December 2007

Anticompetitive practices

A Dutch Court makes a reference for a preliminary ruling to the ECJ concerning the application of Art. 81.1 EC to concerted practice between mobile phone operators (KPN Mobile)
European Commission - DG HR
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European Court of Justice (Luxembourg)
In December 2002, the Dutch Competition Authority (hereafter the ‘NMa’) imposed fines upon five Dutch mobile phone companies for breach of Article 6 of the Dutch Competition Act (a provision equivalent to Article 81 (1) EC). The NMa found that those mobile phone operators exchanged confidential (...)

The Polish Competition Authority fines the country’s two largest fuel companies for agreeing to withdraw the universal U95 fuel from the market (PKN Orlen, Grupa Lotos)
Citibank (Brussels)
On 31 December 2007, the President of the Office for Competition and Consumer Protection (the OCCP) issued a decision imposing a fine of PLN 4.5 million (approximately EUR 1.3 million) on PKN Orlen(Polski Koncern Naftowy Orlen) and PLN 1 million (approximately EUR 300.000) on the Lotos Group (...)

The Polish Competition Authority heavely fines 85 companies for anticompetitive price fixing practices in the paints and polishing products sector (Tikkurilla Polska)
Kochanski Zieba Rapala & Partners
On 31 December 2007, the President of OCCP issued decision n° RKT-79/2007 finding one of the biggest paints and polishing products manufacturer in Poland guilty of implementing anti-competitive retail price maintenance practices. The antimonopoly procedures have been initiated in October 2007 (...)

The Polish NCA fines € 1.5 M petrochemical companies for coordination in halting production and distribution of a type of car gas ("U 95" - PKN Orlen - Grupa Lotos)
Greenberg Traurig Grzesiak (Warsaw)
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PKN Orlen
On 31 December 2007, the Polish President of the Office for Competition and Consumer Protection (“the OCCP”) fined both PKN Orlen S.A (“Orlen”) and Grupa Lotos S.A. (“Lotos”), two leading Polish oil and petrochemical companies, for a concerted practice regarding the discontinuation of the manufacture (...)

The Polish Competition Authority condemns a resale price maintenance agreement but applies leniency (Tikkurila Polska)
French National Research Agency (ANR)
On December 31, 2007 the President of the Office for Competition and Consumer Protection (hereafter: the OCCP President) issued the second decision applying leniency provisions. The first ever leniency concerned a vertical agreement between Polifarb Cieszyn-Wroclaw, a producer of paints and (...)

The Slovak competition authority fines an international cartel while granting leniency (GIS-cartel case)
Havel, Holasek & Partners (Brno)
I. Relevant facts In the following decision, the Slovak Antimonopoly Office stated that the agreement between competitors restricted competition. The competitors coordinated their behaviour by pricing, dividing the markets, maintaining market shares, and limiting themselves in contracting, and (...)

An Estonian Court rules in a criminal case concerning an attempt to fix prices, share markets and engage in collective boycott in the freight services market (Oleg Ossinovski and Spacecom)
COBALT Legal
On 21 December 2007, the Harju County Court (a court of first instance) convicted a railway freight services provider, AS Spacecom (“Spacecom”), and its management board member Oleg Ossinovski of an attempt to agree on restrictions of competition with its main competitor Eesti Raudtee (Estonian (...)

The German Federal Cartel Office imposes a fine on associations of pharmacists and pharmaceutical manufacturers for organising and accomplishing a lecture series intended to convince pharmacists to refrain from price competition (Arzneimittelhersteller)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 21 December 2007, the German Federal Cartel Office (FCO) imposed a fine on nine state associations of pharmacists, five pharmaceutical companies and the Federal Association of Pharmaceutical Manufacturers for organising and accomplishing a lecture series intended to convince pharmacists to (...)

The German Federal Cartel Office imposes fine on association of pharmaceutical companies for participating in price fixing among pharmacists (OTC pharmaceuticals)
Eberhard Karls University
I. The facts of the case The decision of the Federal Cartel Office (FCO) deals with the pharmaceutical sector in Germany. In 2004 the German market for non-prescription pharmaceuticals was further liberalized. According to the new pharmaceutical law the prices for non-prescription (...)

The Hungarian Competition Office grants immunity in proceedings concerning exclusive supply agreement in the context of a public procurement tender (Olympus)
Ernst & Young
According to its press release of 21 December 2007 in its decision concerning an exclusive supply agreement between two undertakings, the Competition Office imposed a fine of HUF 77 million (ca. € 308 000) on Kortex Mérnöki Iroda Kft., a Hungarian engineering company, while it granted immunity (...)

The French Competition Authority fines five toy manufacturers and three distributors for an anticompetitive agreement on prices (Lego)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence imposes a €37 million fine on 5 toy manufacturers and 3 distributors* Following a referral by the ministry of Economy, the Conseil de la concurrence issues a decision against five (...)

The Italian Competition Commission accepts the commitments of the oil companies under investigation for restriction of competition on the fuel market and closes the investigation (Fuel cartel)
University College London
In 18 January 2007 the Italian Competition Commission (Autorita Garante della Concorrenza e del Mercato, ‘ICC’) launched an investigation in order to examine allegations of violation of article 101 TFEU and law 287/1990 consisting in restrictions in the italian market of automotive fuels by the (...)

The Belgian Competition Council clears a local opening hours scheme for pharmacists (F.N.H. / Ordre des pharmaciens - GLEP 30)
Liège University - IEJE
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Liège University - IEJE
I. Parties This case arose from a complaint lodged by a retail pharmacy outlet (“the applicant”) before the Belgian Competition Council (“the Council”) Initially, the complaint targeted the Belgian Pharmacists Association (“BPA”), but the Council subsequently decided on its own motion to extend the (...)

The French Competition Council condemns vertical price-fixing agreements in the toy distribution sector (Toys Decision)
Simmons & Simmons (Paris)
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Hewlett Packard (Boulogne-Billancourt)
On 20 December 2007, the French Competition Council (the “Council”) fined five manufacturers (Chicco - Puériculture de France, Goliath France, Hasbro France, Lego and MegaBrands) and three distributors (Carrefour France, EPSE-JouéClub and Maxi Toys France) for entering into vertical agreements to (...)

The French Competition Authority fines five defibrillator manufacturers for agreeing to boycott a nation-wide call for tender organised by 17 hospitals (Biotronik France)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence fines five defibrillator manufacturers for agreeing to boycott a nation-wide call for tender organised by 17 hospitals.* The Conseil de la concurrence issues a decision against (...)

The Greek Competition Authority fines dairy producers and supermarkets for price-fixing infringement (Vivartia, Megval, Fage, Olympos and Rodopi)
Van Bael & Bellis (Brussels)
On 19 December 2007, the Greek Competition Authority adopted a decision concerning a price-fixing infringement committed by the major dairy producers (Vivartia, Megval, Fage, Olympos and Rodopi) and the major supermarket chains (AB Vassilopoulos, Sklavenitis, Afoi Veropouli, Carrefour, (...)

The Finnish Market Court imposes record fines on asphalt cartel
Van Bael & Bellis (Brussels)
On 19 December 2007, the Finnish Market Court found seven construction companies guilty of having participated in a market-sharing and bid-rigging cartel in the asphalt sector in Finland. The Court found that the cartel had been active during the period of 1994-2001 and had affected public and (...)

The European Commission prohibits multilateral interchange fees for cross-border card payments in the EEA (MasterCard)
European Commission - DG COMP
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European Commission - DG COMP
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European Commission - DG COMP
"Commission prohibits MasterCard’s multilateral interchange fees for cross-border card payments in the EEA"* On 19 December 2007 the Commission adopted a decision prohibiting MasterCard‘s multilateral interchange fees (MIF) for cross-border card payments with MasterCard and Maestro-branded (...)

The UK Office of Fair Trading brings for the first time criminal charges based on the Enterprise Act of 2002 for cartel offence (Marine Hoses Cartel)
WTG Events
On 19 December 2007, the Office of Fair Trading (OFT) charged three UK businessmen with cartel offence under the Enterprise Act. This is the first time that charges have been brought for the cartel offence which came into force in 2003. The three men were arrested at the airport, where they (...)

The UK OFT initiates criminal proceedings against cartel members for the first time in its history following unprecedented levels of co-operation with US authorities (Marine Hoses Cartel)
Bond Dickinson
On 19 December 2007, the British Office of Fair Trading (“OFT”) announced that an oil industry executive trio was charged with cartel offences under the Enterprise Act 2002 (the“Act”). This is a historic move for the OFT as it uses its powers under the Act for the first time since the Act came (...)

The French Competition Council applies its leniency programme for the second time (Allied Arthur Pierre, Maison Huet)
Van Bael & Bellis (Brussels)
On 18 December 2007, the French Competition Council imposed fines totalling more than € 2 million on twelve removal companies for their involvement in a price-fixing and market-sharing cartel, but granted total immunity to two companies which had revealed the existence of the cartel. The (...)

A Dutch Court holds anticompetitive the termination of a dealer agreement for non-compliance by the retailer with the recommended retail prices (Design v. Eastborn Slaapsystemen)
European Commission - DG HR
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European Court of Justice (Luxembourg)
MF Design is one of the three hundred retailers in the Netherlands selling bedroom necessities manufactured by Eastborn Slaapsystemen (hereafter “Eastborn”). Eastborn used to issue recommended retail prices, which were published in its price catalogue. In 2004, MF Design announced on its website (...)

The French NCA applies for the second time leniency and highlights discrepancy with EC competition law on concerted practices’ burden of proof ("Removals cartel")
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Orrick, Herrington & Sutcliffe (Paris)
Summary of the decision Following an investigation with dawn raids and seizures initiated further to a leniency application, the French Competition Council has sanctioned a horizontal cartel between twelve companies in the sector of national and international removals to and from France, (...)

The Hungarian Competition Authority invokes cartel rules and leniency policy with regard to an exclusive distribution agreement in the healthcare sector (Kortex / Olympus)
Van Bael & Bellis
On 18 December 2007, the Hungarian Competition Authority (“GVH”) fined Kortex Mérnöki Iroda Kft. (“Kortex”), a company specialised in the construction of hospitals and the distribution of medical equipment, HUF 77m (approximately € 300,000) for concluding an anti-competitive agreement with Olympus (...)

The French Competition Council fines € 3.3 million 5 companies for sharing information and agreeing on prices in public bids in the sector of aerial navigation (Thales, Ineo, Spie)
TokyWoky
The 18th of December 2007, the French « Conseil de la Concurrence », applying L. 420-1 of the Commercial Code, condemned 5 companies to pay a € 3.3 million fine for sharing information and agreeing on prices while responding to public procurement calls for tenders organised by the STNA (technical (...)

The Italian Supreme administrative Court reduces, on the basis of an innovative analysis of the reliability of the documentary evidence, the duration of an anticompetitive agreement in the gaming and betting market (Lottomatica-Sisal)
Bonelli Erede (Rome)
On 17 December 2007 the Italian last instance administrative Court (“Consiglio di Stato -Consiglio di Stato”) decided on the appeal brought by Lottomatica and Sisal against the judgement of the first instance administrative Court which had upheld the Italian competition Authority’s decision. In (...)

The Spanish Competition Commission re-opens proceedings against financial institutions for allegedly subordinating the granting of mortgages to the subscription of other insurance related services (Entidades de crédito)
Hogan Lovells (Madrid)
On 12 December, 2007, the Investigatory Directorate of the National Competition Commission ("IDNCC") formally re-opened a sanctioning proceeding against several banks and saving banks for allegedly conditioning the concession of mortgages to the subscription of certain guarantees (life (...)

The French Competition Authority accepts some commitments to address competition concerns on the sector of distribution of medicines (GlaxoSmithKline and Pfizer)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Distribution of medicines: GlaxoSmithKline and Pfizer commit themselves in front of the Conseil on the operating of their medicine quota system for wholesale distributors.* History of the case Following (...)

The Italian Council of State annuls Italian Competition Authority’s decision in technical gases cartel cases (Air Liquide, Sapio, Siad, Sol, Rivoira, Linde, Son, Sico)
Van Bael & Bellis (Brussels)
In a recently published judgment of 11 December 2007, the Italian Council of State (“ICS”) has handed down its ruling on the appeals presented by several companies and the Italian Competition Authority (“ICA”) against the judgment of the Lazio Administrative Tribunal (“LAT”) in the industrial gases (...)

The Italian Council of State partially annuls a judgment in the disinfectants cartel case (AstraZeneca, Meda Pharma)
Van Bael & Bellis (Brussels)
In a recently published judgment of 11 December 2007, the Italian Council of State partially annulled the judgment of the Lazio Administrative Tribunal upholding the decision of the Italian Competition Authority in the Disinfectants cartel case. The Council of State entirely upheld the appeals (...)

The Hungarian NCA condemns the internal codes of the Chamber of architects and inflicts a € 20.000 fine (Magyar Építész Kamara)
King’s College (London)
On 11 December 2007, the Gazdasági Versenyhivatal, (GVH, competition authority of Hungary) adopted an infringement decision establishing that several provisions of the Code of Ethics and Discipline, the Code of Tariffs and the draft Code of Competition of Magyar Építész Kamara (MÉK, Hungarian (...)

The UK OFT having issued a statement of objections alleging that supermarkets and dairy processors colluded to fix the prices of milk, cheese and butter, some of the concerned undertakings agree to pay individual penalties collectively reaching nearly € 150 M ("Supermarkets and dairies price fixing")
Compass Lexecon (London)
Summary The OFT has issued a Statement of Objections alleging that certain supermarkets and dairy processors colluded to fix the prices of milk, cheese and butter,. Some of those players have now admitted their involvement and have agreed to pay individual penalties that collectively reach (...)

The UK OFT employs a form of direct settlement and agrees over € 155 M penalties in dairies cartel case (Asda, Dairy Crest, Safeway, Sainsbury’s)
University of East Anglia - CCP (Norwich)
Background On 20 September 2007, the UK’s Office of Fair Trading (OFT) issued a Statement of Objections (SO) in which it provisionally found evidence of collusion on the retail price of certain dairy products between a number of large supermarkets and dairy processors. The SO found that these (...)

The Japan Fair Trade Commission imposes surcharges on participants in bidding for high and medium pressure gas pipe related works (Sumitomo Metals Pipe & Tube and Nippon Steel)
Japan Fair Trade Commission (Tokyo)
Surcharge Payment Order issued to bidders for high pressure gas pipe related works procured by Tokyo Gas Co., Ltd., and medium pressure gas pipe related works procured by Osaka Gas Co., Ltd. * The Japan Fair Trade Commission (JFTC) had conducted investigations against the bid participants for (...)

A German Court rules on the exclusive iPhone distribution agreements (Apple/T-Mobile)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 4 December 2007 the German Regional Court of Hamburg issued a decision on the compatibility with competition law and the law against unfair practices of the exclusive distribution agreement concluded between the German mobile network operator T-Mobile and the American multinational (...)

The Hungarian Competition Authority condemns an RPM scheme concerning navigation devices and PDA software (Navi-Gate)
Oppenheim
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Oppenheim - Budapest
Description of the impugned case A number of distribution agreements by Navi-Gate for the sale of navigation devices and PDA software contained straightforward RPM clauses. Albeit certain agreements contained the express term « recommended » prices, the HCO found that the language of the (...)

The Hungarian Competition Council imposes a fine for resale price maintenance, prohibits recommended retail prices amounting to vertical price fixing but terminates proceedings against distributors not actively participating in the infringement in the markets of PNA devices and PDA navigation software (Navi-Gate)
Ernst & Young
The Hungarian Competition Office fined Navi-Gate Kft HUF 43 million (ca. EUR 170 000) for entering into illegal vertical agreements with sub-distributors fixing the retail price of Garmin navigation (PNA) devices and the I-Go navigation software for PDA devices. Although the investigation was (...)

The German FCO imposes heavy fines on seven liquid gas companies (Drachen-Propangas, Friedrich Scharr, Progas, Primagas, Sano-Proban, Tyczka Energie, Tyczka Totalgaz)
Van Bael & Bellis (Brussels)
In December 2007, the German Federal Cartel Office (FCO) imposed fines totalling almost € 208 million on seven companies active in the liquid gas sector and their managers for participating in an anti-competitive customer-sharing arrangement. The companies concerned, which represent (...)

Unilateral Practices

The Slovak Competition Authority imposes a fine for abuse of dominant position in the telecommunication market (Slovak Telekom)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 27 December 2007, the Slovak Antimonopoly Office imposed a fine of 525.8 million SKK (approximately € 15.5 million) on Slovak Telekom for abusing its dominant position in the telecommunication market under both Slovak and EC competition law by charging its competitors unfair interconnecting (...)

The Danish High Court upholds NCA’s decision, which found that the national postal carrier incumbent had abused its dominant position on the market for unaddressed mail by applying different prices to its own customers and the former customers of a competitor (Post Danmark)
Danish Competition and Consumer Authority (Copenhagen)
On 21 December 2007, the Danish Eastern High Court upheld a decision by the Danish Competition Appeals Tribunal according to which the national postal operator, Post Danmark, had abused a dominant position on the market for unaddressed mail by charging different prices to its own customers (...)

The German Parliament reforms the Competition’s Restraints Act in order to fight against price abuses in the energy and food trade sectors
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
The German parliament voted on a reform to the Act against Restraints of Competition (ARC) which is inter alia aimed at improving the fight against price abuses by companies in the energy and food trade sectors. Both reforms are unrelated to each other even though both were intensively (...)

The Polish Competition Authority fines the largest telecom operator a record fine of € 20 M for abusing its dominant position on the Internet access market (Telekomunikacja Polska)
Allen & Overy (Warsaw)
On 20 December 2007 the President of the Polish Office for Competition and Consumer Protection (OCCP) issued a decision imposing a fine of PLN 75 million (approximately EUR 20 million) on Telekomunikacja Polska S.A. (TPSA), the incumbent telecom operator in Poland, for abusing its dominant (...)

The Brussels Court of Appeal annuls the interim decision of the President of the Competition Council on the telecom incumbent’s bundled tariffs (Belgacom)
Oracle (Brussels)
Background information Belgacom used to be the autonomous public-sector company that ruled the government monopoly in telecommunications. This was the case until 1994, when the company changed into a “société anonyme”, and the liberalization of the telecom sector was initiated (which was fully (...)

The French Competition Authority orders interim measures particularly to address denigration practices implemented in the pharmaceutical sector (Arrow / Schering-Plough)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence orders Schering Plough laboratory to remind doctors and pharmacists the exact bioequivalence of its brand name drug Subutex® with competing generic drugs* Following a complaint (...)

The French Competition Authority sanctions an association of undertakings for having abused of its dominant position by conditioning the access to film distributors to certain areas (GIE Ciné Alpes)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Running of cinemas: The Conseil de la concurrence condemns the GIE Ciné Alpes for having conditioned the access to certain distributors to areas where it had a monopoly to the obtaining of exclusivity or (...)

The French Competition Council renders a landmark interim decision on competition between princeps and generics (Arrow / Schering-Plough)
Fréget - Tasso de Panafieu Avocats (Paris)
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Novartis (Basel)
By a decision of 11 December 2007, the Competition Council issued yet another decision concerning the (difficult) competition between princeps and generics at the time when the latter enter a market which becomes accessible upon expiry of the former’s intellectual property rights. Although this (...)

The French Competition Authority accepts the commitments made by the French energy incumbent to address competition concerns regarding the wholesale electricity supplies for retail sale (Direct Energie / EDF)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Deregulation in the market for electricity supplies: A new wholesale offer proposed by EDF will allow alternative retail suppliers to effectively compete with the incumbent operator’s retail sales on the free (...)

The Polish Supreme Court confirms that the Authors’ Association falls within the scope of national competition law provisions (ZaiKS)
French National Research Agency (ANR)
The Authors’ Association ZaiKS (hereafter: ZAiKS) is the biggest and the oldest music collecting management organization in Poland and a member of CISAC, i.e. the International Confederation of Societies of Authors and Composers. While at the EC level the EC Commission has condemned the use of (...)

The Higher Regional Court of Düsseldorf rules on refusal to supply case in the market for travel lodge cards
Van Bael & Bellis (Brussels)
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Practising Law Institute
In its recently published decision dated 5 December 2007, the Higher Regional Court of Düsseldorf held that a leading undertaking in the travel services market had abused its dominant position by refusing to supply to a travel lodge card supplier authorisations to issue VAT information on the (...)

The Austrian Supreme Court revokes settlement obligations by a dominant undertaking due to altered market conditions (Mediaprint/Moser Holding)
DORDA
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DORDA
Background In 1999 Moser Holding (the publisher of the Tyrolean daily newspaper "Tiroler Tageszeitung") filed an application pursuant to sec. 35 Austrian Cartel Act 1988 before the Austrian Cartel Court, alleging its competitor Mediaprint (the publisher of national daily newspapers "Krone" and (...)

A German Court implicitly applies the essential facilities doctrine in the sector of travel services credit card (Royal Bank of Scotland / Lufthansa)
White & Case (Hambourg)
In a decision dated 5 December 2007, the Higher Regional Court of Düsseldorf (the Court) ordered Deutsche Lufthansa AG (Lufthansa) to grant the permit to Royal Bank of Scotland plc. (RBS) to list the turnover tax for the travel services supplied by Lufthansa inner-Germany on its credit card (...)

Mergers

The Portuguese Competition Authority issues a clearance decision regarding an acquisition in the passenger airline services market (EasyJet / GB Airways)
PLMJ (Lisboa)
On 20 December 2007, the Portuguese Competition Authority (PCA) issued its clearance decision regarding the acquisition of GB Airways Limited (GB Airways) by EasyJet Airlines Company Limited (EasyJet). I. The Parties EasyJet is one of the biggest European airlines, a wholly subsidiary of (...)

The Lithuanian Competition Council cleared an acquisition in the wholesale and retail markets of distribution of press with certain structural and behavioural remedies (Rautakirja/Impress Teva)
Vodafone (Istanbul)
The operation By a decision dated 29 December 2007, the Lithuanian Competition Council authorized in phase II the acquisition by Rautakirja OY (« Rautakirja ») of 100 % shares of UAB Impress Teva (« Impress Teva »), increasing the shareholding from 51 % to 100 % and acquiring a single control (...)

The Lithuanian Competition Council clears a concentration in the press distribution market subject to strict remedies (Rautakirja - Impress Teva)
Raidla Lejins & Norcous
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Valiunas Ellex (Vilnius)
On 11 January 2008, the Competition Council of the Republic of Lithuania (hereinafter the “Competition Council”) conditionally cleared the acquisition of sole control in Impress Teva UAB (hereinafter “Impress Teva”), of Lithuania, by Rautakirja Oy (hereinafter “Rautakirja”), of Finland. Prior to the (...)

The Turkish Competition Authority cleared a merger in the medical devices markets subject to limitation of the non-compete obligation (GE-AMS)
Esin
The operation GE is a publicly held company that the shares of GE are being traded on New York, Boston and London Stock Exchanges. GE consists of six business lines which are GE Infrastructure, GE Industrial, GE Commercial Finance, NBC Universal, GE Healthcare and GE Money. The contemplated (...)

The Austrian Federal Competition Authority clears with remedies the formation of a joint venture in the market for recycling cooling appliances (UFH/Remondis)
NERA (Berlin)
The operation UFH Holding GmbH (UFH) is based in Vienna, Austria and is active in the market for collecting and recovering raw materials from waste and in particular collecting and recovering electrical and electronic appliances. Remondis Electrorecycling GmbH (Remondis) is a world-wide waste (...)

The UK Competition Commission requires broadcasting group to sell down its minority stake in rival (BSkyB/ITV)
Fangda Partners (Hong Kong)
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McCann FitzGerald (Dublin)
Background In November 2006 BSkyB (“Sky”), the leading pay TV-provider in the UK, purchased a 17.9% stake in ITV, one of the leading commercial free to-air broadcasters in the UK. The timing of the purchase was widely commented on given that it came within days of NTL announcing a possible (...)

The US FTC imposes civil penalty for pre-merger filing violations related stock acquisitions (ValueAct)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
The Federal Trade Commission earlier this week obtained a $1.1 million civil penalty against ValueAct Capital Partners, L.P. (“ValueAct”) for ValueAct’s failure to file the required Hart-Scott-Rodino (“HSR”) premerger notifications before acquiring additional shares of voting securities of (...)

The German Bundeskartellamt clears a merger in the gas supply market subject to the divestiture of minority stakes in two energy supply companies (E.ON Avacon/WEVG)
Baker McKenzie (Dusseldorf)
The operation On 25 September 2007, E.ON Energie AG (“E.ON Energie”) on behalf of E.ON Avacon AG (“E.ON Avacon”) notified the Bundeskartellamt of its intention to increase its stake in the equity capital of WEVG Wasser- und Energieversorgungsgesellschaft mbH Salzgitter (“WEVG”) from 10% to 50.2%. (...)

The French Minister of Economy requires in Phase I important remedies to address concerns of bundling in a merger of newspapers and magazines publishers (LVMH / Les Echos)
RBB Economics (Brussels)
On 19 December 2007 the French Minister of Economy, Finance and Employment (hereafter “the Minister”) cleared, after a “Phase I” investigation, the acquisition by the group LVMH of Les Echos S.A., publisher of the leading business newspaper Les Echos and of magazines specialised in economic and (...)

The Portuguese Competition Authority requests the examination of a merger by the European Commission (Associated British Foods)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
I. Introduction On October 11, 2007, the Portuguese Competition Authority (PCA) was notified of a concentration under which Associated British Foods, Plc (ABF) notified the acquisition of sole control over several assets and companies of GBI Holding, B.V., including in Portugal GBI, (...)

The European Court of Justice upholds the European Commission decision in the Dutch building materials case (CVK)
European Commission - DG COMP
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European Commission - DG COMP
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E.CA Economics (Brussels)
"ECJ upholds Commission decision in Dutch building materials case CVK"* On 18 December 2007, the European Court of Justice (ECJ) dismissed an appeal lodged by the Dutch firm Cementbouw against the Court of First Instance’s (CFI) judgment of 23 February 2006 in Case T-282/02 Cementbouw v (...)

The Turkish Competition Authority authorised a foreign-to-foreign merger cleared by the EC Commission subject to partly the same remedies imposed at the EC level (Owens-Saint Gobain)
Esin
The operation Owens is a USA based company active worldwide in the production and sale of glass fibre reinforcements, composite fabrics and building materials. It does not carry any manufacture activities in Turkey. Saint Gobain is a French company active worldwide in the manufacture and sale (...)

The Lithuanian Competition Council conditionally clears in phase II a merger in the wholesale market for transmission of television signals and retail multi channel subscription television market (TEO LT/Nacionalinë skaitmeninë televizija)
Vodafone (Istanbul)
The operation By a decision dated 13 December 2007, the Lithuanian Competition Council authorized in phase II the acquisition by TEO LT AB (« TEO LT ») of 100 % shares of UAB Nacionalinë skaitmeninë televizija (« Nacionalinë skaitmeninë televizija ») . The market(s) The relevant markets have been (...)

The Italian Competition Authority gives the go-ahead to the creation of a new multiutility operator with structural remedies (AEM / ASM Brescia)
Desogus Law Office (Cagliari)
A) The proposed merger The Italian Competition Authority has unconditionally approved a merger between two publicly-owned multiutility firms, AEM and ASM Brescia (ASM). According to the merger agreement, AEM shall absorb ASM and the resulting entity shall be denominated A2A. The municipality (...)

The French Minister of Economy fines for the first time a company for failure to notify a merger prior closing (Pan Fish)
Japan Tobacco International (Boulogne-Billancourt)
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Linklaters (Brussels)
By a letter dated 30 August 2006, a Norwegian company called Pan Fish informed the French Minister of Economy (the Minister) of a closed merger operation which it had failed to notify pursuant to the French merger control rules. This transaction related to the acquisition by the second world (...)

The French Minister of Economics clears a merger in the sector of regional press with remedies, including bundling prohibition (GHM/Lagardère)
University Paris II Panthéon‑Assas
The operation By a letter dated 7 December 2007, the French Minister of Economy, Finance, and Employment authorised the merger between two companies in the sector of daily and weekly regional press and Internet : Groupe Hersant Media (hereinafter « GHM ») and Groupe Lagardère (hereinafter « (...)

The Irish Competition Authority clears a merger in the market for radio stations subject to the divestment of a previously acquired station (Communicorp/SRH)
Université de Genève
The operation On 7 December 2007, the Irish Competition Authority (ICA) cleared the acquisition of three radio stations of Scottish Radio Holdings (SRH) by Communicorp subject to remedies. Communicorp’s main business interests are in radio broadcasting in Ireland as well as Eastern and (...)

The European Commission declares part of conditions imposed by Spain energy regulator on a proposed acquisition in the energy sector incompatible with EU law and requires their withdrawal (Enel/Acciona/Endesa)
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European Commission - DG COMP
"Mergers: Main developments between 1 September and 31 December 2007"* The acquisition of joint control of Endesa by Enel and Acciona was notified to the Commission on 31 May and cleared on 5 July. Under the relevant national law, Enel and Acciona requested the Spanish energy regulator (...)

The European Commission clears an acquisition in the engineering and supplying a range of energy and fired waste-to-energy plants for incinerating municipal waste (AEE/Lentjes)
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European Commission - DG COMP
"Mergers: Main developments between 1 September and 31 December 2007"* Also in December the Commission cleared the acquisition of Lentjes GmbH of Germany by Energy & Environment AG & Co KG (AEE), which is part of the Austrian A-Tec group. Both AEE and Lentjes are active in engineering (...)

The Norwegian Competition Authority approved with behavioural remedies a merger in the chickens for slaughter market (Nortura/Hå Rugeri)
Ernst & Young
The operation On 25 April 2007, the Norwegian Competition Authority (NCA) was notified 之f the acquisition by Nortura BA of 51% of the shares of Hå Rugeri AS. Nortura is a co-operative owned by approximately 30,000 farmers. Nortura is organized as a group with several subsidiary companies and (...)

The German Bundeskartellamt cleared a merger in the retail market for DIY products and hardware goods subject to remedies including the divestiture of several shops (Globus/hela Profizentren)
Baker McKenzie (Dusseldorf)
The operation On 9 August 2007 Globus Fachmärkte GmbH & Co. KG (“Globus”) notified the Bundeskartellamt of the proposed acquisition of 100% of the shares of the following businesses from Distributa Gruppe: (1) G.V.M. Gewerbe- und Verbrauchermarkt GmbH, (2) Distributa Verbrauchermarkt GmbH (...)

The European Commission clears an acquisition in the wireless telecommunications industry (Syniverse/BSG)
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European Commission - DG COMP
"Mergers: Main developments between 1 September and 31 December 2007"* In December the Commission decided to clear the acquisition by the US technology group Syniverse of the BSG Group’s wireless business, providing data and financial clearing services to wireless telecommunication companies (...)

The Portuguese Competition Authority clears a merger in the food and fuel retail distribution markets with remedies, including limitation and reduction of sale areas and not to apply for new licences (Sonae/Carrefour)
PLMJ (Lisboa)
The operation Sonae Distribuição (Sonae) is a sub-holding of the Sonae Group which operates in food and non-food retail markets. Carrefour Portugal (Carrefour) is a company of the Carrefour Group which operates in food retail markets. Sonae proposed acquiring 99,8648% of Carrefour issued share (...)

The Portuguese Competition Authority clears in Phase I with behavioural and structural remedies a merger in the large food retail distribution sector (Carrefour/Sonae)
Uria Menéndez (Lisbon)
On 27 December 2007, the Portuguese Competition Authority (the “AdC”) adopted a merger control decision according to Law 18/2003 of 11 June (the Portuguese Competition Act), providing clearance to the envisaged acquisition of sole control over Carrefour’s hypermarket chain in Portugal (...)

State Aid

The French Council of State judges that the variations in the contribution paid by users of a public service does not constitute a modification of a State aid scheme approved by the Commission (Federation nationale)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The appellant seeks the annulment of a decree relating to the calculation and the rate of a tax on slaughtering. The tax is instituted in application of a provision of the General Tax code (Article 302 bis ZD) is applied to slaughterhouse and is designed to finance the (...)

The Court of First Instance of Rome confirms, pursuant to an EC Commission’s decision, the recovery of an unlawful aid and holds that the statute of limitation set forth by Art. 15 of EC Reg. 695/1999 is also applicable to the recovery sought by national public bodies (Ericsson Telecomunicazioni)
EUJUS Law Firm (Rome)
Factual background The applicant was a major company in the telecommunications sector, and had benefited from pension contribution breaks with respect to work and formation contracts (i.e. CFL, contratti di formazione e lavoro) between 1995 and 2001. The European Commission, through Decision (...)

The French Administrative appeal court of Marseille dismisses the appeal of tax payers claiming the refund of the of the tax on meat purchases judging an absence of hypothecation of the levy to aid measure (Tax on meat purchases)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The appellants seek the annulment of the administrative tribunal of Nice decision rejecting its demand for tax paid on meat purchases. The tribunal had judged that considering that the tax had been integrated in the general budget of the State, it was not obliged to rule on (...)

The European Commission considers that tax credits for research and development activities granted by Italian government does not constitute State aid
European Commission - DG COMP
"Italy gets all clear for R&D tax credits"* In September 2007 Italy notified the Commission of a tax credit for expenditure on research and development (R&D) activities of up to a maximum of €15 million offering (i) 10% credit for R&D expenditure incurred in-house and (ii) 15% (...)

The European Commission addresses the issue of the market economy investor principle in a State aid case concerning the electronic communications sector (Citynet Amsterdam)
European Ombudsman
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European Commission - DG ECFIN
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European Commission - DG COMP
"Citynet Amsterdam: an application of the market economy investor principle in the electronic communications sector"* I. Introduction Broadband networks are considered to be the key infrastructure of the knowledge economy. Access to broadband services has become vital for businesses and (...)

The European Commission approves State aid granted by Ireland for enterprise zones designated by the 1995 and 1997 Finance Acts
European Commission - DG COMP
"IRELAND: Enterprise zones designated by the 1995 and 1997 Finance Acts"* The European Commission have approved the above scheme on 16.December 1997. The tax-reliefs available in the areas in question include capital allowances (accelerated and free depreciation), double rent allowance and (...)

Procedures

The Italian Parliament adopts a class action law (Budget Law n°244)
Van Bael & Bellis (Brussels)
From the beginning of 2010, Italian consumers have been able to bring or join a collective damages action regarding unlawful commercial practices (including breaches of competition rules). Indeed, following two years of amendments being made to the legislation in question and its postponed (...)

The French Administrative Supreme Court rules that it has jurisdiction to impose compensations to undertakings punished by competition authorities as they have misled a contracting authority during public procurement award procedures (SNCF vs. Campenon-Bernard and others)
Schmitt Avocats
The commented decision presents a new important step regarding the integration of competition rules into French administrative law and its consequences for administrative litigation rules. It also puts an end to an important dispute opposing SNCF, the French public railways operator, and (...)

The EU Member States adopts a new treaty
Van Bael & Bellis (Brussels)
Following its ratification by the Czech Republic, the last Member State to do so, the Treaty of Lisbon enters into force on 1 December 2009. On 30 October 2009, at the European Council, EU leaders agreed to offer the Czech Republic an opt-out from the EU’s Charter of Fundamental Rights, the same (...)

The Luxembourg Government proceeds to consultation following the submission of the draft bill aimed at reforming the 2004 Competition Act (Draft Bill n° 5816)
MOYSE BLESER law firm
In December 2007, the Minister of the Economy and Foreign Trade (Minister) submitted a draft bill to Parliament (Draft Bill) with the aim of reforming the law of 17 May 2004 on competition, as amended (the Law on Competition). Although no serious assessment was made concerning the three years (...)

The Luxembourg Government issues a draft bill for a more efficient competition policy, with, inter alia, a single competition authority (Draft Bill n° 5816)
MOYSE BLESER law firm
On 10 December 2007, the Minister of the Economy and Foreign Trade submitted a draft bill (No 5816) (the Draft Bill), proposing substantial revisions to the law of 17 May 2004 on competition (the Law on Competition). Under the Draft Bill, the substantial rules (relating to the prohibition of (...)

Le Conseil de la concurrence applique pour la première fois l’arrêt Akzo sur le legal privilege (Défibrillateurs cardiaques implantables)
Ashurst
Article published in French in Concurrences, N° 1-2008, pp. 176-178. Il était reproché à cinq sociétés de s’être entendues afin de faire échouer l’achat groupé de défibrillateurs par 17 Centres Hospitaliers Universitaires (CHU). Plusieurs moyens de procédure avaient été soulevés par les parties dont la (...)

Regulatory

The French Parliament adopts legislative initiative on the development of competition for the benefit of consumers
Van Bael & Bellis (Brussels)
On 20 December 2007, the French Parliament adopted a new law on the development of competition for the benefit of consumers, which was promulgated on 3 January 2008 (see Law No. 2008-3 of 3 January 2008 on the development of competition for the benefit of consumers, French Official Journal, 4 (...)

The UK OFT makes recommendations to government on UK medicines distribution
Linklaters (London)
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Linklaters (London)
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Linklaters
On 11 December 2007, the OFT issued the results of its market study into the distribution of medicines in the UK. The review was initiated after Pfizer announced it would be introducing a Direct to Pharmacy (DTP) distribution model, appointing Unichem as its exclusive Logistics Service (...)

The German Federal Court of Justice finds that the Federal Network Agency has no right of participation in respect of civil litigation proceedings concerning payments for the network usage (Beteiligung der Bundesnetzagentur II)
Hengeler Mueller (Dusseldorf)
I. Background and facts of the case The claimant is a subsidiary of the Deutsche Bahn (DB) and operates the predominant part of the railway network in Germany. The defendant is a private railway company offering services in the field of railway cargo transportation. In this respect it is (...)

The French Administrative supreme Court partly annuls the natural gas regulated retail price as the ministerial order does not allow the incumbent to cover its average total costs (Poweo a. o.)
Université Aix-Marseille
1 The regulatory background Directive 98/30/EC followed by Directive 2003/55/EC liberalized the market by broadening progressively the category of eligible clients, authorized to choose their supplier. Pursuant to article 23-1 of Directive 2003/55/EC, “Member States shall ensure that the (...)

The UK Office of Communications publishes annual report considering the impact of the Telecoms Review and BT undertakings on the telecoms market (BT Undertakings)
Allen & Overy (London)
Introduction In 2004, the UK Office of Communications (Ofcom) conducted a strategic review of the UK telecommunications sector (the Review). The Review led to the imposition of a set of undertakings on British Telecom (BT), the UK incumbent telecoms provider (the BT Undertakings), which were (...)

The Estonian Supreme Court upholds the judgment of county court terminating the proceedings against State postal monopoly on misdemeanour charges on the grounds of an abuse of dominant position (Eesti Post)
Arnold & Porter Kaye Scholer (Brussels)
The Estonian Competition Authority fined AS Eesti Postin expedite proceedings for an abuse of dominant position (unequal treatment, fidelity rebates). Eesti Post appealed the decision. On October 3, 2007, the Supreme Court decided to partially satisfy the cassation and declared the decision of (...)

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