December 2009

Anticompetitive practices

The Belgian Civil Supreme Court upholds the decision of the Appeal committee of the Pharmacists professional body (V.D.F.M/Ordre des pharmaciens)
Fidal (Lyon)
1. Introduction In its judgment of 11 December 2009, the Belgian Civil Supreme Court (Cour de Cassation) confirmed the decision of the Appeal Committee of the Ordre des pharmaciens which ruled that competition can be restricted by a College of Pharmacists for the protection of the public (...)

The Portuguese Competition Authority caters to a catering cartel (Eurest, Trivalor, Uniself, ICA/Nordigal, Sodexo Portugal)
Eduardo Paz Ferreira & Associados
The Portuguese Competition Authority has imposed fines totaling EUR 14,7 million on five undertakings for a violation of the national provision similar to Art. 101 of the TFUE (and, possibly, under this provision as well), for a cartel in the national market for mass catering and for canteen (...)

The Portuguese Competition Authority fines individual managers for the first time in a cartel in the catering and related services and grants full exemption under leniency (Eurest, Trivalor, Uniself, ICA/Nordigal, Sodexo Portugal)
University College London
The competition authority in Portugal (Autoridade da Concorrência - AdC) decided last December 30, 2009 to condemn five companies for harmful anticompetitive practices in the market of meals (catering) and services of administration and exploration of refectories, canteens or restaurants. The (...)

The Portuguese Competition Authority fines € 14,7 million five undertakings implicated in the Canteen Cartel and uses the leniency regime for the first time (Eurest, Trivalor, Uniself, ICA/Nordigal, Sodexo Portugal)
University of Lisbon
,
Abreu Advogados
On 30 December 2009 the Portuguese Competition Authority (PCA) imposed total fines € 14,720 million on five mass catering undertakings active in the market for meals and refectory, canteen and restaurant management/operating services for anti-competitive practices. This case amounts to the first (...)

The Lithuanian Competition Authority closes investigation in retail trade of automobiles and technical maintenance sector following commitments (Honda Motor Europe)
European Commission (Brussels)
Lithuania: The Competition Council (CC) closes Investigation in Retail Trade of Automobiles and Technical Maintenance Sector following Commitments On 24 December 2009, the Lithuanian Competition Council terminated its investigation concerning the compliance of the practices of vehicle traders (...)

The Canadian Competition Bureau releases the final version of its Competitor Collaboration Guidelines instituting a new dual-track approach for conspiracy and agreement between competitors (section 45 and 90.1 Competition Act)
Université de Laval
On December 23, 2009 the Competition Bureau (the “Bureau”) released the final version of its Competitor Collaboration Guidelines (“Guidelines”) that outlines the Bureau’s approach to enforce the new agreement provisions resulting from the fundamental changes induced by Bill C-10. Bill C-10 overhauls (...)

The Canadian Competition Bureau publishes guidance on “product of Canada” and “made in Canada” claims
Canadian International Joint Commission
Introduction Canada’s Competition Bureau (the “Bureau”), an independent enforcement agency that assists the Commissioner of Competition (the “Commissioner”) in protecting and promoting competition, released its Enforcement Guidelineson“product of Canada” and “made in Canada” Claims(the “Guidelines”) (...)

The European Commission launches public consultation on the review of the competition rules for the motor vehicle sector
Van Bael & Bellis
On 21 December 2009, the European Commission launched a public consultation on its review of the competition rules for the motor vehicle sector. In particular, the European Commission published a draft sector-specific block exemption and notice concerning the sale of new motor vehicles, spare (...)

The Irish High Court finds that four Dublin local authorities acted in breach of Irish competition law in proposing changes to how the domestic waste sector is regulated (Nurendale Limited - Panda Waste Services)
Venture Legal Services
In a ruling made on 21 December 2009 in the case of Nurendale Limited (trading as Panda Waste Services) v. Dublin City Council, Dun Laoghaire/Rathdown County Council, Fingal County Council and South Dublin County Council, the Irish High Court determined that the four Dublin local authorities (...)

The Irish Competition Authority publishes booklet on the detection and prevention of collusive tendering
European Commission (Brussels)
Ireland: The Competition Authority raises Awareness on Harm caused by Bid-Rigging/Collusive Tendering, and publishes booklet on “The Detection and Prevention of Collusive Tendering”, and organizes “Bid-Rigging Road-Show&” On 20 December 2009, the Irish Competition Authority published an (...)

The German Competition Authority fines three coffee roasters for price fixing (Tchibo, Melitta Kaffee, Alois Dallmayr)
European Commission (Brussels)
Germany: Coffee Roasters fined for Price Fixing In a decision of 18 December 2009, the Bundeskartellamt imposed fines totalling approximately € 159,500,000 on three coffee roasters and the six responsible employees. The companies involved are Tchibo GmbH, Melitta Kaffee GmbH and Alois Dallmayr (...)

The French Competition Authority issues an opinion on the possible implementation of retail price maintenance scheme for digital books
European Commission (Brussels)
France: The Autorité de la concurrence recommends not to apply RPM to Digital Books and suggests Contractual Models for Relations between Publishers and Digital Librarians On 18 December 2009, the Autorité de la concurrence (hereafter: the Autorité) delivered its opinion on the possible (...)

The French NCA fines a trade association in the hydrotherapy sector for price fixing and exchanges of information between its members and dismisses lack of prior intent as a mitigating circumstance (Conseil national des exploitants thermaux)
Dechert (Paris)
,
Herbert Smith Freehills (Paris)
In a decision issued on 18 December 2009, the French Competition Authority (the «Authority«) fined a trade association in the hydrotherapy sector, the Conseil national des exploitants thermaux («CNETh«), for infringing article L. 420-1 of the French Commercial Code (the French equivalent of art. (...)

The Macedonian Competition Authority finds anticompetitive practices on the market for radio advertising (Ros Metropolis Radio)
University of Technology (Tallinn)
On 18 December 2009 the Macedonian Competition Authority (KZK) concluded its investigation on the market for radio advertising on the territory of Skopje municipality and concluded that three radio stations - Ros Metropolis Radio, City Radio and Club FM concluded an anticompetitive agreement by (...)

The Dutch Supreme Court annuls a judgment of the Court of Appeal for error in market definition and lack of analysis of the franchise agreement’s restrictive object in the light of its context (Prisma Vastgoed, Prisma Food Retail / Verweerders)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
In 1989, Prisma rented out a supermarket to the defendant. The rental agreement provided for an option to purchase the supermarket in favour of the defendant, which could be exercised on 30 April 2001. This agreement further provided that in case the defendant purchased the supermarket, it (...)

The French Competition Authority refuses to condemn companies specialized in medical technologies despite their parallel behaviour (Ethicon / Tyco Healthcare France / Syndicat national des industries technologies médicales)
Europ Assistance
On the 29th August 2005 the Minister of Economy referred a case to the French Competition Authority (Autorité de la Concurrence) concerning observed parallelism in price operated by Ethicon SAS (Ethicon), Tyco Healthcare France (Tyco) and the national trade union of industries specialised in (...)

The French Competition Authority analyses parallel behaviour as proof of a concerted practice and excessive pricing by a dominant company, in the context of a price-regulated sector (Ethicon / Tyco Healthcare France / Syndicat national des industries technologies médicales)
Cabinet Dieny
I. Introduction The main interest of this decision of the French Competition Authority (hereafter « the Competition Authority ») lies in its analysis of parallel behaviour as proof of a concerted practice, on the one hand, and excessive pricing by a dominant company, on the other, in the context (...)

The Bulgarian Competition Authority finalises sector inquiry into voluntary health insurance
European Commission (Brussels)
Bulgaria: The Commission on the Protection of Competition (CPC) finalises Sector Inquiry into Voluntary Health Insurance On 17 December 2009, the CPC adopted a Decision on a Sector Inquiry into the competitive environment on the national market of voluntary health insurance. The report covers (...)

The Slovakian Competition authority condemns the three biggest banks in Slovakia for having concluded an agreement restricting competition (VUB, SLSP and CSOB)
European Commission (Brussels)
Slovakia: Cartel in the Banking Sector On 17 December 2009, a decision of the Council of the Antimonopoly Office of the Slovak Republic (hereinafter ‘the Office’) came into force, by which the Council confirmed the first instance decision of the Division of Agreements Restricting Competition. (...)

The Bulgarian Competition Authority holds that a network of vertical exclusivity agreements covering 86% of the relevant market has anticompetitive effects (Megalan - Universities)
Kinstellar (Sofia)
The Bulgarian Commission for Protection of Competition (the “CPC”) found that a network of vertical exclusivity agreements regarding construction and exploitation of Internet infrastructure and access to Internet that covered 86% of the relevant market foreclosed new entries and expansion by (...)

The Latvian Competition Council imposes a fine on participants of a kiosk chain cartel (Plus Punkts, Narvessen, Preses apvienība)
Klavins Ellex (Latvia)
Introduction On 15 May 2009 Latvian Competition Council received an application from SIA “Tele2” (Tele2) containing information regarding potentially concerted practices among SIA “Plus Punkts” (Plus Punkts), SIA “Narvessen Latvia” (Narvessen) and AS “Preses apvienība” (Preses apvienība). After (...)

The Latvian Competition Council fines two kiosk chains for prohibited agreement on the market for prepaid cards (Plus Punkts, Narvesen Baltija)
Competition Council of Latvia
The Competition Council Fines Two Kiosk Chains for Prohibited Agreement* On 16 December 2009 the Competition Council of Latvia adopted a decision establishing a prohibited agreement between two kiosk chains – Plus Punkts Ltd. and Narvesen Baltija Ltd./Preses apvienība Ltd. – and imposed fines in (...)

The Italian Competition Authority fines a sport association for having impeded individual sale of broadcasting rights (Italian Football Association)
Van Bael & Bellis (Brussels)
On 16 December 2009, the Italian Competition Authority (ICA) ruled that the Italian Football Association (“IFA”) had infringed Article 101 TFEU by implementing an agreement impeding the sale by individual football clubs of television broadcasting rights relating to Second Division Championship (...)

The Italian Revenue Police raids pasta makers during an investigation into a suspected price-fixing cartel (Barilla, De Cecco, Garofalo, Amato, Di Vella)
Van Bael & Bellis (Brussels)
On 15 December 2009, a number of Italy’s largest pasta makers were raided by the Italian Revenue Police as part of a criminal investigation into a suspected price-fixing cartel, which is alleged to have caused an increase in the retail price of pasta by 50% in the last two years. The (...)

The Polish President of the Office for Competition and Consumer Protection fines an operator and ten distributors for vertical price collusion with respect to trailer accessories (Knott)
Hogan Lovells (Warsaw)
Decision On 15 December 2009, the President of the Office for Competition and Consumer Protection (the ”OCCP”) fined Knott Sp. z.o.o. (“Knott”) and its ten distributors for vertical price collusion with respect to trailer accessories (such as axles, overrun couplings, jockey wheels, brakes and (...)

The Polish Competition Authority imposes unprecedented fines on cement cartel (Lafarge Cement, Górażdże Cement, Grupa Ożarów, Cemex, Dyckerhoff, Cementownia Warta and Cementownia Odra)
Van Bael & Bellis (Brussels)
On 10 December 2009, the Polish Competition Authority announced that it had imposed unprecedented fines amounting to PLN 411 million (approximately € 99 million) on Polish producers of grey cement, who were found to have participated in a price-fixing and market-sharing cartel for over eleven (...)

The French Competition Authority fines incumbent telecom operator in overseas territories and applies EU case law on presumption of liability of parent companies for the first time (Orange Caribbean)
European Commission (Brussels)
France: The Autorité fines Incumbant Telecom Operator in the Overseas Territories and applies EU Case-Law on Presumption of Liability of Parent Companies for the first Time On 9 December 2009, the Autorité de la concurrence imposed on Orange Caribbean, the incumbent and leading telecom operator (...)

The Polish Competition Authority issues the highest fine in its history (Cement Cartel)
Wiercinski Kwiecinski Baehr (Poznan)
,
Orange (Warsaw)
On December 8, 2009, the Polish competition authority, the President of the Office for Competition and Consumer Protection, issued a decision in which it found that 11 companies operating on the cement market entered into an anticompetitive agreement breaching Polish national law and the EU (...)

The Polish Competition Authority imposes the biggest fine in its history on members of a cement cartel (Lafarge Cement)
WilmerHale (Brussels)
The cement market in Poland and main proceedings The market for grey cement in Poland is shared between several former state-owned companies. This market structure, inherited after centrally planned economy, was subsequently preserved by international entities, which had acquired local cement (...)

The Dutch Competition Authority gives access to a statement of objections to a potential damage claimant (Natrium hypochlorite market cartel)
Van Bael & Bellis (Brussels)
On 7 December 2009, the Dutch Competition Authority (“NMa”) announced that a potential damage claimant had been given access to a statement of objections issued in the course of a cartel investigation in the natrium hypochlorite market which ultimately led to a € 3.1 million fine imposed on (...)

The Romanian Competition Authority imposes an 8% fine to an association of undertakings for price fixing and refers for the first time to criminal investigation bodies (Association of the Depositories of Cereals)
NNDKP
Price fixing by associations of undertakings is no novelty in the competition world. Neither are heavy fines, although it is not often that a competition authority reaches an 8% fine for a short term infringement (be it price fixing), and without application of any aggravating circumstances. (...)

A Dutch Court rules on refusal to appoint motor vehicle dealers to a motor vehicle selective distribution network (Kia)
Van Bael & Bellis
On 3 December 2009, the President of the Amsterdam Court of First Instance (the “President”) accepted an interim proceedings claim brought by four former Kia Nederland BV (“KIA Nederland”) repairers. The repairers claimed that KIA Motors Nederland BV (“KIA Motors”), which replaced KIA Nederland as (...)

The US Court of Appeals for the 2nd circuit affirms dismissal of antitrust claims addressing the proper application of the implied preclusion doctrine (Electronic Trading Group / Banc of America Securities)
Skadden, Arps, Slate, Meagher & Flom (New York)
,
Skadden, Arps, Slate, Meagher & Flom (New York)
On December 3, 2009, in In re Short Sale Antitrust Litigation (No. 08-0420-cv), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action alleging collusion among certain financial institutions that serve as “prime brokers” in connection with short sale (...)

The Finnish Market Court uphelds Competition Authority decision on fines for timber cartel (Stora Enso, Metsäliitto, UPM-Kymmene)
European Commission (Brussels)
Article published in ECN Brief 02/2010 (click here). The original title of this article appears below the e-Competitions title. Please note that the ECN is not the actual "author" of this case summary, but the mere source. As mentioned by the ECN: "The information provided by the ECN Brief is (...)

The Spanish Competition Authority closes a resale price maintenance case, after applying the de minimis rule (El Corral de las Flamencas)
Lonza
,
Cuatrecasas, Goncalves Pereira (Madrid)
On December 3, 2009, the Spanish Competition Authority(Comisión Nacional de la Competencia, “CNC”) closed a case of possible infringement of Article 1 of the Law 15/2007, for the Defense of Competition (“LDC”), involving the company El Corral de las Flamencas, S.L. (“El Corral”) fixing resale prices (...)

A US Court of Appeals affirms the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged cumulative anticompetitive effects (Gilley Enterprises / Atlantic Richfield)
Sheppard Mullin (Los Angeles)
Spirit of Twombly Exorcises Specter of Revived Aguilar Claims* The Ninth Circuit recently affirmed the dismissal of claims based on the aggregation of petroleum exchange agreements to show alleged "cumulative anticompetitive effects." Gilley Enterprises v. Atlantic Richfield Company, No. (...)

The Czech Regional Court in Brno cancels an NCA decision for not providing sufficient evidence as to the participation of an undertaking in the the cartel conduct (Poultry Producers Cartel)
Weil, Gotshal & Manges (Prague)
On 2 December 2009 the Regional Court in Brno cancelled decision of the Czech Office for Protection of Competition (“Office”) concerning cartel behavior of several poultry producers. The Regional Court did so despite the fact that it consented in all material respects with findings of the Office (...)

The Swiss Competition Authority imposes fines on three pharmaceutical companies for resale price maintenance (Pfizer, Lilly, Bayer)
Van Bael & Bellis
According to a press release of 1 December 2009, the Swiss Competition Authority has imposed fines totaling approximately € 3.7 million on three pharmaceutical companies (Pfizer, Lilly and Bayer) for engaging in resale price maintenance with their distributors. It appears that the three (...)

The Austrian Supreme Court rules that a newspaper distributor cannot be considered an agent under EU competition law (Newspaper Distributor II)
Salzburg University
Background The Austrian Competition Authority (“Bundeswettbewerbsbehörde”) successfully filed an application with the Austrian Cartel Court against a German publishing group, its Austrian subsidiary and an Austrian newspaper distributor. The application was based on certain vertical restraints (...)

Unilateral Practices

The Turkish Competition Authority imposes €17,3 M fine on the incumbent telecommunications operator for its abusive practices in GSM and mobile marketing services market (Turkcell)
Hewlett Packard (Istanbul)
Procedure After the completion of its investigation dated 09 October 2008, the NCA announced the short version of its final decision on 30 December 2009. Turkcell has been accused of abusing its dominant position in GSM services market via exclusive cooperation agreements in mobile marketing (...)

The Belgian competition Council’s College of Prosecutors dismisses multiple complaints against the incumbent telecom operator for abuse of a dominant position on the international transit services for call termination in Belgium (Base / Belgacom)
Liedekerke Wolters Waelbroeck Kirkpatrick (Brussels)
,
Philippe & Partners (Brussels)
I. The Parties Belgacom S.A. is the incumbent operator on the Belgian telecom market. It provides mobile telecom services through its 100% subsidiary Belgacom Mobile Belgium (“BMB” - Proximus). Base S.A. is a 100% subsidiary of KPN, a Dutch landline and mobile telecommunication company. (...)

The College of Competition Prosecutors of the Belgian Competition Council rejects a complaint about termination rates for international calls against incumbent telecoms operator (BASE / Belgacom)
European Commission (Brussels)
Belgium: Complaint about Termination Rates for International Calls against Belgacom rejected On 24 December 2009, the College of Competition Prosecutors of the Belgian Competition Council rejected a complaint by mobile operator BASE against telecom operator Belgacom (incumbent telecoms (...)

The Turkish Competition Authority closes investigation into a state-owned intercity coach station for refusing to allocate a slot to a private coach company (KISOT)
University of Sussex
This study analyses the decision of the Turkish Competition Authority (TCA) in which it has closed its abuse of dominance investigation into the state-owned Kirikkale intercity coach station (KISOT) after six months from its previous cease-and-desist order to halt potentially abusive refusal to (...)

The Czech Competition Office fines a mineral water producing company for export bans but substantially lowers the fine taking into consideration cooperation and commitments (Karlovarské minerální vody)
Kinstellar
On 23 December 2009, the Czech Competition Office (the “Office”) ended an investigation against Karlovarské minerální vody (KMV) for export bans and imposed in a settlement procedure a fine of CZK 5 million (approximately EUR 192,000). This was the fourth case in which the Office had used settlement (...)

The US FTC files complaint concerning harm of competition on the relevant central processing unit and graphics processing unit markets (Intel Corp.)
Stanford University - Stanford Law School
FTC files complaint against Intel Corp.* On 16 December 2009 the FTC issued an administrative complaint against Intel Corp. (“Intel”) claiming that Intel has violated Section 5 of the FTC Act through practices that harm competition in the relevant central processing unit (“CPU”) and graphics (...)

The High Court of Ireland holds that Dublin local authorities abused their dominant position in the household waste collection market in an attempt to remove rival private operators (Nurandale / Panda Waste services)
Arthur Cox (Dublin)
Nurendale Limited t/a Panda Waste Services v Dublin City Council & Ors arises out of a change (“Variation”) to the Waste Management Plan for the Dublin Region 2005-2010 made collectively by the four Dublin local authorities on 3 March 2008. Panda Waste Services (“Panda”) challenged this (...)

A Chinese Court issues second abuse of dominance’s decision under the new anti-monopoly law (Baidu,TRISC)
Jones Day (Beijing)
,
Jones Day (Beijing)
,
Winston & Strawn (New York)
On December 18, 2009, a Chinese court ruled in favor of Baidu, Inc. (“Baidu”), allegedly the largest Chinese search engine company, in a lawsuit filed by Tangshan Renren Information Service Company (“TRISC”), an online information platform. TRISC alleged that Baidu abused its dominant market (...)

The Macedonian Competition Authority defines the waste depot as an essential facility on the market for waste disposal (Komunalna Higiena / Eko Club)
University of Technology (Tallinn)
On 18 December 2009 the Macedonian Competition Authority (KZK) found an abuse of dominant position on the market for waste disposal on the territory of Skopje municipality committed by the public undertaking Komunalna Higiena (KH). KH was the sole undertaking providing waste disposal services (...)

The Macedonian Administrative Court upholds the Competition Authority’s decisions establishing abusive charges on the mobile telecommunications market (T-Mobile)
University of Technology (Tallinn)
In December 2009 the Macedonian Administrative Court has put a full stop in a lengthy litigation process between the Macedonian Competition Authority (KZK) and two mobile phone operators Cosmofon and T-Mobile Macedonia which according to the KZK have abused their dominant positions on the (...)

The European Commission renders legally binding commitment offered by US software undertaking concerning web browsers (Microsoft)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
,
FTI Consulting (Brussels)
"The Commission’s decision in the Microsoft Internet Explorer case and recent developments in the area of interoperability"* I. Commitment decision on the tying of Internet Explorer to Windows A. Introduction On 16 December 2009, the Commission adopted a commitment decision (‘the Decision’) (...)

The Italian Competition Authority accepts commitments proposed by the historical postal operator (Poste Italiane - Aumento Commissione Bollettini C/C)
European Commission (Brussels)
Italy: The Antitrust Authority (ICA) accepts Commitments by Poste Italiane On 16 December 2009, the Italian Competition Authority accepted binding commitments proposed by Poste Italiane during an investigation into a possible abuse of dominant position in the collection and payment services (...)

The Dutch Competition Authority finds no abuse of dominance in the postal sector (TNT)
De Nederlandsche Bank (DNB)
,
Smeets Van Empel advocaten (Amsterdam)
I. Introduction On 15 December 2009 the Dutch Competition Authority (“NMa”) adopted a decision by which it found no signs of abuse of a dominant position by TNT N.V. (“TNT”),an undertaking in the Dutch postal sector. Following a complaint from another undertaking in the postal sector, Sandd (...)

The Latvian Regional Court upholds the decision of the Competition Council and confirms the abuse of dominant position committed by a collecting society (AKKA-LAA)
Competition Council of Latvia
Court Upholds the Decision on Abuse of Dominant Position by Collective Copyright Management Association* With the decision of 11 December 2009 the Administrative Regional Court rejected a claim of the Collective Copyright Management Association AKKA/LAA against the 1 December 2008 decision of (...)

The European Commission welcomes public declaration on FRAND terms to patents essential for various standards set by the ETSI (IPCom)
Stanford University - Stanford Law School
IPCom publicly accepts to take over Bosch’s FRAND terms commitments* On 10 December 2009, the European Commission issued a press release regarding the public declaration by IPCom, a German IP licensing company, in relation to the disputes on a portfolio of patents key to mobile standards (...)

The Italian Competition Authority accepts commitments proposed by the historical electric operator and its subsidiaries to put an end to an abuse of dominant position (ENEL)
European Commission (Brussels)
Italy: The Antitrust Authority accepts Binding Commitments by Enel, Enel Distribuzione and Enel Servizio Elettrico On 10 December 2009, the Italian Competition Authority (ICA) accepted binding commitments by ENEL SpA (a holding of the Enel group), ENEL Distribuzione SpA (which manages (...)

The Macedonian Administrative Court upholds the NCA’s decision establishing abusive charges on the electricity distribution market (Elektrostopanstvo)
University of Technology (Tallinn)
On 10 December 2009 the Macedonian Administrative Court has put a full stop in a lengthy litigation process between the Macedonian Competition Authority (KZK) and incumbent electricity provider Elektrostopanstvo, which according to the KZK has abused its dominant position on the market for (...)

The European Commission renders legally binding commitments offered by US software undertaking to lower memory chip royalty rates (Rambus)
European Commission - DG TRADE
,
European Parliament (Luxembourg)
"Patent ambush in standard-setting: the Commission accepts commitments from Rambus to lower memory chip royalty rates"* I. Introduction Standardisation involves competitors sitting around a table agreeing technical developments for their industry. Normally, antitrust rules do not allow (...)

The European Commission renders legally binding commitments offered by French and German incumbent gas operators concerning long-term capacity bookings (GDF, E.ON)
European Commission - DG COMP (Brussels)
,
European Commission - DG ENER
,
European Commission - DG COMP (Brussels)
The Commission’s GDF and E.ON Gas decisions concerning long-term capacity bookings - Use of own infrastructure as possible abuse under Article 102 TFEU* I. Introduction The Commission’s commitment decisions of December 2009 and May 2010 in the GDFand E.ON Gas cases dealt with foreclosure (...)

Mergers

The US FTC employs a creative remedy, requiring the offer of divestiture to determine the existence of a viable alternative purchaser, before approving the merger of acute care hospitals (King’s Daughters Hospital / Scott & White)
Cleary Gottlieb Steen & Hamilton (Cologne)
,
Cleary Gottlieb Steen & Hamilton (Washington)
After a decade of what was perceived by many as relatively restrained merger enforcement, the Obama administration has repeatedly and vocally vowed to “reinvigorate antitrust enforcement” and to “take effective action to stop or restructure mergers that are likely to harm consumer[s]”. Many (...)

The US FTC requires an unusual method of testing for a less anticompetitive purchaser by offering the sale before completing the requisite due diligence, then clearing the merger in the acute care facilities industry (King’s Daughters Hospital / Scott & White)
Milbank, Tweed, Hadley & McCloy (New York)
,
Jones Day
Healthcare reform and concerns about consolidation in the health care industry juxtaposed with continuing economic distress provided a fascinating backdrop for the Federal Trade Commission’s (FTC’s) recent investigation of Scott & White Healthcare’s consummated acquisition of King’s (...)

The Federal Cartel Office clears in Phase II the acquisition of a business area of Edscha by Webasto, two competitors in a highly concentrated market (Webasto/Edscha)
Gleiss Lutz (Frankfurt)
On 22 December 2009, the German Federal Cartel Office (FCO) issued a decision by which it cleared a merger control concentration between two competing manufacturers of roof systems for convertibles in phase two. The question at stake was whether the intended concentration in a highly (...)

The French Competition Authority publishes guidelines regarding the control of mergers and acquisitions
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence publishes guidelines regarding the control of mergers and acquisitions.* On its Internet site, the Autorité de la concurrence has published new draft guidelines on the control of (...)

The European Commission welcomes the declaration of a telecom operator to take over previous commitment after a merger (Nokia, Bosch, IPCom)
Van Bael & Bellis
Several developments that took place during December 2009 suggest that the issue of standards-setting is one that is currently of renewed interest to the European Commission, and likely to remain that way under the next Commission. On 10 December 2009, the European Commission welcomed the (...)

The Spanish Competition Authority fines infrastructures groups in the logistics and telecoms sectors for not meeting the obligation to notify the acquisition of a service provider of digital terrestrial television and broadcasting transport to television stations (Abertis and Tradia/Teledifusión)
Lonza
,
Cuatrecasas, Goncalves Pereira (Madrid)
On January 26, 2010, the Spanish Authority (Comisión Nacional de la Competencia, “CNC”) jointly and severally fined Tradia Telecom, S.A. (“Tradia”) and its parent companies Abertis Telecom, S.A. and Abertis Infraestructuras, S.A. (collectively referred to as “Abertis”) €143,000 for acquiring (...)

State Aid

The European Commission finds that a tax exemption which the Dutch State intends to grant for natural gas used in installations producing ceramic products is incompatible with EU State aid rules
European Commission - DG COMP (Brussels)
"State aid: main developments between 1 September and 31 December 2009"* After an in-depth investigation opened in February 2009, the European Commission found that a tax exemption which the Dutch state intends to grant for natural gas used in installations producing ceramic products would be (...)

The European Commission approves two State aid measures in favor of a German bank consisting in an injection of capital and an impaired assets relief measure in the form of guarantees for two portfolios of structured securities (Landesbank Baden-Württemberg)
European Commission - DG COMP (Brussels)
"State aid: main developments between 1 September and 31 December 2009"* Landesbank Baden-Württemberg (‘LBBW‘) benefited from two support measures: an injection of € 5 billion of tier-one capital and an impaired assets relief measure in the form of guarantees of € 12.7 billion for two portfolios of (...)

The European Commission endorses a scheme to compensate the Polish postal undertaking for net losses incurred in discharging its public service obligations (Poczta Polska)
European Commission - DG COMP (Brussels)
"State aid: main developments between 1 September and 31 December 2009"* On 15 December 2009, the European Commission also endorsed a scheme to compensate the Polish post for net losses incurred in discharging its public service obligations between 2006 and 2011. The Commission found the (...)

The European Commission endorses commitments made by the Dutch authorities to bring the social housing system into line with EU state aid rules
European Commission - DG COMP (Brussels)
"State aid: main developments between 1 September and 31 December 2009"* On 15 December 2009, the European Commission endorsed commitments made by the Dutch authorities to bring the social housing system into line with EU state aid rules. In particular, the Dutch authorities will ensure that (...)

The European Commission approves State aid measures concerning the recapitalization of a UK bank (Royal Bank of Scotland)
European Commission - DG COMP (Brussels)
"State aid: main developments between 1 September and 31 December 2009"* Under a package of financial support measures approved by the Commission on 13 October 2008, RBS received state recapitalisation of £ 20 billion (€ 22 billion), giving the state a 70 % stake in the bank. Approval of this (...)

The European Commission holds that a corporate tax provision that allows Spanish companies to amortize goodwill constitutes unlawful State aid and orders its recovery
European Commission - DG COMP (Brussels)
"State aid: main developments between 1 September and 31 December 2009"* In 2007, the Commission initiated a formal investigation of a corporate tax provision that allows Spanish companies to amortise goodwill (i.e. write off, over a period of time, the price paid for acquisition of a business (...)

The European Commission adopts a communication amending the temporary framework for State aid measures to support access to finance in the current financial and economic crisis
European Commission - DG COMP (Brussels)
"State aid: main developments between 1 September and 31 December 2009"* On 8 December 2009 a technical amendment to the Temporary Framework was adopted to open up easier access to finance and encourage longterm investment, especially in Member States with low labour costs. Member States will (...)

The European Court of Justice upholds Commission’s appeal against annulment of State aid decision on excise duty exemptions for alumina production (Commission v. Ireland)
Van Bael & Bellis (Brussels)
On 2 December 2009, the Court of Justice (the “ECJ”) set aside the judgment of the Court of First Instance (now the General Court (the “GC”)) that had annulled a Commission’s decision declaring exemptions from the excise duty on mineral oils used as fuel for alumina production in France, Ireland and (...)

Procedures

The Czech Supreme Administrative Court decides that, under Czech legislation in force prior to 1st. Sept. 2009, sanctions for an infringement of competition law may be imposed on the legal successor of the infringing entity where an intra group merger has been carried out in order to avoid said sanctions (Petrol cartel)
European Court of Justice (Luxembourg)
By a judgment of 30 December 2009, the Czech Supreme Administrative Court annulled an earlier judgement by the Regional Court in Brno in the Petrol cartel case over the issue of legal succession with respect to sanctions for an infringement of competition law. During the course of the (...)

The UK Competition Appeal Tribunal denies the claimant damages in first English follow-on damages case to reach trial (Enron Coal Services / English Welsh and Scottish Railway)
Herbert Smith Freehills
Overview In December 2009, the Competition Appeal Tribunal (“Tribunal”) dismissed the follow on damages claim brought by Enron Coal Services Limited (“Enron”) against English Welsh and Scottish Railway Limited (“EWS”). The Tribunal held that Enron had failed to make its case against the Defendant on (...)

The Polish Parliament adopts an act on collective redress
European Commission (Brussels)
Poland: Polish Act on Collective Redress adopted On 17 December 2009, the Polish Parliament adopted the Act on Pursuing Claims in Group Proceedings (hereafter: Act), drafted by the Ministry of Justice. The Act was published in the Official Journal of 18 January 2010 and will enter into force (...)

A Slovak regional Court confirms strict criteria that courts have on reasoning of decisions of the Antimonopoly Office (SLOVNAFT)
Kinstellar (Prague)
,
Kinstellar (Bratislava)
Factual background Regional Court Bratislava (“Court“) overruled, in its judgment dated 15 December 2009, two decisions of the Slovak Antimonopoly Office (the “AMO”), namely the first instance decision No. 2006/DZ/2/1/140 dated 22 December 2006 and the appellate decision No. 2007/DZ/R/2/102 dated (...)

The Hungarian Parliament grants rewards to individual whistle blowers
Van Bael & Bellis (Brussels)
On 14 December 2009, the Hungarian parliament adopted an anti-bribery law (law 163 of 2009), introducing an informant fee for individuals who provide the Hungarian Competition Authority (the “GVH”) with evidence of an infringement of Article 101 TFEU or the corresponding provision of the (...)

The Spanish Supreme Court passes an important judgment concerning the violation of the right to rely on all relevant evidence in an antitrust case (SOS Cuetara)
European Court of Justice (Luxembourg)
,
Garrigues
Introduction On 10 December 2009, the Spanish Supreme Court (Tribunal Supremo) passed an important judgment concerning the limits of the notion of due process under Spanish law. In particular, the Supreme Court shed some light on the consequences of the violation of the right to rely on all (...)

The Spanish Supreme Court’s ruling on the breach of the rights of defence of a company subject to a competition investigation represents a victory for due process (SOS Cuetara)
Airbus Defence and Space (Toulouse)
This judgment marks the end of a case which began in April 2005, when the Spanish Competition Authority (ANC) opened an investigation into the Spanish olive oil market following a complaint from a consumer protection association. A number of food distributors and a major olive oil producer were (...)

The Slovak Competition Authority holds that health insurance companies carrying on public health insurance are not subject to the Slovak Competition Act (Report on Health Insurance sector)
BPV Braun Partners
On December 3, 2009 the Antimonopoly Office of the Slovak Republic (“Office”) released its report on general investigation with regard to a planned merger of two state-owned health insurance companies engaged in public health insurance. The Office found that providing for public health insurance (...)

The Hungarian Supreme Court defines the extent of client-attorney privilege in competition proceedings (BH 2009.364)
Oppenheim
,
Oppenheim - Budapest
In December 2009 the Supreme Court published a significant individual decision (under No. BH 2009.364), in which it confirmed that communication between client and attorney, even if occurred before the initiation of the respective competition proceedings by the HCO, may still be subject to (...)

The Hungarian Parliament adopts new procedural rules rewarding individuals for reporting hard-core cartels (Act CLXIII of 2009 on the protection of fair procedures)
Oppenheim
,
Oppenheim - Budapest
In December 2009, the Hungarian Parliament adopted Act CLXIII of 2009 on the protection of fair procedures (“Fair Procedures Act”) which aims to enforce the right to fair trial in the field of public finance, public procurement and competition procedures. The Fair Procedures Act enters into force (...)

Regulatory

The French electronic communications Regulator defines the access obligations imposed on “in-building operators” in the context of the roll-out of the fibre networks
French Competition Authority (Paris)
Further to a long-lasting public consultation, alongside the European Commission analysis on the appropriate fibre lines’ regulation, ARCEP, (the National Regulatory Authority - NRA) adopted a decision and a recommendation on the access obligations imposed on undertakings deploying in-building (...)

The French Competition Authority issues an opinion on the possible implementation of a single price system for digital books
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Digital books: the Autorité de la concurrence believes that observing this market, still in its infancy, is a necessary prerequisite.* The Minister for Culture and Communication has sought an opinion from the (...)

The Irish Competition Authority publishes report on general medical practitioners and identifies unnecessary restrictions on the supply of family doctors
European Commission (Brussels)
Ireland: The Competition Authority identifies Unnecessary Restrictions on the Supply of Family Doctors and publishes Report on General Medical Practitioners On 16 December 2009, the Irish Competition Authority published the first two parts of a threepart report into the market for primary (...)

The Dutch Competition Authority publishes a study on the costs and margins in the food production chain
European Commission (Brussels)
The Netherlands: The NMa increases Transparency of Price-Formation Mechanism in Food Production Chain On 2 December 2009, the NMa published a study which provides insight into the costs and margins in the food production chain in the Netherlands, from producer to supermarket, for the following (...)

The Portuguese Competition Authority issues a study on mobility in the retail banking sector
European Commission (Brussels)
Portugal: The Competition Authority (PCA) concludes a Study on Mobility in the Retail Banking The Study on Mobility in the Retail Banking Sector(conducted together with the Portuguese Central Bank) aimed at characterizing the degree of mobility of retail banking clients and identifying factors (...)

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