December 2008

Anticompetitive practices

The Polish Competition Authority condemns a resale price maintenance agreement and rejects a demand for a commitment decision (Koral and Zabka Polska)
French National Research Agency (ANR)
The present decision n° RKT-107/2008 of 31 December 2008 relates to some provisions of the cooperation agreement signed by one of the biggest ice-cream manufacturers in Poland, i.e., Przedsiêbiorstwo Produkcji Lodów “KORAL” - Józef Koral spólka jawna (hereafter: KORAL) and a chain of convenience (...)

US District Courts grapple with novel legal issues relating to Chinese companies sued in U.S. for antitrust violations (Vitamin C and Magnesite cartel)
Sheppard Mullin (San Francisco)
,
Paul Hastings (Washington)
As the world economy grows increasingly interconnected, plaintiffs’ lawyers in the US are searching for ways to sue foreign companies in US courts for anticompetitive behavior. Several recent Sherman Act cases have been brought against consortiums of partially government owned Chinese (...)

The Turkish Competition Authority decides that a price-fixing agreement between bread manufacturers does not appreciably restrict competition (Bergama Firincilari)
University of Sussex
This study analyses the decision of the Turkish Competition Authority (TCA) in which it has decided that a price-fixing agreement, which was entered into by twelve small- and medium-sized bread manufacturers in a small town in the West of Turkey, did not appreciably restrict competition even (...)

The Croatian Competition Authority holds illegal resale price maintenance obligations imposed by a wholesaler of household electronics on its buyer (M San Grupa / Rivulus)
University of Technology (Tallinn)
The respondent company M SAN Grupa d.d.(MSG) was a large wholesaler of the household electronics. The applicant company Rivulus d.o.o.(Rivulus) was buying various electronics items from MSG by placing the orders on the MSG’s website. It was then selling the goods through its own distribution (...)

The Croatian Competition Authority annulls the price-fixing agreements concluded between a mobile phone operator and its distributors (VIPnet)
University of Technology (Tallinn)
VIPnet d.o.o. (VIPnet) is a Croatian mobile telecom operator established in 1998 by the Mobilkom Austria AG. VIPnet provides its services through a network of “partners” and “wholesalers”. “Partners” sell VIPnet’s products and services directly to the final consumers on the VIPnet’s account. (...)

The Spanish Competition Authority orders an amateurs’ association to withdraw a so-called technical regulation aiming at keeping manufacturers’ prices low (ADIPAV, Holland Patines a Vela and Federación Catalana de Vela)
Cuatrecasas, Gonçalves Pereira
,
Cuatrecasas, Goncalves Pereira (Madrid)
On December 29, 2008, the Spanish Competition Authority (“SCA”) considered that Associació Deportiva Internacional de Propietaris de Patins a Vela (“ADIPAV”), a consumer association for catamarans (patines a vela), infringed Article 1 of the Spanish Competition Act by adopting a technical regulation (...)

The Bulgarian Supreme Administrative Court upholds a NCA decision evoking Art. 81.1 and 3 EC for the first time (Association of the Bulgarian insurance companies and Others - “Civil liability insurance for car drivers”)
Kinstellar (Sofia)
Parts of this article feature in another publication of the author on the same matter for e-Competition. See : Dessislava Fessenko, The Bulgarian competition authority applies for the first time Art. 81.1 EC and sanctions 14 insurance companies for fixing minimum levels (Association of the (...)

The Hungarian Competition Authority condemns vertical resale price fixing agreement concluded between a wholesaler of medicines and pharmacies but without imposing a fine (Hungaropharma)
Oppenheim
,
Oppenheim - Budapest
Description of the impugned case The case concerned a straightforward RPM arrangement, where the pharmacies, in their agreements concluded with a wholesaler of medicines (Hungaropharma), agreed to maintain (discounted) resale prices. Due to the wording and context of the arrangement, the HCO (...)

The Hungarian Competition Council prohibits restrictive clauses in cooperation agreements between a wholesaler of pharmaceutical products and pharmacies (Hungaropharma)
Ernst & Young
The Hungarian Competition Council found that cooperation agreements concluded between Hungaropharma, a wholesaler of pharmaceutical products, and a number of pharmacies contained clauses which were incompatible with Art. 81 EC and Section 11 of the Hungarian Competition Act. The Competition (...)

The German Federal Cartel Office imposes € 165 M fines against manufacturers of clay roof tiles for price fixing and applies leniency (Creaton, Pfleiderer Dachziegel, Koramic Dachprodukte, Monier, Erlus Gebr. Laumans)
Mutze Korsch Rechtsanwaltsgesellschaft
Background The building materials sector has been often involved in cartel investigations over the last decades. The German Competition Authority (Federal Cartel Office, "FCO") is currently investigating more than one case where companies within this sector are alleged to have infringed (...)

The Japan Fair Trade Commission issues cease and desist orders and imposes surcharges on two manufacturers of tft liquid crystal display module for console games, inter alia, for having exchanged informations about the selling price (Sharp and Hitachi Displays)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Order and Surcharge Payment Order against Manufacturers of TFT Liquid Crystal Display Module for "Nintendo DS" and "Nintendo DS Lite"* The Japan Fair Trade Commission (hereinafter “JFTC”) had investigated entrepreneurs manufacturing and selling TFT liquid crystal display module (...)

The Belgian NCA dismisses an action for interim measures against the granting of a public tender for the provision of self-service bike hire system (Decaux)
Brown Brothers Harriman (BBH) (Luxembourg)
,
Arendt & Medernach (Luxembourg)
Facts surrounding the case 1. On 15 March 2008, the Ministers’ Council of the government of Brussels-Capital Region invited tenders for the award of a concession for the setting-up of an automated and publicly accessible bicycle rental system in the Brussels-Capital Region for a nominal fee. (...)

The Croatian Competition Authority establishes the existence of anticompetitive practices on the market for servicing of motor vehicles (Adria Lada)
University of Technology (Tallinn)
On 24 September 2009 the Croatian Competition Authority (Agencija za zastitu trzisnog natjecanja) (AZTN) concluded its investigation on the market for distribution and servicing of motor vehicles, more specifically - the servicing agreements concluded by the exclusive distributor of Lada (...)

The Danish Competition Council finds that a transporters association violated Danish competition law by distributing certain information to its members (Dansk Transport og Logistik)
Kromann Reumert (Copenhagen)
On 17 December 2008 the Danish Competition Council found that Dansk Transport og Logistik’s distribution of certain information to its members amounted to an infringement “by object” of Danish competition law . The information concerned included: (1) several cost calculation programmes, of which (...)

The Croatian Competition Authority rules on the compatibility of the promotion campaigns of an automobile importer with the block exemption regulation (Sanabilis/Citroën)
University of Technology (Tallinn)
Citroën Hrvatska d.o.o. (Citroën) is the exclusive importer of Citroën automobiles in Croatia, which established a selective distribution network of 19 distributors and 22 retailers of original spare parts and repair service centers. One of the Citroën’s distributors Sanabilis d.o.o. (Sanabilis) (...)

The Croatian Competition Authority imposes interim measures following an assessment of the motor vehicle exclusive distribution agreement (Adria Lada v. SPID)
University of Technology (Tallinn)
Summary The Croatian Competition Authority (Agencija za zaštitu tržišnog natjecanja) (AZTN) following a complaint launched by SPID d.o.o. obliged the official distributor of “Lada” automobiles in Croatia ADRIA LADA d.o.o. to publicly announce the criteria it applies for certification of the service (...)

The French Competition Authority orders the suspension of the iPhone exclusivity on the basis of Art. 81 EC (Bouygues Telecom/Apple-Orange)
French Competition Authority (Paris)
The Conseil de la concurrence considered that the agreements entered into between Orange and Apple were likely to introduce further rigidity, to increase consumer captivity due to smartphones attraction and, through the implementation of a differentiation strategy, to reduce competition in a (...)

The Portuguese Competition Authority fines a professional association for exchanging information on bread consumer prices (Lisbon Breadmakers’ Association)
Samsung (Portugal)
According to the Notice published by the Portuguese Competition Authority - Autoridade da Concorrência - on 16 December 2008, said entity issued an infringement decision regarding the Lisbon Breadmakers’ Association - Associação dos Industriais de Panificação de Lisboa for failure to comply with (...)

The French Supreme Court dismisses the appeal of the French Minister of the Economy and confirms the Paris Court of Appeal’s decision on the absence of evidence proving the market-sharing agreement (Devin Lemarchand Environnement and Dehe TP)
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French Competition Authority (Paris)
On 16 December 2008, the French Supreme Court (the "Supreme Court") dismissed the appeal of the French Minister of the Economy (the "Minister") against a decision of the Paris Court of Appeal (the "Court of Appeal") which overturned a decision of the French Competition Council (the "Council") (...)

The Serbian Competition Authority adopts a decision against fifteen pharmaceutical companies for fixing trade conditions (Hemofarm, Galenika, Zdravlje and others)
University of Belgrade
Following a complaint by a distributor of pharmaceutical products Radakom d.o.o., the Serbian Competition Authority (“Komisija za zastitu konkurencije”) started an investigation concerning fixing of trade conditions in pharmaceutical sector against fifteen companies in Serbia : Hemofarm a.d., (...)

The Italian competition authority fines four banks for operating as a cartel in the market of public compensation for workers on the basis of art. 81 EC (INAIL Affidamento Servizio di Cassa)
The Italian Competition Authority (AGCM) fined four major Italian banks (Unicredit Banca S.p.A., Intesa Sanpaolo S.p.A., Banca Nazionale del Lavoro and Banca Monte dei Paschi di Siena) for participating in a cartel in the supply of cashiering services to INAIL, the Italian public entity (...)

A Slovak court annuls road construction cartel decision (Mota-Engil, Doprastav, Skanska, Inzenierske stavby Kosice, Strabag, Betamont)
Van Bael & Bellis (Brussels)
On 10 December 2008, the Regional Court in Bratislava annulled a decision of the Slovak Antimonopoly Office (SAO) imposing fines on the participants in a bid-rigging cartel affecting road construction in Slovakia. In December 2005, the SAO imposed a fine of SKK 1.47 billion (about € 49 million) (...)

The Romanian Competition Authority grants an individual exemption for the exclusive distribution agreements concluded by the leading chocolate producer with its distributors (Kraft Foods Romania)
University of Technology (Tallinn)
Summary The Romanian Competition Authority granted an individual exemption for exclusive distribution contracts concluded between chocolate producer Kraft Foods and its 14 distributors. Initially concerned with the risk of raising entry barriers and reduction of inter-brand competition among (...)

The Portuguese competition authority reassesses the practices of oil companies in Portugal (Report on the functioning of oil and gas markets)
Luís Silva Morais & Associados
The Portuguese Competition Authority (“Autoridade da Concorrência”, hereinafter ‘ADC’), has presented in December 2008 a new Report on the functioning of the oil and gas markets in Portugal. This new analysis corresponds to a follow-up on the previous and controversial study produced by the ADC in (...)

The French Competition Authority imposes fines of € 41.1 M on fuel companies (Chevron-Texaco, Total, Exxon Mobil, Shell)
Van Bael & Bellis (Brussels)
On 4 December 2008, the French Competition Council imposed fines totalling € 41.1 million on fuel companies of the Chevron-Texaco, Total, Exxon Mobil and Shell groups for collusive tendering in the supply of aviation fuel in 2002. Total Réunion, Total Outre Mer, Chevron Products Company, Shell (...)

The European Commission launches public consultation concerning the regime governing horizontal cooperation agreements
Van Bael & Bellis (Brussels)
On 4 December 2008, the Commission posted on its website a questionnaire for stakeholders concerning the block exemption regulations applicable to research and development agreements (Commission Regulation No. 2659/2000) and specialization agreements (Commission Regulation 2658/2000), which are (...)

The Hungarian competition authority fines EUR 10.500 the journalist association for recommended prices on the basis of both Art. 81 EC and equivalent national provision (Magyar Újságírók Szövetsége)
Hungarian Competition Law Research Centre
The Hungarian competition authority, the Gazdasági Versenyhivatal (further on: GVH) initiated an investigation against the Hungarian association of journalists, the Magyar Újságírók Országos Szövetsége (further on: MUOSZ) on the basis of s11 of the Hungarian competition act and art. 81 EC because it (...)

Unilateral Practices

The Moscow Federal Arbitration Court upholds the decision of the Russian Competition Authority prosecuting the railways incumbent for abuse of dominance on the market for the refrigerated rail transport services (Russian Railways and Refservice)
University of Technology (Tallinn)
On 14 September 2007 Russian Competition Authority (Федеральная Антимонопольная Служба) (FAS) found an abuse of dominance on the market for refrigerated rail transport services committed jointly by the Russian Railways (ОАО Российские Железные Дороги) (RZD) and its daughter undertaking Refservice (ОАО Рефсервис) . Refservice (...)

The European Commission sends statement of objections to the French incumbent electricity operator (EDF )
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 29 December 2008, the Commission confirmed that it has sent a Statement of Objections to EDF, the largest supplier of electricity in France. The Statement of Objections concerns various long-term contracts entered into between EDF and industrial customers in France, the existence of which (...)

The Greek Competition Authority condemns three shipping companies for abuse of dominant position (Samos cruises)
Hellenic Competition Authority (Athens)
There are two main points of law in this interesting decision (426/V/2008) that is worth to be mentioned. The first (1) concerns the term of “undertaking” under the provisions of competition law and the second (2) the possibility of publishing a decision of the Greek Competition Authority (...)

The Serbian Competition Authority finds abuse of dominant position on the market for TV content distribution via DTH technology (Serbia Broadband)
University of Technology (Tallinn)
Summary Serbian Competition Authority (Комисија за заштиту конкуренције) (KZK) established an abuse of dominant position on the part of Serbia Broadband (Serbia Broadband - Srpske Kablovske mreže, д.о.о. ) (SBB) that concluded exclusive distribution agreements with a number of national, regional and local TV channels (...)

The Serbian Competition Authority finds abuse of a dominant position in the market of RTV direct-to-home distribution services (Serbia Broadband II)
University of Belgrade
In its rather scarce practice in the field of abuse of a dominant position, the Serbian Competition Authority (“Komisija za zastitu konkurencije”) has for the second time adopted a decision against the leading Serbian distributor of RTV programs - Serbia Broadband (SBB). The so-called Serbia (...)

The Cypriot Commission for the Protection of Competition holds the telecommunications to have abused its dominant position in the SMS market (Thunderworx / Cyprus Telecommunications Authority)
Antoniou Advocates
By its decision 132/2008 ("the Decision") and acting on the basis of an official complaint submitted by Thunderworx Ltd ("Thunderworx") against the Cyprus Telecommunications Authority ("CYTA"), the Cyprus Commission for the Protection of Competition ("CPC") found the latter party to have (...)

The Swiss Parliament adopts the principle of “regional exhaustion” regarding parallel importation of patent-protected products in Switzerland
Lenz & Staehelin (Geneva)
On December 19th, 2008, the Swiss Parliament adopted the principle of regional exhaustion in the Swiss Patent Act. Practically, this means that parallel importation into Switzerland of products that are patent-protected in this country will be possible, under the condition that these products (...)

The Korean Fair Trade Commission plans to strenghten enforcement against abuse of intellectual property rights by IT and pharmaceutical companies
Jones Day (Beijing)
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Winston & Strawn (New York)
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Jones Day (Tokyo)
On December 18, 2008, the primary competition law agency of Korea, the Korea Fair Trade Commission (« KFTC »), submitted to the President of Korea the KFTC’s business plan for 2009. Among other priorities, the KFTC stated that it plans to « strengthen enforcement against abuse of intellectual (...)

The Cyprus Commission for the Protection of Competition holds that the lowering of prices for international calls by the incumbent does not constitute price squeezing (Areeba / ATHK)
Neocleous
,
Neocleous
The Competition Commission concluded that the lowering of prices for international calls by CYTA (the telecommunications authority in Cyprus with a dominant position in the market) did not constitute price squeezing or restriction of profit margin to the detriment of CYTA’s competitor Areeba for (...)

The German Higher Regional Court of Düsseldorf decides that a company may abuse its dominant position by concluding rental agreements, thereby preventing market access of competitors (Schilderpräger)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 12 December 2008, the Higher Regional Court of Düsseldorf issued a decision concerning a rental agreement between a district and a manufacturer of car number plates. The case concerned the question whether a company having a local monopoly on the manufacturing market for car number plates (...)

The Croatian Constitutional Court affirms the constitutionality of certain provisions of the Competition Act and its application in conformity with the EU standards (P.Z.A.)
University of Technology (Tallinn)
Summary The Croatian Constitutional Court rejected the challenge against AZTN’s decision prosecuting the exclusive importer of the Volkswagen automobiles in Croatia for abuse of dominant position in accordance with the EU standards applied to this type of violation of competition law. The Court (...)

The European Court of Justice gives favourable ruling on collective copyright remuneration model (Kanal 5 and TV 4)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 11 December 2008, the ECJ handed down a judgment in which it responded to four questions referred to it by the Swedish Market Court. The questions arose in a dispute between the Swedish copyright collecting society STIM and two commercial TV channels, TV 4 and Kanal 5 (the “TV channels”). The (...)

The Italian Competition Authority accepts the commitments offered in the voice communications and broadband internet access services markets following its investigation into alleged abuse of dominant position (Telecom Italia)
Bonelli Erede (Rome)
By its Decision delivered on 11 December 2008, the Italian Competition Authority (the "ICA") decided to close the proceedings initiated against Telecom Italia ("TI"), by adopting a commitment decision under Art. 14-ter of Law 287/1990 (the Italian Competition Act) which implements the provision (...)

The German Federal Court of Justice decides on the relevant definition of the gas supply market (Stadtwerke Uelzen)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 10 December 2008, the German Federal Court of Justice (FCJ) issued a decision on the definition of the relevant gas supply market. The case concerned the question whether a regional gas supplier had a dominant position which could have been abused. Facts and proceedings Stadtwerke Uelzen (...)

The French Competition Council holds that a refusal to continue a commercial relationship with a distributor constituted no abuse of economic dependence and provided clarifications regarding the scope of protection of third parties’ business secrets (Concurrence/Sony - Philips)
Herbert Smith Freehills (Paris)
,
Tech Data
Background The Competition Council ("Council") rejected a complaint brought by retailer Concurrence against Sony, as well as Philips. The present case arose out of Sony’s decision in late 2007 to end all commercial relations with Concurrence, a Paris electronics retailer who had been litigating (...)

The Spanish Competition Authority fines music industry collecting societies for discriminatory pricing (AGEDI, AIE)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 9 December 2008, the Spanish Competition Authority adopted a decision fining the two Spanish collecting societies in the music industry, AGEDI (representing music producers) and AIE (representing artists), for discriminatory pricing in breach of Article 82 EC and the equivalent provision of (...)

The Cyprus Competition Commission holds abusive the termination of a business relationship having for consequence the cessation of business and market exit (Athanasis Olympou / Pafos Cooperative)
Neocleous
,
Neocleous
The Competition Commission held that the actions of the Paphos Cooperative Society of Cattle Breeders, that is the termination of the business relationship they maintained with the complainants, significantly affected competition, as it constitutes a breach of section 6(2) of the law. The (...)

The Spanish NCC fines collecting societies for the second time in two years for abuse of dominance in their management of intellectual property rights (AGEDI)
Cleary Gottlieb Steen & Hamilton (Brussels)
On 9th December 2008, the Spanish Competition Commission (“CNC”) issued a decision, establishing that the Association for the Management of Intellectual Property Rights (AGEDI) and the Management Society of Artists, Interpreters or Performers (AIE) had abused their dominant position in the market (...)

The Lithuanian Supreme Administrative Court upholds the annulment of the NCA’s Art. 82 EC decision and sends the case back for re-investigation (Mazeikiu nafta II)
Lithuanian Competition Council
On 8 December 2008 the Lithuanian Supreme Administrative Court (LSAC or the Court) upheld the earlier judgment of the Vilnius District Administrative Court (VDAC) in annulling the Competition Council’s Art. 82 EC infringement decision the in Mazeikiu nafta II case. Mazeikiu nafta II was the (...)

The European Commission issues guidance on its enforcement priorities in applying EU rules on abuse of a dominant position to abusive exclusionary conduct by dominant undertakings
European Commission - DG COMP (Brussels)
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European Commission - DG JUST
"Implementing an effects-based approach to Article 82"* I. Introduction On 3 December 2008, the Commission issued Guidance on its enforcement priorities in applying Article 82 to abusive exclusionary conduct by dominant undertakings. In so doing, the Commission formally endorsed an (...)

The European Commission issues a Communication on abusive exclusionary conduct by dominant undertakings
Jones Day (Brussels)
,
European Commission (Brussels)
On Wednesday, 3 December 2008, the European Commission issued the long awaited Communication on abusive exclusionary conduct by dominant undertakings. This marks the end of an extensive review process, launched in December 2005 by the Commission’s Staff Discussion Paper on exclusionary abuses (...)

The Latvian Competition Council imposes a penalty on national collective copyright management association for abuse of dominance (AKKA-LAA)
Competition Council of Latvia
The Competition Council Imposes Penalty on AKKA/LAA for Abuse of Dominant Position* On 1 December 2008 the Competition Council of Latvia (CC) has adopted decision on Latvian collective copyright management association AKKA/LAA (“Copyright and Communication Consulting Agency/Latvian Authors (...)

Mergers

The Croatian Competition Authority amends the remedies for the conditionally approved supermarkets merger (Konzum - Lokica)
University of Technology (Tallinn)
On 30 December 2009 the Croatian Competition Authority (AZTN) issued a conditional clearance to an acquisition by Konzum of a number of supermarkets belonged to Lokica, two wholesale and retail distributors with dominant market positions on the wholesale distribution market in Croatia and (...)

The Croatian Competition Authority clears following EC standards a merger of wholesale and retail distributors subject to structural and behavioral remedies (Konzum - Lokica)
University of Technology (Tallinn)
Summary The Croatian Competition Authority (Agencija za zaštitu tržišnog natjecanja) (AZTN) cleared subject to remedies the merger between Konzum d.d. and Lokica d.o.o., two wholesale and retail distributors with dominant market positions on the wholesale distribution market in Croatia and retail (...)

The EU Commission accepts, subject to remedies, a takeover of a company in the electricity sector (EDF / British Energy)
CRA International (Brussels)
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Chrysses Demetriades & Co. LLC (Limassol)
,
Holmes Kirby
I. Introduction On 24 September 2008, following ongoing talks with British Energy, EdF announced that it had agreed a takeover of the company for the sum of £12.5 billion. On 3 November 2008, given that the transaction had a Community dimension within the meaning of the Merger Regulation, EdF (...)

The European Commission gives conditional clearance to an acquisition in the electricity sector (EDF / British Energy)
,
European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 September and 31 December 2008"* On 22 December conditional clearance was granted to the proposed acquisition of British Energy (BE) by Electricité de France (EdF). The Commission’s decision was conditional upon EdF‘s commitment to divest the power generation (...)

The European Commission gives conditional clearance to an acquisition in the production of generic medicines (Teva/Barr Pharmaceuticals)
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European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 September and 31 December 2008"* On 19 December the Commission gave conditional approval to the proposed acquisition of Barr Pharmaceuticals of the US by Teva Pharmaceutical Industries of Israel. Both companies produce generic medicines. To remedy the (...)

The Dutch Competition Authority clears a joint venture for the rollout and management of an optical fiber network subject to behavioural remedies (Reggefiber)
RBB Economics (The Hague)
,
RBB Economics (Brussels)
Introduction On 19 December 2008 the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, hereafter the NMa) authorized a joint venture (JV) by KPN and Reggefiber conditional upon behavioural remedies . The imposed remedies address the focal points of OPTA’s most recent Market (...)

The UK OFT publishes a restatement of its position concerning "Failing Firm" Defence in merger reviews
Cadwalader Wickersham & Taft (Brussels)
The UK antitrust authority, the Office of Fair Trading (OFT), published on 18 December 2008 a restatement of its position on the « failing firm » defence in merger reviews. In current economic conditions, this is timely confirmation of the relevant principles and practice. It is also a reminder (...)

The US DOJ files an antitrust lawsuit to challenge a consummated merger in the manufacture and sale of specialized electronic components (Microsemi, Semicoa)
Jones Day (Houston)
,
Jones Day (Washington)
In another reminder that U.S. antitrust enforcers can challenge mergers even after closing, and even for deals not subject to premerger notification under the HSR Act, on December 18, 2008, the Department of Justice Antitrust Division filed a civil antitrust lawsuit challenging the July 2008 (...)

The European Commission clears a complex merger of Dutch dairy cooperatives after an in-depth investigation (Friesland Foods / Campina)
RBB Economics (The Hague)
Introduction 1. On 17 December 2008, the European Commission cleared the merger of Dutch dairy cooperatives Friesland Foods and Campina after a Phase II inquiry. The case is likely to be one of the largest and most complex Dutch merger cases ever dealt with by the Commission, due to significant (...)

The European Commission gives unconditional clearance to a merger between two Dutch airlines active in the transport of passengers and cargo (KLM/Martinair)
,
European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 September and 31 December 2008"* On 17 December the Commission gave unconditional clearance to the proposed acquisition of Martinair by KLM, both Dutch airlines active in the transport of passengers and cargo. In September, the Commission opened an (...)

The European Commission clears, subject to conditions, a merger in the dairy products markets (Friesland Foods / Campina)
,
European Commission - DG COMP (Brussels)
"Mergers: main developments between 1 September and 31 December 2008"* On 17 December the Commission cleared the proposed merger between Campina and Friesland Foods, both Dutch companies active in a range of dairy product markets, subject to conditions. The Commission’s in-depth investigation, (...)

The European Commission approves a merger to nearly monopoly with a questionable theory of harm and novel behavioural remedy (Friesland Foods / Campina)
Warwick Business School
Key Facts Of The Case Campina and Friesland Foods are the two largest dairy cooperatives in the Netherlands. Between them, prior to the merger, they produced 70% to 80% of all the raw milk procured in the Netherlands. In addition the firms processed the milk into fresh milk for drinking as (...)

The European Commission conditionally approves a merger between two Dutch dairy cooperatives (Friesland Foods / Campina)
Compass Lexecon (Brussels)
,
Compass Lexecon (Brussels)
,
European Commission - DG ECFIN
"Friesland Foods/Campina: a merger between two Dutch dairy cooperatives approved with a set of comprehensive remedies"* I. Introduction The Friesland Foods/Campinacase (M.5046), which concerned a full legal merger between the two leading Dutch dairy producers, covered the entire production (...)

The European Commission clears a merger between two major dairy cooperatives in the Netherlands, subject to remedies (Friesland Foods / Campina)
RBB Economics (Brussels)
,
RBB Economics (Brussels)
I. Background In December 2008, the European Commission (EC) cleared the proposed merger between the two largest dairy cooperatives in the Netherlands: Friesland Foods and Campina. The clearance came after a Phase II investigation, subject to commitments offered by the parties. The EC (...)

The Austrian Supreme Court rules that the sale of shares to the remaining jointly controlling shareholders constitutes a concentration (RAG - Shell)
Reidlinger Schatzmann Rechtsanwälte
,
Bpv Hügel (Vienna)
1. Facts and decision at first instance This case involves a change in the shareholder structure of RAG, Austria’s second largest oil and gas company. Before the concentration, the shares in RAG were held by two holding companies. One holding company, which held 75% in RAG’s shares, was jointly (...)

The Austrian Supreme Court confirms the phase II clearance of a cooperation agreement between two operators forming a joint venture in the market for free weekly newspapers despite the veto of the Federal Competition Authority (Styria Medien and Moser Holding)
Reidlinger Schatzmann Rechtsanwälte
,
Freshfields Bruckhaus Deringer
1. Facts On 17 March 2008 Styria Medien AG, Graz, Austria (SAG) and Moser Holding AG, Innsbruck, Austria (MOHO) notified the Federal Competition Authority (FCA) of their intention to create a 50/50 joint venture in the market for free weekly newspapers. The proposed media merger constitutes a (...)

The US FTC seeks disgorgement remedy in challenge against pharma company for illegally acquiring drugs used to treat premature babies with life-threatening heart condition (Ovation)
Skadden, Arps, Slate, Meagher & Flom (Washington)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
Continuing a trend of increasing aggressiveness in antitrust enforcement, the Federal Trade Commission (FTC) is seeking disgorgement in a challenge to Ovation Pharmaceutical Inc.’s acquisition of the drug NeoProfen®, filed in the Minnesota District Court on Dec. 16, 2008. In the past, the FTC has (...)

The Macedonian Competition Authority adopts guidance on assessment of non-horizontal concentrations (Guidelines on vertical and conglomerate concentrations)
University of Technology (Tallinn)
On 16 December 2008 the Macedonian Competition Authority (Комисијата за заштита на конкуренцијата) (KZK) adopted the Guidelines on assessment of vertical and conglomerate concentrations (Насоки за оценка на вертикални и конгломератни концентрации) (Non-Horizontal Guidelines), which were intended to complement the existing (...)

The German Cartel Office imposes "Gun Jumping" fine against a leading U.S. candy manufacturer for failure to comply with German premerger notification (Mars, Nutro Products)
Jones Day (Frankfurt)
In a highly unusual decision for Germany’s Federal Cartel Office (FCO), on December 15, 2008, the agency imposed a fine of € 4.5 M against U.S. company Mars, Inc. for violating the bar to closing in Germany pending the completion of the German merger review process. This is the first such fine (...)

The German Cartel Office imposes "Gun Jumping" fine against a leading U.S. candy manufacturer for failure to comply with German premerger notification (Mars, Nutro Products)
Jones Day (Frankfurt)
In a highly unusual decision for Germany’s Federal Cartel Office (FCO), on December 15, 2008, the agency imposed a fine of € 4.5 M against U.S. company Mars, Inc. for violating the bar to closing in Germany pending the completion of the German merger review process. This is the first such fine (...)

The UK Competition Appeal Tribunal rejects appeal against clearance of a merger in the bank sector (Lloyds TSB/HBOS)
Van Bael & Bellis (Brussels)
On 10 December 2008, the UK Competition Appeal Tribunal (CAT) ruled on an appeal against the decision of the Secretary of State for Business, Enterprise and Regulatory Reform, Lord Mandelson, to clear the proposed acquisition of UK banking group HBOS by competitor Lloyds TSB. In September 2008, (...)

The Polish Competition Authority clears the setting-up of a joint venture by the leading mobile operators taking into account the high costs of building a specific infrastructure (Mobile TV - P4, Polkomtel, PTC and Centertel)
European University Institute (Florence)
The notified concentration In August 2008, the four largest mobile operators in Poland, Polkomtel, PTC, Centertel and P4, notified the UOKiK (the Office of Competition and Consumer Protection) about their intention to set up a new undertaking that would provide wholesale audiovisual (...)

The Spanish National Competition Authority conditionally clears a merger in the supermarket sector (Supermercados Sabeco/Galerías Primero)
PwC (Madrid)
The operation The operation involved the acquisition of 100% of Galerías Primero by Auchan, through its subsidiary Sabeco. The Auchan group is a French-based multinational company specialising in the operation of retail stores, mainly hypermarkets and supermarkets. In Spain, the main brands of (...)

The Turkish Competition Board states that the remedies imposed in a previous merger clearance decision are fulfilled (Greencastle)
Mey
,
Hergüner Bilgen Özeke
On 23 August 2007 the Turkish Competition Board (the “Board”) granted a conditional approval to the transfer of 100% of the shares in i) Intergum Gida San. ve Tic. A.S., (ii) Dandy Sakiz ve Sekerleme Sanayi A.S. (“Dandy”), (iii) Falim Sakiz San. ve Tic. A.S. (“Falim”) and (iv) Intergum North America (...)

The Hungarian competition authority holds that a public tender for the operation of an hospital may lead to a merger but holds that the operation fells below the thresholds while applying its method of calculating turnover (Markhot Ferenc Hospital)
King’s College (London)
In November 2007, the municipality of Heves County (Hungary) announced a public tender for the operation of Markhot Ferenc Hospital (hereinafter Hospital) for 20 years from the date of concluding the contract. Based on the contract, the winning bidder would be obliged to operate the Hospital (...)

The Italian Antitrust Authority approves subject to remedies the airlines merger to monopoly take off: the Alitalia privatization saga nears its conclusion (CAI - Alitalia - Airone)
Freshfields Bruckhaus Deringer
,
Eversheds Bianchini (Roma)
On 3 December 2008, the Italian Antitrust Authority (IAA) approved the transaction through which Compagnia Aerea Italiana S.p.a. (CAI) will acquire the operating assets of Alitalia Linee Aeree Italiane S.p.a. (Alitalia) as well as sole control over AirOne S.p.A. (AirOne). Alitalia is the (...)

The Italian Competition Authority authorises a merger-to-monopoly in domestic air transport (Alitalia/Airone)
Luigi Prosperetti & Partners
With the Decision we comment here, the Italian Competition Authority (the ICA) authorised the merger between Compagnia Aerea Italiana (CAI, a newly-formed company which at the time of the decision was about to acquire, and later acquired, most of the passenger-transport assets of Alitalia) and (...)

State Aid

A Polish Appeals Court rules on the issue of costs reimbursing in the case of undue SAPARD aid (Agency for Restructuring and Modernization of Agriculture / M. L.)
Greenberg Traurig Grzesiak (Warsaw)
,
PKN Orlen
Factual background: The plaintiff brought an action against M.L. to recover unduly received financial aid in relation to SAPARD Programme. According to the agreement between the Agency and the defendant, the Agency undertook to refund part of the costs incurred in order to complete the (...)

The Spanish Superior Court of Justice of the Basque Country sets the criteria to consider a regional tax measure as State aid (Companies’ tax (I))
Hogan Lovells (Madrid)
,
Allianz (Brussels)
Factual Background: Appeal by the region of Castilla and Leon against the fiscal regional Law of Biscay 6/2007 (hereinafter, "Law 6/2007"), which modified three articles of the Companies’ tax regional Law of Biscay in order to grant tax benefits to companies located in the region of Biscay (...)

The French Council of State orders stay in proceedings regarding the recovery of unlawful aid in the CELF case and refer to the ECJ the question of the extent of the national courts’ obligation in such "exceptional circumstances" (CELF II)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual background CELF is a cooperative society in public limited company form and operates as an export agent. It aims to process orders from abroad and from the French overseas territories and departments for books, brochures and any communication media and, more generally, to perform (...)

The German Administrative court rules that a service contract for the regional rail public transport is not subjected to State aid notification (Nordrhein-Westfalen)
European Commission - DG COMP (Brussels)
,
Maersk (Copenhagen)
Brief description of the facts and legal issues The Gelsenkirchen Administrative Court holds that a service contract for regional public rail transport is not subject to a notification requirement. A definitive Commission decision stating declaring that Article 87(1) EC has been infringed is (...)

The European Court of First Instance annuls the Commission decision on the Gibraltar tax reform (Government of Gibraltar v Commission)
Van Bael & Bellis (Brussels)
On 18 December 2008, the Court of First Instance (hereinafter the ‘CFI’) gave its judgment annulling the Commission decision according to which the proposed reform of corporate tax in Gibraltar constitutes unlawful State aid. The CFI found that the Commission had erred in its assessment of both (...)

The German government agrees to apply appropriate measures in the financing regime for public service broadcasters in order to comply with EC State aid rules
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
"Commission and Germany agree on better control for the use of State aid in the broadcasting sector"* On 18 December 2008, Germany’s 16 Ländersigned a new inter-state treaty on broadcasting, which implements a set of appropriate measures under the terms of a Commission Decision of April 2007. (...)

The EU Court of First Instance annuls the Commission decision on State aid granted to a low cost airline (Ryanair)
Van Bael & Bellis (Brussels)
On 17 December 2008, the Court of First Instance (hereinafter the ‘CFI’) annulled the Commission decision in which the Commission had found that the advantages granted by the Walloon Region and Brussels South Charleroi Airport (‘BSCA’) to Ryanair constituted illegal State aid. The CFI found, in (...)

The European Commission adopts a temporary framework for State aid measures providing member States with additional possibilities to tackle the effects of the financial crisis
Van Bael & Bellis (Brussels)
On 17 December 2008, the Commission adopted a temporary Framework for State aid measures to support access to finance in the current financial and economic crisis. The Framework forms part of the European Economic Recovery Plan announced on 26th November and it introduces a number of temporary (...)

The Austrian Supreme Court of Austria suspends, until judgment of the CFI, proceedings under the Austrian Unfair Competition Act on the question whether the sale of a bank constituted State Aid and thus violated the Act (SLAV)
Max Planck Institute for Innovation and Competition (Munchen)
,
PETER THYRI Competition Counseling Research
Factual background The privatisation of Bank Burgenland (“BB”) was a condition for the approval of a restructuring aid for Bank Burgenland by the Commission in 2004. In March 2006, following a third and finally successful public tender, Land Burgenland finally sold Bank Burgenland to GRAWE for (...)

The Finnish Administrative Court rejects alleged State aid element in a land sale and revokes previously granted interim measure (Haukivuori Municipal Council)
Dittmar & Indrenius
Factual Background Haukivuori Municipal Council had decided to sell two pieces of land to a real estate company to be established. The municipality was going to be a major shareholder in the new company. The total purchase price was 7,900 euros and the new real estate company was intended to (...)

The Brussels Court of Appeal rejects State aid pleas in the context of a bank rescue plan (Fortis)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
1. Introduction In order to tackle the financial turmoil of last September, the Belgian State acquired in two steps Fortis Bank. Firstly, on 28 September 2008, the Belgian State (via the “SFPI”, the “Federal Participation and Investment Company”, together with the Luxembourg and the Dutch States (...)

The Swedish Administrative Court in Kalmar rules that a guarantee undertaken by local government in favour of construction of a football arena is in line with the Local Government Act (Christian Bildsten)
Swedavia AB
,
General Court of the European Union (Luxembourg)
,
Öberg & Associés
Factual Background On August 25, 2009, the Municipality of Kalmar decided to support a football arena construction project by subsidising the project and guaranteeing for the loan that Handelsfastigheter i Kalmar 2 AB (a real estate company) had to take out in order to finance the arena (...)

The Belgian Civil Supreme Court applies the ruling of the ECJ in the Van Calster case and holds that the tax on slaughterhouses does not constitutes unlawful State aid as it is part of an aid scheme declared compatible (Slachthuis Swaegers)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background Under the Belgian Animal Health Act 1987 (the “1987 Act”), compulsory charges were levied on slaughterhouses. These charges were subsequently used to finance animal welfare measures that improve the hygiene, health and quality of life of animals. This scheme had, however, (...)

A Swedish Administrative Court annuls a decision of a municipal council to sell a swimming arena but refuses to consider the EC State aid point of view on the basis of possible de minimis exemption (Ingolf Falk)
Swedavia AB
,
General Court of the European Union (Luxembourg)
,
Öberg & Associés
Factual background The applicant is a local resident. He appealed the municipal council in Övertorneå’s decision to sell a swimming arena for 1,00 SEK to the Administrative Court. The sale was not preceded by a public bidding procedure, nor by any independent expert evaluation of the property (...)

Procedures

The US Court of Appeals for the Third Circuit clarifies class certification standard (Hydrogen Peroxide Antitrust Litigation)
Haynes and Boone (Washington)
,
FSG - Finance Scholars Group
In re Hydrogen Peroxide Antitrust Litigation Bleaches Clean the Class Certification Standard* With its December 30, 2008, decision in In re Hydrogen Peroxide Antitrust Litigation, the Third Circuit joins a growing list of U.S. Courts of Appeals that have clarified the responsibilities that (...)

The US FTC issues interim final rules for FTC administrative litigation
Jones Day (Washington)
,
Jones Day
On December 23, the Federal Trade Commission published a set of interim final rules governing trials held before the Commission. The interim final rules incorporate most, but not all, of the rules changes first proposed by the FTC in October 2008. The interim final rules are likely to have a (...)

A Shanghai Court announces the creation of a specialized panel of judges dedicated to hearing anti-monopoly lawsuits
Jones Day (Beijing)
,
Jones Day (Beijing)
,
Winston & Strawn (New York)
On December 22, 2008, the Shanghai No. 2 Intermediate Court announced the establishment of a new specialized combined panel of judges (called the "反垄断案件专项合议庭" in Chinese, and referred to below as the "Specialized AML Panel") dedicated to hearing AML lawsuits and related actions. The Specialized AML Panel (...)

The UK Office of Fair Trading publishes revised leniency guidance for businesses and individuals that come forward with information about their involvement in a cartel (Leniency and no-action: OFT’s guidance note on the handling of applications)
European Commission - DG COMP (Brussels)
Introduction In December 2008, the UK Office of Fair Trading (“OFT”) published revised guidance (“the Guidance”) for undertakings and individuals that are contemplating applying for leniency in cartel cases , which sets out the OFT’s position on a number of important leniency-related issues. (...)

The German Federal Court of Justice affirms the coherence of German and European Competition law and German Civil law concerning anticompetitive practices (Subcontractor II)
Berlin Freie Universität
Facts The parties argue about the validity of a post-contractual non-compete clause. The plaintiff deals with the development, production and construction of certain technical equipments. The defendant was an employee of the plaintiff in the past. Then he went into business for himself on the (...)

The Czech Supreme Administrative court rules that a concurrent breach of Czech and Community competition laws is possible (Tupperware)
Norton Rose Fulbright (London)
,
Rentsch Legal
On 3 December 2008, the Supreme Administrative Court reversed the ruling of the Regional Court in Brno and remanded it back for further proceedings. The original judgment of the regional court had quashed the decision of the Chairman of the Office for the Protection of Competition (the “Office”) (...)

The Italian Council of State indicates that the regulation of the unfair commercial practices perpetrated in the financial sector falls within the jurisdiction of the financial regulator
Desogus Law Office (Cagliari)
Following a request filed by the Italian Competition Authority (ICA), the Council of State (CoS), the Italian higher administrative court, has given an opinion on the alleged conflict of jurisdiction between the ICA and the Italian financial regulator (Consob) on the regulation of unfair (...)

Regulatory

The UK Gas and Electricity Markets Authority, following an Ofgem investigation, inflicts a fine to gas and electricity suppliers for breach of their licences concerning mis-selling (Npower)
Background Following media reports (in the Sunday Times) and a referral by energywatch of a number of complaints regarding mis-selling by the Npower Group (Npower Limited - electrical supply; Npower Gas Limited - gas supply; Npower Northern Limited - electricity and gas supply; Npower (...)

The Cypriot Competition Authority dismisses the telecommunications incumbent’s application for interim measures against airports operator (CYTA / Hermes Airports)
Antoniou Advocates
The Cyprus Commission for the Protection of Competition (“CPC”) dismissed an application for interim measures by CYTA against Hermes Airports Ltd alleging violations of sections 3 and/or 6 of the Protection of Competition Law 13(I) of 2008 (“Law 13(I)/2008”) - as well as of articles 81 and/or 82 (...)

Public sector

The Belgian Prosecutor refuses to prohibit grant of a public tender for public bicycle rental system (ClearChannel Belgium/JC Decaux Belgium sa and Région de Bruxelles-Capitale)
Altius (Brussels)
,
Johnson & Johnson (Brussels)
In Spring 2008, the government of the Brussels-Capital Region (Région de Bruxelles-Capitale/ Brussels Hoofdstedelijk Gewest) issued an invitation to tender for the creation and implementation of an automatic bicycle-hire system for public use in the Brussels region. Three tenders were submitted (...)

A Dutch Court refuses to suspend in interim proceedings an "in house" concession for public bus transport in Rotterdam (Connexxion / Stadsregio Rotterdam)
Arendt & Medernach (Luxembourg)
,
NautaDutilh (Luxembourg)
Facts of the case 1. On 31 October 2007, the City-Region (Stadsregio ) of Rotterdam, regrouping several local authorities in the Rotterdam region, has suspended an EU-wide public tender procedure. It did so in order to anticipate a forthcoming amendment of the Dutch regulatory framework for (...)

The UK Court of appeal challenges the decision of OFCOM to award licences by way of auction (T-Mobile & Telefónica 02 UK)
Université Aix-Marseille
On 4th April 2008, OFCOM published a document entitled “Award of available spectrum: 2500-2690 MHz, 2010-2025MHz” (hereafter “The Award”). This document contained important information on how and when OFCOM intended to go about licensing the spectrum concerned. The contentious decision was the one (...)

The German Federal Court of Justice rules on rescue services being subject to the national public procurement regime (Saxon municipalities rescue services)
Berlin Freie Universität
I. Background Several Saxon municipalities built up an alliance for efficient organization of public responsibilities. The alliance had the objective to provide rescue services in the public interest, comprehending mainly an emergency rescue system and a patient transport system, but also the (...)

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