December 2012

Anticompetitive practices

The Polish Competition Authority considers that a consortium agreement between businesses that could make an offer independently constitutes an infringement of competition law (Management of Municipal Property in Bialystok)
Wierzbicki Adwokaci i Radcowie Prawni
Members of consortia competing in public tenders are often not even aware of the risk of breaching the Act on Competition and Consumer Protection, and the potential (serious) consequences. The to-date position of the Office of Competition and Consumer Protection (UOKiK) related to consortia (...)

The Polish competition authority issues a precedent on antitrust assessment of bidding consortia (ASTWA / MPO)
Dentons (Warsaw)
In 2008 the UOKiK Chairperson received a complaint regarding alleged tendering collusion between Przedsiębiorstwo Usługowo – Asenizacyjne ASTWA sp. z o.o. (“ASTWA”) and MPO sp. z o.o. (“MPO”) in respect of a tender organized by Zarząd Mienia Komunalnego in Białystok (“ZMK”) and decided to initiate (...)

The Polish Competition Authority denies an individual exemption in the case of a RPM agreement concluded on the market for automotive lubricants (Orlen Oil)
Wiercinski Kwiecinski Baehr (Poznan)
Polish competition authority : plans to launch a new product can hardly offer a justification for resale price maintenance* The Polish competition authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, “PCA”) has recently addressed the issue of resale price maintenance clauses (“RPM”) (see (...)

The Polish Office of Competition and Consumer Protection finds that the agreements between a manufacturer and distributor of lubricants and its distributors breach national competition law (Orlen Oil)
SADKOWSKI I WSPÓLNICY RADCOWIE PRAWNI I ADWOKACI
On December 31, 2012, Polish Office of Competition and Consumer Protection found the agreement entered into by the Polish company Orlen Oil, which is responsible for comprehensive manufacturing and distribution of lubricants, to be limiting competition in the wholesale sales of lubricants in (...)

The Chinese Competition Authorities impose fines on insurance association and member companies for price monopoly (Loudi Insurance Association, Renbao, Ping’an, Tian’an, Taipingyang, Zhonghua Lianhe, Dubang)
University of Political Science & Law of China
I. Introduction On December 28, 2012, the Price Bureau of Hunan Province in China announced its decision to levy a fine totaling ¥2.19 million on an insurance association and six of its members for anti-competitive practices in the local auto insurance market. With no appeal made for (...)

The German Competition Authority fines two major TV broadcasting groups and two individuals for entering into anticompetitive agreements when they introduced the encryption of their digital free TV programmes (Pro7Sat1 and RTL)
European Commission
Germany: The Bundeskartellamt imposes Fines on Pro7Sat1 and RTL on account of Agreements on basic Encryption of TV Programmes and secures unencrypted SD TV* On 28 December 2012 the Bundeskartellamt (BKartA) imposed fines totalling approximately € 55 000 000 on the two major German TV (...)

The German Federal Cartel Office imposes fines against two private TV-broadcasting groups (Pro7Sat1 and RTL)
King’s College (London)
On 28 December 2012, the German Federal Cartel Office (FCO) has imposed a total fine of 55 million Euros against the two private TV-broadcasting groups Pro7Sat1 and RTL, as well as two individuals. The two undertakings allegedly entered into an anti-competitive agreement. The FCO found that in (...)

A US Federal Court of Appeals reaffirms flexible legal standard for restraints in competitor collaborations (Ohio Chemical Services / Falconbridge)
Jones Day (Cleveland)
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Jones Day (Cleveland)
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Jones Day (Chicago)
A new decision by a U.S. federal judge and leading antitrust scholar has reaffirmed the U.S. antitrust principle that competitive restraints adopted to foster competitor collaborations will not be summarily condemned under the per se rule, but instead evaluated under a rule of reason analysis (...)

The Croatian Competition Agency imposes the highest ever fine for a cartel in a case involving bus operators (Presečki grupa)
University of Zagreb - Faculty of Economics and Business
The Croatian Competition Agency adopted on 27 December 2012 a decision finding that four bus operators established a cartel between themselves. The fine that was pronounced by the Agency is the first significant fine since the Agency got the power to directly fine undertakings under the (...)

A US Federal Appeals Court reaffirms flexible legal standard for restraints in competitor collaborations (Sulfuric acid antitrust litigation)
Jones Day (Cleveland)
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Jones Day (Cleveland)
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Jones Day (Chicago)
A new decision by a U.S. federal judge and leading antitrust scholar has reaffirmed the U.S. antitrust principle that competitive restraints adopted to foster competitor collaborations will not be summarily condemned under the per se rule, but instead evaluated under a rule of reason analysis (...)

The Croatian High Administrative Court upholds the decision of the Croatian Competition Authority concerning a rebate scheme applied by a mobile phone operator and its distributors (VIPnet)
University of Technology (Tallinn)
On 24 December 2012 the Croatian High Administrative Court (VUS) upheld the infringement decision issued by the Croatian Competition Authority (AZTN) against a mobile telecom operator VIPnet concerning the anti-competitive agreements in the form of the maximum rebates allowed to the (...)

The UK Supreme Court grants permission to appeal against the Court of Appeal’s judgement that struck out a cartel damages claims on the ground that they were out of time (Deutsche Bahn)
The University of Manchester
Introduction Deutsche Bahn v Morgan Crucible is a well-litigated case, with a judgment from the Court of Appeal and the granted permission to appeal to the Supreme Court. Taking into account the novel issues involved in this case, it appears reasonable that the Supreme Court wants to resolve (...)

The Swedish Market Court sees a non profit association for motor sports as an undertaking and rules against certain prohibitive rules (Svenska Bilsportsforbundet)
Baker McKenzie (Stockholm)
The "Svenska Bilsportförbundet" ("SBF") is a non-profit organisation adopted by the National Sports Federation ("Riksidrottsförbundet") as a "special sports federation" for the organisation of motorsports in Sweden. The SBF organises a number of motorsport organisations in Sweden. For the (...)

The Belgium Constitutional Court rules that fines imposed under Reg. n°1/2003 are not tax deductible under Belgian law (Tessenderlo Chemie)
Liège University - IEJE
I. Facts The European Commission opened an enquiry about alleged violation of EU competition law against Tessenderlo Chemie, a Belgian company. Tessenderlo Chemie made provisions in order to pay the expected fine. These provisions were tax exempted until 2008 when article 53 of the Belgian (...)

The Finnish Competition Authority proposes that the Market Court impose a EUR 70 M fine on dairy producer for predatory pricing (Valio)
Roschier (Helsinki)
On 20 December 2012, after a long investigative period, the Finnish Competition Authority (“FCA”, now the Finnish Competition and Consumer Authority, “FCCA”) proposed to the Market Court that a 70 MEUR fine should be imposed on Valio for abuse of its dominant position in the market for production (...)

The Swedish Market Court prohibits the application of excessively stringent loyalty rules (Swedish Automobile Sports Federation)
Swedish Competition Authority (Stockholm)
Good for competitors, spectators and the development of automobile sports* The decision of the Swedish Market Court stating that the Swedish Automobile Sports Federation may not apply their loyalty rules is good for those involved in automobile sports as well as for the spectators. “I am very (...)

The EU Commission renders legally binding commitments regarding competition concerns on markets for aluminium smelting equipment (Rio Tinto Alcan)
Ashurst (Milan)
European Commission renders legally binding commitments on Rio Tinto Alcan* On 20 December 2012, the Commission issued a press release stating that it has made legally binding the commitments offered by Rio Tinto Alcan (“Alcan”) to address the Commission’s concerns that Alcan might have infringed (...)

The UK Competition Appeal Tribunal establishes the limited probative value of early resolution agreements in the context of the present appeal concerning the participation of a retailer in unlawful practices as regards cheese pricing (Tesco / OFT)
Blackstone Chambers
Tesco scores partial victory in cheese cartel* In a judgment handed down this afternoon, the Competition Appeal Tribunal largely upheld Tesco’s appeal against the OFT’s decision that it had participated in unlawful agreements relating to the price of cheese: see Tesco Stores Ltd v Office of Fair (...)

The French Competition Authority fines several companies solding show tickets for entering into anticompetitive agreements (Fnac, France Billet & Ticketnet)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence fines the companies Fnac, France Billet and Ticketnet for entering into anticompetitive agreements* Following a referral from the French Minister for Economy, the Autorité de la (...)

The Czech Supreme Administrative Court is not ready to accept a symbolic fine against an association of undertakings involved in a price fixing case (Association of Applied Graphics and Design)
Weil, Gotshal & Manges (Prague)
On 20 December 2012, the Supreme Administrative Court cancelled the judgment of Regional Court in Brno in the case regarding Association of Applied Graphics and Design (the “Association”) and remanded the case back to it. The Regional Court in Brno previously mitigated the fine imposed by the (...)

The German Competition Authority declares legally binding commitments offered by airline company regarding specific issues with its data tracking methods (Lufthansa)
European Commission
Germany: Lufthansa changes anticompetitive Clauses in Corporate Client Programme* On 20 December 2012 the Bundeskartellamt (BKartA) declared commitments of Lufthansa binding regarding specific issues with Lufthansa’s data tracking methods. The proceedings against Lufthansa were triggered by (...)

The Lithuanian Competition Council imposes fines on cash handling services provider and three banks for restricting competition in cash handling and cash in transit services (G4S Lietuva, DNB bank, SEB bank and Swedbank)
European Commission
Lithuania: The Competition Council imposes Fines on Cash Handling Services Provider and three Banks for Restricting Competition in Cash Handling and Cash in Transit Services* On 20 December 2012, the Lithuanian Competition Council (CC) imposed fines exceeding LTL 57 000 000 (approximately € 16 (...)

The Swedish Market Court adopts a decision stating that a sport automobile federation cannot apply its loyalty rules in the future (Automobile Sports Federation)
European Commission
Sweden: Market Court’s Decision in Automobile Sports Federation Case* On 20 December 2012, the Swedish Market Court (the Court) adopted a decision stating that the Swedish Automobile Sports Federation (the Federation) cannot apply its loyalty rules in the future. In May 2011, the SCA issued a (...)

The Lithuanian Competition Council fines security services provider and three banks for anticompetitive agreements concerning cash handling and cash-in-transit services (G4S Lietuva, DNB bank, SEB bank, Swedbank)
Valiunas Ellex (Vilnius)
The Lithuanian Competition Council (the Council) imposed a total fine of over EUR 16 million on G4S Lietuva (G4S), a provider of security services, and three major banks in Lithuania - DNB bank, SEB bank and Swedbank (collectively - the Banks) – for vertical agreements restrictive of competition (...)

The German Constitutional Court confirms legality of obligation to pay interest for the period of an unsuccessful appeal against a cartel decision (Zinsverpflichtung)
Mayer Brown (Brussels)
In its judgment of 19 December 2012, the German Constitutional Court held that the obligation to pay interest requested by a penalty notice of the German Federal Cartel Office ("FCO") against legal persons or associations pursuant to Sect. 81(6) Act Against Restraints of Competition ("ARC") (...)

The Irish Competition Authority issues a guidance note setting out its view concerning preferred repairer arrangements in the insurance market
Irish Competition Authority
Competition Authority guidance on preferred repairers in the insurance market* The Competition Authority regularly receives complaints about ‘preferred repairer’ arrangements in the insurance market. We have assessed these arrangements from a competition perspective and published a guidance note (...)

The Croatian High Administrative Court upholds the decision of the NCA concerning anti-competitive practices in the market for office supplies (Association of office supplies retailers)
University of Technology (Tallinn)
On 19 December 2012 the Croatian High Administrative Court (VUS) upheld the infringement decision of the Croatian Competition Authority (AZTN) against the Association of office supplies retailers (TUM) and its nine members that have infringed the national equivalent of Article 101 TFEU by (...)

The Irish Competition Authority issues guidance note on preferred repairer arrangements in the insurance sector
Queen’s University Belfast
In December 2012, the Irish Competition Authority (ICA) issued a Guidance Note on Preferred Repairer Arrangements in the Insurance Sector. As broadly defined by the ICA, these arrangements are arrangements that insurance companies enter into with service providers to provide repair, restoration (...)

The Hungarian Competition Authority puts an end to a long running investigation into a possible cartel infringement by sugar producers (Sugar Cartel)
Allegro Consulting
1. Introduction On 19 December 2012, the Hungarian Competition Authority (GVH) put an end to a long running investigation into a possible cartel infringement by Hungarian sugar producers. The alleged infringement concerned the three main sugar producers in Hungary: Nordzucker Group (the parent (...)

The Danish Parliament amends the competition act
European Commission
Denmark: Competition Act amended* On 19 December 2012, a revised competition act was adopted. The amendments that come into force on 1 March 2013 are compiled in the Consolidated Act No. 23 of 17 January 2013. The legal framework for sanctioning infringements of the Danish competition act is (...)

The Federal Court of Australia rejects competition law challenge to thoroughbred horse racing rules that exclude thoroughbred bred by artificial insemination (McHugh v The Australian Jockey Club)
Brent Fisse Lawyers (Paddington)
1. Artificial insemination and thoroughbred racehorses –anti-competitive agreements and the decision in McHugh v The Australian Jockey Club Limited [2012] FCA 1441(19 December 2012) Thoroughbred horse racing around the world is governed by rules that do not allow thoroughbreds bred by (...)

The Czech Competition Authority fines waste management companies for bid rigging (ASA, van Gansewinkel, SITA, AVE)
Kinstellar (Prague)
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Kinstellar (Prague)
On 19 December 2012 the Czech Competition Authority (the "Authority") imposed on four companies active in the area of waste management (some of them are also active in the market of road maintenance) a total fine of CZK 96,579 million (approximately EUR 3,825,000). The companies A.S.A., spol. (...)

The Irish Competition Authority obtains legally binding commitments against a distributor to cease resale price maintenance (BBS)
Queen’s University Belfast
1. Legal Background Among the augmentations of Ireland’s competition regime made by recent amendments to the Competition Act 2002 is section 14B. This new section of the Competition Act provides that the Competition Authority, after an investigation of anticompetitive practices by an (...)

The Dutch Competition Authority fines of more than € 4 M on seven growers and processors of first year onion sets for having reduced their harvest in order to push prices up and thereby infringing EU and Dutch competition law (Onion Sets Cartel)
European Commission
The Netherlands: The Competition Authority fines Onion Sets Cartel* On 18 December 2012, the Netherlands Competition Authority (NMa) imposed fines of more than € 4 000 000 on seven growers and processors of first year onion sets for having reduced their harvest in order to push prices up, (...)

A German Court of appeal confirms that the EU concept of an "economic unit" does not apply under German law but rather the principle of legal personality (Silostellgebühren II)
Mayer Brown (Brussels)
The judgment of 17 December 2012 of the Higher Regional Court Düsseldorf ("Court") deals with the interpretation of Sect. 81(4) Act against Restraints of Competition ("ARC"), which is the statutory basis for the German Federal Cartel Office ("FCO") to issue a fine for antitrust infringements. (...)

The German Federal Cartel Office accepts commitments offered by German airline concerning its contracts with business clients and the collection of sensitive client information which might be anti-competitive (Lufthansa)
King’s College (London)
The commitments decision concerns the Federal Cartel Office’s (FCO) proceedings against Lufthansa‘s contracts with business clients and the collection of sensitive client information which might be anti-competitive. Background The FCO commenced proceedings against Lufthansa in September 2009, (...)

The UK Competition Authority closes its investigation into alleged price-fixing between two airlines contrary to Chapter I of the Competition Act 1998 and Article 101(1)TFEU due to inconsistent evidence (Cathay Pacific Airways and Virgin Atlantic)
University of Southampton
The UK Office of Fair Trading investigated, under Chapter I of the Competition Act 1988, whether employees of Virgin Atlantic and Cathay Pacific Airways had exchanged commercially sensitive information in order to coordinate prices in relation to passenger services on the London to Hong Kong (...)

The Romanian Competition Authority sanctions five companies for bid rigging in road construction projects (C.N.A.D.N.R)
Nestor Nestor Diculescu Kingston Petersen (Bucharest)
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Nestor Nestor Diculescu Kingston Petersen (Bucharest)
On 13 December 2012, the Romanian Competition Council (“RCC”) sanctioned five companies a total of more than EUR 660,000 for engaging in bid rigging activities in the public procurement procedures organized by the Romanian National Company of Motorways and National Roads (“C.N.A.D.N.R.”). In (...)

The EU Court of Justice establishes that a national competition authority does not have to prove appreciable effect on competition for object agreements (Expedia)
Lancaster University
Anti-Competitive Agreements: knowing your ‘object’ from your ‘appreciable’ Posted on February 11, 2013* In October 2012 Christopher Brown posted an interesting blog on AG Kokott’s opinion in Case C-226/11 Expedia. The full judgment was delivered on 13 December 2012 and it seems appropriate to look (...)

The Croatian High Administrative Court confirms the decision of Competition Agency on illegal price fixing agreement in the residential management services market (Stano-uprava)
University of Zagreb - Faculty of Economics and Business
The High Administrative Court of the Republic of Croatia adopted on 13 December 2012 a judgment confirming the legality of a decision of the Croatian Competition Agency finding an illegal price fixing agreement between seven providers of residential management services in the city of Split and (...)

The EU Court of Justice rules that a national competition authority is not precluded from applying Article 101(1) TFEU to an agreement situated below the threshold specified by de minimis notice (Expedia)
University of Leeds
Article published on Centre for Competition Policy blog. The Court of Justice’s Expedia ruling undermines the economic approach by eliminating the ‘de mimimis’ defence in object agreements* One of the most important holdings of the Court of Justice in recent times is buried in paragraph 37 of (...)

The EU Court of Justice rules that if there is an appreciable restriction of competition, national competition authorities may apply Art. 101(1) TFEU even if de minimis threshold is not reached (Expedia)
University College London
In a reference for a preliminary ruling under Article 267 TFEU, from the Cour de cassation (France), made by decision of 10 May 2011 in relation to proceedings between the company Expedia Inc. (’Expedia’) and the Autorité de la concurrence (’the Competition Authority’) the ECJ (Second Chamber) was (...)

The EU General Court dismisses four appeals in calcium carbide and magnesium reagents cartel case (Novácke chemické závody, Ecka Granulate, Almamet, 1. garagtovaná)
Van Bael & Bellis (Brussels)
On 12 December 2012, the General Court (“GC”) dismissed appeals by four undertakings against a Commission decision fining them for their involvement in a cartel affecting the supply of calcium carbide and magnesium reagents. The Commission’s July 2009 decision imposed fines of € 61 million (...)

The EU Commission finds that given the nature of the relevant product, concerted practices covering a substantial part of the EEA may affect the interstate trade (e-books)
University of South Australia
Sad but true* I love commitments decisions because they are a quick read. But I also hate dislike them because they leave the reader angry hungry for more. Some evidence: in the E-Books case, the effect on trade condition was deemed fulfilled under the simplest possible sort of analysis: (...)

The European Commission accepts commitments in e-books case (Simon & Schuster, Harper Collins, Hachette, Holtzbrinck and Apple)
European Commission
European Commission accepts Commitments in E-Books Case* On 12 December 2012, the European Commission (Commission) accepted formally binding commitments from four international publishers (Simon & Schusters (CBS Corp., USA), HarperCollins (News Corp., USA), Hachette Livre (Lagardère (...)

The French Competition Authority fines a manufacturer which prohibited internet sales by its distributors (Bang & Olufsen)
Google (Paris)
Ten years! It took no less than ten years to decide whether it is lawful for a manufacturer to prevent online sales to its distributors. Compared to the speed at which businesses evolve on the internet, that is as if the conduct subject to scrutiny lasted half a century… In February 2002, the (...)

The Swiss Competition Commission joins the US DOJ, the EU Commission and other antitrust authorities in imposing fines to domestic and foreign freight forwarders (Kuehne + Nagel International, Panalpina Welttransport, Agility Logistics International, Deutsche Bahn, Deutsche Post, Spedlogswiss)
Bourgeois Avocats
Introduction After a five and a half years long investigation, the Swiss Competition Commission (COMCO) eventually joined US and EU antitrust authorities in sanctioning price fixing agreements related to a variety of fees charged to clients purchasing international freight forwarding services (...)

The US Supreme Court grants certiorari to consider the legality of reverse payment settlements (Actavis)
Stanford University - Stanford Law School
U.S. Supreme Court grants certiorari to consider the legality of reverse payment settlements* On 7 December 2012 the U.S. Supreme Court granted a petition to consider whether reverse payment settlement agreements are per se lawful or presumptively anti-competitive. In the case (U.S. Federal (...)

The US Supreme Court reviews Eleventh Circuit’s decision regarding reverse payment patent settlements (AndroGel)
Gibson Dunn (New York)
Important U.S. Developments Relating to “Reverse Payment” Patent Settlements* There have been two key recent developments in the U.S. relating to the legal dispute over patent settlements including so-called “reverse payments.” First, the U.S. Supreme Court has agreed to review an Eleventh Circuit (...)

The EU Court of Justice clarifies the circumstances in which a Commission decision may be partially annulled (Coppens)
London School of Economics
1. Introduction ‘When may the General Court of the European Union annul an antitrust decision by the European Commission in its entirety and when must it be satisfied with a partial annulment?’ According to Advocate General Kokott, this is the central question of law raised in the present case. (...)

A US District Court holds that “No-AG” agreements are not “Reverse Payments” (Lamictal litigation)
Gibson Dunn (New York)
Important U.S. Developments Relating to “Reverse Payment” Patent Settlements* There have been two key recent developments in the U.S. relating to the legal dispute over patent settlements including so-called “reverse payments.” First, the U.S. Supreme Court has agreed to review an Eleventh Circuit (...)

The Spanish National Court annuls CNC Decision closing pharmaceutical dual pricing case (European Association of Euro-Pharmaceutical Companies, Pfizer, Novartis, Sanofi-Aventis)
Cuatrecasas, Goncalves Pereira (Madrid)
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Cuatrecasas, Goncalves Pereira (Barcelone)
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Allen & Overy (Madrid)
On December 5, 2012, the Spanish National Court (Audiencia Nacional or “AN”) annulled the decision of the Spanish Competition Commission (formerly called Comisión Nacional de la Competencia or “CNC”), to close file S/0017/07. The AN considered that the CNC should have further investigated whether (...)

The European Commission imposes fines on producers of TV and computer monitor tubes for two decades long worldwide cartel (LG Electronics, Philips, Samsung SDI)
Largest Cartel Fine by the EU Commission* The EU Commission imposed fines on producers of TV and computer monitor tubes a total of € 1.47 billion for two decade-long cartels that operated worldwide (The press release is available here). Members of cartels include major firms like Philips, LG, (...)

The European Commission fines 7 international groups of companies a total of € 1 470 515 000 for participating in either one or both of two distinct cartels in the sector of cathode ray tubes (CRT Cartel)
European Commission
European Commission fines seven international groups of companies a total of € 1 470 515 000 for participating in either one or both of two distinct cartels in the sector of cathode ray tubes* On 5 December 2012, the European Commission (the Commission) has fined seven international groups of (...)

The Swedish Market Court reviews and bans a system of warranty where only authorized undertakings could make service and repairs for the warranty to be valid (Sveriges Bildelsgrossisters förening/KIA Motors Sweden)
Baker McKenzie (Stockholm)
Sveriges Bildelsgrossisters Förening ("SBF") is a non-profit trade association for Swedish suppliers of spare parts to cars, which association has the objective to protect the member companies’ joint interests. Kia Motor Corporation is a South Korean car manufacturer that established operations (...)

The Spanish Court of appeal for antitrust cases annuls the NCA’s fine of €120 M imposed on eight insurance companies allegedly involved in a price fixing cartel (Caser, Scor, Múnchener)
Jones Day (Madrid)
Spain’s Audiencia Nacional, the court of appeal for antitrust cases, has annulled the Spanish Competition Commission’s ("SCC") fine of €120 million (US$160 million), the highest fines to date, imposed on eight insurance companies allegedly involved in a price fixing cartel in Spain. It is unusual (...)

Unilateral Practices

The EU Commission sends statement of objections regarding its alleged abuse of mobile phone standard-essential patents (Samsung)
Ashurst (Milan)
European Commission sends Samsung Statements of Objections regarding its alleged abuse of mobile phone standard-essential patents* On 21 December 2012, the European Commission sent a Statement of Objections to Samsung, based on concerns that Samsung’s conduct in seeking injunctions against (...)

The EU Commission sends a statement of objections to a mobile operator over alleged misuse of mobile phone standard essential patents (Samsung)
Van Bael & Bellis
On 21 December 2012, the European Commission announced that it had sent Samsung a Statement of Objections (“SO”) over its alleged misuse of mobile phone standard essential patents. In January 2012, the Commission had opened a formal investigation against Samsung Electronics following (...)

The French Competition Authority renders legally binding some commitments offered to solve competition concerns raised in the distribution of insurance products to golfers (Eurogolf / Fédération Française de Golf)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence makes the commitments proposed by the ’Fédération Française de Golf’ mandatory. Golf players (or licensees) may take out insurance of their choice, which may differ from that offered (...)

The EU Commission considers that the commitments proposed by the dominant undertaking in the worldwide market for consolidated real-time datafeeds were sufficient to address the abusive restrictions concerning the use of financial instrument codes (Reuters Instrument Codes)
Norton Rose Fulbright (Brussels)
The Thomson Reuters Commitment Decision* On November 12, 2013, the European Commission published a summary of its December 20, 2012 decision (the “Decision”) accepting commitments offered by members of the Thomson Reuters group (“Thomson Reuters”). The Decision ended a three-year-long (...)

The EU Commission renders legally binding commitments concerning the use of RICs for data sourced competitors (Thomson Reuters)
Ashurst (Milan)
European Commission accepts commitments from Thomson Reuters* On 20 December 2012, the Commission issued a press release stating that it has made legally binding the commitments offered by Thomson Reuters to address the Commission’s concerns that Thomson Reuters might have abused its dominant (...)

The EU Commission adopts decision rendering international news media agency’s commitments legally binding (Thomson Reuters)
Van Bael & Bellis (Brussels)
On 20 December 2012, the Commission announced that it had adopted a decision that renders legally binding the commitments offered by Thomson Reuters to create a new licence ("ERL") allowing customers, for a monthly fee, to use Reuters Instrument Codes (“RICs”) for data sourced from Thomson (...)

The Greek Competition Commission fines the Hellenic gas transmission system operator for abusing its dominant position in the primary market of natural gas transmission (DESFA)
University of Reading
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University of Reading
Involved parties and alleged practices In December 2009 the major Greek manufacturer of alumina and aluminium products ALUMINIUM S.A. (hereinafter: the complainant), which is also active in the market of production of electricity using natural gas, lodged a complaint before the [national] (...)

The Finnish Competition Authority proposes fines for abuse of dominant position in fresh milk market (Valio)
European Commission
Finland: The Competition Authority proposes Fines for Abuse of Dominant Position in Fresh Milk Market * On 20 December 2012, the Finnish Competition Authority (FCA), now the Finnish Competition and Consumer Authority (FCCA), proposed to the Market Court to impose on Valio Oy (Valio) a € 70 000 (...)

The Spanish Competition Authority fines three mobile operators for abusing their dominant position in wholesale telephone short messaging markets (Telefónica, Vodafone and Orange)
European Commission
Spain: The Comisión Nacional de la Competencia fines Telefónica, Vodafone and Orange for abusing their Dominant Position in Wholesale Telephone Short Messaging Markets* In its resolution of 19 December 2012, the Comisión Nacional de la Competencia (CNC) Council found that the three mobile (...)

The Spanish Competition Authority imposes fines of nearly € 120 M on telecom operators for having abused of their dominant position in the wholesale telephone sort messaging market (Telefonica / Vodafone / Orange)
University of Castilla-La-Mancha (UCLM)
The Council of the CNC (Comisión Nacional de la Competencia) has ordered fines of € 46.490,00 on Telefónica Móviles España, € 43.525,00 on Vodafone and € 29.950,00 on Orange. In January of 2011 the Investigations Division of the Spanish Competition Authority opened an infringement proceeding against (...)

The French Competition Authority fines national incumbent railway operator for unilateral practices and imposes injunction (SNCF)
European Commission
France: The Autorité de la Concurrence fines national incumbent Railway Operator SNCF for Unilateral Practices and imposes Injunction* On 18 December 2012 the Autorité de la concurrence (the Autorité) imposed on SNCF, the national incumbent railway operator, a fine of € 60 900 000 as well as an (...)

The Swedish Market Court annuls interim order prohibiting the ice hockey league association from boycotting players from north america’s hockey league (Svenska Hockeyligan)
European Commission
Sweden: The Competition Authority’s Interim Order prohibiting Hockeyligan from boycotting NHL Players annulled by Swedish Market Court* On 18 December 2012, the Swedish Market Court (the Court) has annulled the Swedish Competition Authority’s (SCA) interim order prohibiting the Swedish ice (...)

The French Competition Authority fines national incumbent raiwail for abusing its dominant position in the context of the opening up to competition of the rail transport sector (SNCF)
Vogel & Vogel
Further to an ex-officio investigation in 2008 and a complaint filed by Euro Cargo Rail in 2009, the French Competition Authority has found the SNCF guilty of several instances of abuse of dominant position in the context of the opening up to competition of the rail transport sector. After (...)

The Irish Competition Authority launches a public consultation as part of its study of competition in the national ports sector
Irish Competition Authority
Competition Authority launches public consultation on the ports sector* The Competition Authority has launched a public consultation as part of its study of competition in the Irish ports sector, following a request by the Minister for Jobs, Enterprise & Innovation, Richard Bruton T.D.. (...)

The Latvian Competition Council imposes fines on a dominant undertaking for enforcing unfair trading conditions on a dependant wholesaler in the consumer goods and retail sector (Drogas)
Competition Council of Latvia
The Competition Council Fines Retail Chain for Abuse of its Market Power* On 14 December 2012, the Competition Council adopted a decision to fine AS Drogas which is the largest retail chain in the sector of health, beauty and household goods retail in Latvia. It was established that AS Drogas (...)

The French Competition Authority imposes fines on two companies for implementing anticompetitive practices in the mobile telephony sector (Orange and SFR)
French Competition Authority (Paris)
Press release published on the official website of the French Competition Authority. The Autorité de la concurrence fines Orange and SFR a total of €183 million for implementing anticompetitive practices in the mobile telephony sector. Orange and SFR marketed offerings, mainly between 2005 and (...)

The French Competition Authority fines two leading mobile phone operators for applying unjustified rate differentiation practices between calls made within their own network and calls to a rival network (Orange, SFR)
European Commission
France: The Autorité de la concurrence fines two Telecom Operators in Mobile Telephony Sector* On 13 December 2012, following a complaint by Bouygues Télécom, a mobile phone operator, the Autorité de la concurrence (the Autorité) fined the two leading mobile phone operators, Orange and SFR a (...)

The French Competition Authority fines two mobile phone operators for abusing their dominant position on the French mobile phone market (Orange France, SFR)
University Dublin College (UCD)
On 13 December 2012, The French National Competition Authority (Autorité de la concurrence,hereafter “the FCA”) fined two of the three major French mobile network providers (Orange France and SFR) €183 million for abuse of dominant position in the mobile telephony sector. The FCA investigated the (...)

The French Competition Authority imposes fines totalling € 183.1 M on two leading mobile operators for implementing abusive rate differentiations (Orange, SFR)
Baker Botts (Brussels)
Following a complaint lodged in 2006 by the then latest market entrant, Bouygues Télécom, the French Competition Authority (hereinafter the ‘FCA’) adopted on 13 December 2012 a 171-page long decision (hereinafter the ‘Decision’) by which it sanctioned the two largest French mobile network operators (...)

The Federal Court of Justice of Germany clarifies that ‘legal impossibility’ can be used as a justification for denying a potential competitor access to essential facilities and provides guidance on the respective burden of proof (Ferry Port Puttgarden II)
Freshfields Bruckhaus Deringer (Berlin)
,
Hogan Lovells (Munich)
I. The Facts Scandlines Deutschland GmbH (Scandlines) is the owner of the Puttgarden/Fehmarn ferry port in Germany and the sole provider of ferry services between Puttgarden and Rødby/Lolland in Denmark. Two Norwegian shipping companies sought access to the ferry port in Puttgarden in order to (...)

The German Federal Court of Justice clarifies conditions for invoking “legal impossibility” as justification for refusal to grant access to an essential facility (Scandlines)
Van Bael & Bellis (Brussels)
By judgment of 11 December 2012, recently published, the German Federal Court of Justice (“BGH”) annulled the judgment of the Higher Regional Court of Düsseldorf (“OLG Düsseldorf”) of 7 December 2011 and ruled that Scandlines Deutschland GmbH (“Scandlines”), which is the owner of the ferry port (...)

The Romanian Competition Authority accepts behavioural commitments of a central securities depository and closes its investigation into the alleged abuse of dominant position (SC Depozitarul Central SA)
University of Technology (Tallinn)
On 11 December 2012 the Romanian Competition Authority (CC) concluded its investigation into the alleged abuse of dominant position on the market for the services rendered by the central securities depository by accepting a series of behavioral committments related to the pricing of the (...)

The Cypriot Competition Commission imposes fine of over € 2 M on telecom authority for abusing its dominant position in the retail market for broadband access (CYTA)
European Chemicals Agency
On 10 December 2012, the Cypriot Commission for the Protection of Competition (“the CPC”) imposed fines totaling over € 2 million on the Cypriot Telecommunications Authority (“the CYTA”) for abusing its dominant position in the retail market for broadband access. The CPC found that CYTA had (...)

The Belgian Competition Council imposes on national postal incumbent a fine of more than € 37 M for applying a rebate scheme that infringed EU and national competition laws (Bpost)
European Commission
Belgium: Fine for Abuse of Dominance in Postal Sector* On 10 December 2012, the Competition Council (the Council) imposed on bpost (formerly called La Poste – De Post), the Belgian postal incumbent, a fine of € 37 399 786 for a rebate scheme called “model per sender” which was applied from (...)

The EU Court of Justice upholds the abuse of patents system and the procedures for marketing pharmaceutical products in order to prevent or delay the arrival of competing generic medicinal products on the market for proton pump inhibitors (AstraZeneca)
Ashurst (Milan)
ECJ rejects appeal relating to abuse of the patent system and the procedures for marketing of drugs* On 6 December 2012, the European Court of Justice (“ECJ”) handed down its ruling rejecting AstraZeneca’s (“AZ”) appeal in relation to the Losec case. In the first instance, the General Court largely (...)

The Turkish Competition Board decides that a mechanical door lock manufacturer did not abuse its dominant position through various pricing practices (Kale Kilit)
Erdem & Erdem (Istanbul)
The Competition Board (“Board”) decided in its decision dated 06.12.2012 and numbered 12-62/1633-598 that Kale Kilit ve Kalıp Sanayi Anonim Şirketi (“Kale Kilit”) did not carry the characteristics of abuse with its predatory pricing practices and discount systems, and therefore decided not to impose (...)

The EU Court of Justice entirely dismisses pharmaceutical company’s appeal on abusive patent misuse (AstraZeneca)
Mircea & Partners (Bucharest)
I. Introduction On 6 December 2012, the CJEU issued its judgment in the long-running AstraZeneca litigation. The General Court’s judgment has been upheld in its entirety. The only victorious battle scored by the appellant refers to what type of conduct before the national regulatory authorities (...)

The ECJ dismisses pharmaceutical company’s appeal against Commission and EU General Court’s findings that it abused its dominant position by misusing patent systems and pharmaceutical marketing procedures in order to exclude generic competitors from the market and to restrict parallel imports (AstraZeneca)
Herbert Smith Freehills (Brussels)
,
Herbert Smith Freehills (London)
1. Introduction The Court of Justice of the EU (ECJ) has dismissed AstraZeneca’s appeal against the Commission’s and General Court’s findings that the company abused its dominant position under Article 102 TFEU by misusing the patent system and pharmaceutical marketing procedures in order to (...)

The China’s Bureau of Price Supervision and Anti-monopoly of NDRC initiates antitrust investigation case against telecom operators on the basis of Art 17, 18 & 19 AML (China Telecom and China Unicom)
Renmin University of China
I. Introduction 1. On November 9, 2011, “News 30min” of China Central Television(CCTV) disclosed Bureau of Price Supervision and Anti-monopoly of National Development and Reform Commission (NDRC) initiated an antitrust case against China Telecom and China Unicom, to investigate whether these two (...)

Mergers

The Turkish Competition Authority amends the merger notification test
GlaxoSmithKline (Istanbul)
The Communiqué No. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Turkish Competition Board (the "Communiqué"), which introduced a new merger control regime, has been in force for two years now. During this time, the new regime has been tested and the shortcomings have been (...)

The Portuguese Competition Authority imposes a fine on a non-notified merger following an ex officio investigation (ANF / Farminveste)
Pares Advogados
On 28 December 2012, the Portuguese Competition Authority (PCA) fined the National Pharmacy Association (Associação Nacional de Farmácias - ANF) and two of its subsidiaries, Farminveste – Gestão de Participações, S.G.P.S., Lda. (Farminveste) and Farminveste – Investimentos, Participações e Gestão, (...)

The Portuguese Competition Authority imposes record fine for gun-jumping (Farminveste)
Van Bael & Bellis (Brussels)
,
Van Bael & Bellis (Brussels)
At the end of December 2012, the Portuguese Competition Authority fined the Portuguese National Pharmacy Association and two subsidiaries of Portuguese company Farminveste € 150,000 for implementing their acquisition of pharmaceutical company ParaRede-Glintt without obtaining prior merger (...)

The French Council of State reduces € 30 M fine imposed on pay-TV operators for failure to comply with commitments in merger case (Vivendi / Canal Plus)
Van Bael & Bellis (Brussels)
On 21 December 2012, the French Council of State (the highest administrative court in France) reduced a fine imposed on pay-TV operators Vivendi and Canal Plus for breaching commitments entered into in the context of the conditional clearance of their acquisition of TV channels TPS and (...)

The Hungarian Competition Office rules on ancillary restraints and provides an overview of its related practice (Waberer/Szemerey)
lakatos, koves and partners
On 20 December 2012 the Hungarian Competition Office ("HCO") cleared a concentration between two Hungarian companies active in forwarding and logistics (Waberer’s Logisztika Kft. ("Waberer") as acquirer and Szemerey Transport Zrt. ("Szemerey") as target) and provided a useful summary of the (...)

The Spanish Competition Authority fines a payment processing company for infringing commitments offered to obtain merger clearance (REDSYS)
European Commission - DG COMP
On 17 December 2012 the Spanish Competition Authority ("CNC") imposed a fine of €819,000 on REDSYS S.L. ("REDSYS") as it considered that the payment processing company had infringed the commitments which it had voluntarily offered in Phase 2 of the procedure in order to obtain clearance for its (...)

The Dutch Competition Authority blocks a merger between two companies involved in the production and sale of gingerbread and rusk to retailers on the Dutch market (A.A. ter Beek / Continental Bakeries)
Bird & Bird
,
Stibbe (Amsterdam)
1. Introduction In its decision of 14 December 2012, the Dutch Competition Authority (hereafter "NMa") blocked the proposed acquisition of A.A. ter Beek B.V. by Continental Bakeries B.V. (hereafter: "the ruskmerger"). Both companies are involved in the production and sale of gingerbread and (...)

The Portuguese Competition Authority is due to announce its decision on a prospective merger in the telecommunications sector (Zon Multimédia/Optimus)
Luís Silva Morais & Associados
The Portuguese Competition Authority ("Autoridade da Concorrência", hereinafter ’ADC’) is due to decide on a prospective merger announced on 14 December 2012 by a joint communiqué issued by Sonaecom SGPS, SA ("Sonaecom") and by Kento Holding Limited and Jadeium BV ("Kento / Jadeium") as the main (...)

The England and Wales Court of Appeal holds that the concept “overlapping jurisdictions” is relevant merely to situations where Article 21 ECMR is contingently applicable (Ryanair)
University of Reading
Ryanair v. Competition Commission and Aer Lingus in the Court of Appeal (Civil Division) [2012] CAT 29* Majority and Minority Shareholders Commuting between Dublin, Brussels and London Keeping with this blog’s recent focus on aviation related cases, this post will look into a decision by the (...)

The English Court of Appeal rejects low cost airline’s appeal of UK Competition Commission probe (Ryanair / Aer Lingus)
Van Bael & Bellis (Brussels)
On 13 December 2012, the English Court of Appeal (CA) rejected Ryanair’s appeal against a Competition Appeal Tribunal (CAT) judgment allowing the Competition Commission (CC) to review Ryanair’s acquisition of a minority stake in rival airline company Aer Lingus. In August 2012, the CAT (...)

The England and Wales High Court rules that there was no contingent infringement of article 21 of the ECMR when the UK Competition Commission investigates an acquisition of a minority stake prior to a merger subject to the exclusive control of the European Commission (Ryanair / CC)
Blackstone Chambers
Anyone for another round? The Court of Appeal’s nuanced approach to the duty of “sincere cooperation”.* The duty of “sincere cooperation” set out in Article 4(3) TEU requires Member States to take appropriate measures to “ensure fulfilment of the obligations arising out of the Treaties or resulting (...)

The EU Commission adopts a decision declaring a merger compatible with the internal market and the functioning of the EEA (Hutchison 3G Austria / Orange Austria)
RBB Economics (Brussels)
H3G/Orange Austria – Commission starts using UPP* On 24 July, the Commission published the non-confidential version of the decision in the Hutchison 3G Austria/Orange Austria case. The case, cleared subject to commitments following a Phase II investigation, represents a significant development (...)

The EU General Court upholds fine imposed on energy corporation for failing to notify a transaction highlighting the importance of compliance with EU merger control filing requirements (Electrabel)
Herbert Smith Freehills (Brussels)
,
Herbert Smith Freehills (London)
1. Introduction On 12 December 2012 the EU General Court dismissed Electrabel’s appeal against the €20 million fine the European Commission had imposed on it for failing to notify a transaction - the acquisition of a minority shareholding - to the Commission under the EU Merger Regulation (...)

The German Competition Authority clears merger in the healthcare industry despite presumed market dominance and a presumed oligopoly, and applies a rather detailed economic analysis, in relation to the SIEC and the old dominance test (Fresenius Kabi / Fenwal)
Jones Day (Brussels)
The Bundeskartellamt cleared the merger between Fresenius Kabi and Fenwal following its Phase II investigation. The merger concerned the healthcare sector and, in particular, the market for blood transfusion technology and the manufacture of products used in blood collection, filtration and (...)

The German Bundeskartellamt clarifies the geographic allocation of turnover, particularly in relation to the application of the minor markets exemption (Lenzing AG / Kelheim Hygene)
Jones Day (Brussels)
In the Bundeskartellamt’s decision in Lenzing AG / Kelheim Hygene Fibres GmbH, in which it prohibited the creation of a monopoly in the viscose fibres market, the Bundeskartellamt clarified how it deals with the geographic allocation of turnover, especially in relation to the assessment of (...)

The German Competition Authority clears acquisition on the market for blood transfusion technology and manufacture of equipments used in blood collection, filtration and processing (Fresenius Kabi / Fenwal)
German Competition Authority (Bonn)
Bundeskartellamt clears acquisition of Fenwal by Fresenius* Bonn, 12 December 2012: The Bundeskartellamt has cleared the planned acquisition of Fenwal Holdings Inc by Fresenius Kabi AG. Both companies are active in blood transfusion technology and manufacture products used in blood collection, (...)

The Swedish Competition Authority approves a merger in the book publishing sector without requiring any remedies (Bokia / Akademibokhandelsgruppen)
Vinge (Stockholm)
The Swedish Competition Authority’s decision number 452/2012 of 10 December 2012 to approve KF Media, Natur & Kultur and Killbergs Bokhandel acquiring joint control over Akademibokhandeln and Bokia. The Competition Authority’s decision is final. KF Media, part of the KF Group, owned the KF (...)

The Japan Fair Trade Commission clears an acquisition of shares, subject to remedies, in the retail of electric appliances market (Yamada Denki / Best Denki)
Japan Fair Trade Commission (Tokyo)
The JFTC Closed its Review on the Proposed Acquisition of Shares of BEST DENKI Co., Ltd.by YAMADA DENKI Co., Ltd.* Upon a notification regardinga proposed acquisition of shares of BEST DENKI Co., Ltd. (BEST DENKI)by YAMADA DENKI Co., Ltd. (YAMADA DENKI), the Japan Fair Trade Commission (JFTC)had (...)

The Chinese MOFCOM clears conditionally an international JV in the IT sector (ARM / Giesecke & Devrient / Gemalto)
King & Wood Mallesons (Beijing)
MOFCOM cleared Joint Venture between ARM, Giesecke & Devrient and Gemalto with Conditions* On December 6th, 2012, the Ministry of Commerce (“MOFCOM“) cleared the proposed establishment of a joint venture (“JV“) by ARM Holdings plc (“ARM“), a UK semiconductor intellectual property (“IP“) (...)

The Chinese MOFCOM conditionally clears an off-shore joint venture involving European computer technology groups (ARM / Giesecke & Devrient / Gemalto)
First Principles Economics (FPE)
On the 6th December 2012 MOFCOM published its 6th and last merger decision of the year - a clearance, with conditions, of the Trustonic joint venture between ARM, Giesecke & Devrient (G&D), and Gemalto. Process The parties submitted their initial notification on 4th May 2012. MOFCOM (...)

The Italian Competition Authority by relying, inter alia, on upward pricing pressure techniques finds a food merger to have anticompetitive effects and conditionally clears it (Bolton Alimentari/Simmenthal)
Desogus Law Office (Cagliari)
By the decision made on 5 December 2012 the Italian Competition Authority (ICA) closed a phase II merger investigation into the proposed acquisition of Bolton Alimentari (Bolton) of the Simmenthal business branch from Kraft. The ICA reached the conclusion that the merger would have a negative (...)

The U.S. DOJ and the New York Attorney General challenge NYC tour bus joint venture
Jones Day (Houston)
,
Milbank, Tweed, Hadley & McCloy (New York)
The U.S. Department of Justice and the New York State Attorney General have filed an antitrust lawsuit to dissolve a joint venture between two New York City tour bus companies that effectively merged their operations and eliminated competition between them. This enforcement action demonstrates (...)

State Aid

The EU Court of Justice upholds that the construction of a new runway being inherently related with an economic activity falls outside the scope of exercise of state authority (Leipzig Halle)
European Court of Justice (Luxembourg)
The Leipzig-Halle judgment of the CJEU: is the financing of a transport infrastructure an economic activity subject to State aid rules?* Leipzig-HalleThe financing and construction of transport infrastructure has often been considered in the past to fall outside the ambit of State aid rules, (...)

The EU Commission finds that Germany has demonstrated that the proposed tax reduction for passengers constitutes compatible state aid (German Flights Tax Reduction)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Taxes and Tax Reductions on Air Travel: Selectivity and Compatibility* This posting examines an Irish and a German measure concerning reduction in passenger taxes. As to be expected, an important issue for both measures was whether the reduction was (...)

The EU Commission finds that the noise reduction measure is compatible with the internal market under Article 93 TFEU (German Freight Wagons)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The Puzzle of Environmental Aid: Why Do Firms Make Environmental Investments?* Introduction Environmental aid is the second largest horizontal category of State aid, after regional aid. It accounts for about 24% of all aid to industry and services. (...)

The EU Commission decides that the application of the VPS method for the valuation of agriculture and forestry land does not confer an advantage on the purchaser (BVVG)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog An “Alternative” Method of Valuation for State-Aid-Free Sale of Public Land* The obligation of the state to act as a private vendor When a public authority sells an asset to an undertaking, it must sell it at the market price. The case law is clear (...)

The European Commission finds that the Italian real estate tax exemption granted to non-commercial entities carrying out social, welfare, health and religious services does no constitute state aid in the meaning of Article 107(1) TFEU
College of Europe (Bruges)
Article published on Lexxion State Aid Blog. Part II: Non-commercial activities and absolute impossibility to recover incompatible aid* Commission Decision 2013/284 on municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented (...)

Procedures

The UK Government announces proposals for reform of the private competition damages regime in the UK
White & Case (London)
,
White & Case (London)
As widely expected, earlier this week the Government announced proposals for reform of the private competition damages regime in the UK, proposing to increase the Competition Appeal Tribunal’s (CAT) power and introduce an opt-out “collective action” scheme before the CAT . The proposed changes (...)

The Belgian Parliament adopts two bills to reform competition act
Van Bael & Bellis (Brussels)
On 27 December 2012, the Belgian federal government introduced two draft bills aimed at reforming Belgian competition law. These bills are expected to be adopted in February 2013 but will not enter into force before 1 April 2013 at the earliest. While the draft legislation does not (...)

The US District Court for the District of Kansas denies denying the defendant’s motions to exclude the testimony of the class plaintiffs’ liability expert (Urethane Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this recent decision, the court applied the well-known Daubert standards governing expert testimony admissibility in denying the defendant’s motions to exclude the testimony of the class plaintiffs’ liability expert. (The Court also denied the defendant’s motion to exclude the opinion of the (...)

The Dutch Trade and Industry Appeal Tribunal holds that former employees have the right to remain silent in antitrust investigations carried out by the Dutch NCA
Van Bael & Bellis (Brussels)
On 21 December 2012, the Dutch Trade and Industry Appeal Tribunal (College van Beroep voor het bedrijfsleven) held that former employees of companies subject to an antitrust investigation have the right to remain silent when being questioned by the national competition authority. In (...)

The UK Supreme Court grants permission to appeal against a decision concerning the time limits for bringing follow-on claims before the CAT (Morgan Crucible)
Hausfeld (London)
CAT limitation rules: the saga continues* On 21st December 2012, the Supreme Court granted permission to Morgan Crucible to appeal against the judgment of the Court of Appeal, delivered in July, concerning the time limits for bringing follow-on claims in the Competition Appeal Tribunal (CAT). (...)

The EFTA Court annuls the ESA decision that denied the access to documents required by applicants in its quality of prospective claimant for damages (DB Schenker)
Mircea & Partners (Bucharest)
I. Introduction The applicants in the present case, collectively named ‘DB Schenker‘ have argued successfully for the annulment of the decision from 16 August 2011 adopted by EFTA Surveillance Authority (hereinafter ‘ESA’). Schenker Privpak AS and Schenker Privpak AB are limited liability (...)

The Bulgarian Commission on Protection of Competition adopts guidelines on corporate competition compliance programmes and guidelines on advocacy
European Commission
Bulgaria: The Commission on Protection of Competition adopts Guidelines on Corporate Competition Compliance Programmes and Guidelines on Advocacy* On 20 December 2012, the Commission on Protection of Competition (CPC) adopted Guidelines on the Corporate Competition Compliance Programmes and (...)

The England and Wales High Court refuses to strike out the conspiracy claim relying upon a cartel infringement on the market for copper plumbing tubes (WH Newson / IMI)
Blackstone Chambers
Conspiracy in the CAT: the scope of section 47A* What kinds of “follow-on” claims may be brought in the CAT? ‘[A]ny claim for damages, or any other claim for a sum of money which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil (...)

The German Federal Constitutional Court confirms constitutionality of provision on interest charged on antitrust fines (Industrial insurers)
European Commission
Germany: The Federal Constitutional Court confirms Constitutionality of Provision on Interest charged on Antitrust Fines* In a ruling of 19 December 2012, the Federal Constitutional Court has decided that the statutory imposition of interest on antitrust fines is in accordance with the Basic (...)

The German Federal Constitutional Court rules that the statutory imposition of interest on cartel fines is in compliance with the German constitution (VerzinsungspflichtfürKartellgeldbußen)
Commeo
According to Sec. 81 (6) of the German Act against Restraints of Competition ("ARC") interests are payable on fines imposed on legal persons and associations of persons in an administrative order of the German Federal Cartel Office ("FCO").In its decision of May 2011 the Higher Regional Court (...)

The US District of Kansas clarifies the appropriate summary judgment standard for horizontal price-fixing of commodity products (Urethane Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this opinion, the court clarified the appropriate summary judgment standard to apply to the plaintiffs’ claims of horizontal price-fixing for commodity products, and then ruled on whether the plaintiffs had proffered sufficient evidence to get to trial under that standard. First, the court (...)

The Irish High Court issues its first order on a commitment agreement between the NCA and an undertaking (FitFlop)
Queen’s University Belfast
,
National University of Irland (NUI)
The Irish Competition (Amendment) Act 2012 introduced court-endorsed commitment agreements to Irish competition law. The new section 14B of the principal Competition Act 2002 provides for making commitment agreements between the Irish Competition Authority (or indeed Com Reg when it is the (...)

The Bucharest Court of Appeal confirms the restrictive interpretation of the legal professional privilege in the Romanian competition law
Mircea & Partners (Bucharest)
Romania is among the last countries in the European Union to have introduced the concept of the Legal Professional Privilege (“LLP”) in its national legislation. This took place in 2010 when the Romanian Competition Law (RCL) has been amended to a great extent and the relevant provision has been (...)

The Indian Ministry of Corporate Affairs proposes a significant change in respect of the search and seizure powers granted to the investigating office of Competition Commission
TT&A
The Ministry of Corporate Affairs, Government of India which is the authority responsible for the functioning of the Competition Commission of India (CCI) has proposed a bill in the Lower House of Parliament of India on 10 December 2012 to amend the Competition Act, 2002 (Act). This proposal (...)

The Spanish National Court annuls the CNC decision to incorporate evidence gathered at the inspection to the case file of a new investigation powers of investigation (Montesa Honda)
Cuatrecasas, Goncalves Pereira (Madrid)
,
Cuatrecasas, Goncalves Pereira (Barcelone)
,
Cuatrecasas, Goncalves Pereira (Barcelone)
On December 4, 2012, the Spanish National Court (Audiencia Nacional) annulled the decision of the Spanish competition authority (formerly called Comisión Nacional de la Competencia or “CNC”, now called Comisión Nacional de los Mercados y de la Competencia or “CNMC”) to incorporate evidence gathered (...)

The German Competition Authority presents final report on sector inquiry into German waste disposal “dual systems” concept
Van Bael & Bellis (Brussels)
On 3 December 2012, the German Federal Cartel Office (“FCO”) published its final report on a sector inquiry into the German waste disposal sector, namely the “dual systems” concept. The “dual systems” concept is an industry financed waste collection system for household packaging that works in (...)

The Hungarian Competition Authority launches a campaign to enhance competition law compliance and promote a competition culture
European Commission
Hungary: The Competition Authority provides Guidance on Competition Compliance Programmes* Most undertakings in Hungary are not aware of how to comply with competition rules: this emerged from extensive research carried out by the Gazdasági Versenyhivatal (GVH – Hungarian Competition (...)

The Austrian Parliament passes amendments to competition law
Bpv Hügel (Vienna)
Austria: New competition rules – Take two* The Austrian Parliament has passed a bill amending the Austrian competition law rules. On March 1, 2013, significant changes will enter into force. These include the following: This is the follow-up to the post “Austria: New competition rules – Take (...)

The Polish Competition Authority launches another edition of campaign ‘entrepreneur, don’t collude’
European Commission
The Polish Office launches another Edition of Campaign ‘Entrepreneur, don’t collude’* In November 2012, the Office of Competition and Consumer Protection (UOKiK) launched another edition of the advocacy campaign entitled: “Entrepreneur, don’t collude!”. This time the advocacy efforts of UOKiK are (...)

Regulatory

The French Competition Authority publishes an opinion on the inclusion of so-called ’historical’ additional costs in the equalisation system between press distribution services
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence has published an opinion on the inclusion of so-called ’historical’ additional costs in the equalisation system between press distribution services. The Autorité is not in favour of (...)

The French Competition Authority issues an opinion on the single-issue press distribution sector assessing the various systems for untwining the supply chain
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Upon request from the government, the Autorité de la concurrence assesses the compatibility with competition regulations of the various systems envisaged by players in the sector to untwine press transport (...)

The ECN Authorities’ heads endorse a joint resolution on the reform of the common agricultural policy
European Commission
ECN: Heads of ECN Authorities endorse Resolution* The on-going reform of the Common Agricultural Policy addresses a number of important issues for the future evolution of the agricultural sector, including the application of competition rules. • In this context, the European Competition (...)

Public sector

The Italian Supreme Administrative Court addresses the differences between the notions of service concession and public procurement of services (Università degli Studi di Roma Tre v International Airport System)
University of Turin
I. Introduction The judgment of the Italian Consiglio di Stato addresses once more the differences between the notions of service concession and public procurement of services. These main differences, as set up by several ECJ’s sentences, consist in the different allocation of economic risk (...)

The Tirana Court of Appeals confirms NCA decision that fined companies involved in bid rigging in a public procurement case (Classic/Noti)
University of Tirana
On December 2012 the Tirana Court of Appeals, handed a decision on confirming a decision of the Albanian Competition Authority (ACA), on a bid rigging in the public procurement of new cars by various institutions in Albania. This decision imposed a fine on 4 distributors of new cars and (...)

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