal Antimonopoly Service (FAS Russia) found that “State Treasury Aviation Systems Research-and-Testing Facility” (“GkNIPAS”) (...)

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