December 2016

Anticompetitive practices

The Finnish Supreme Administrative Court upholds the decision by Finnish Market Court, Finnish Competition Authority, and fines a milk producer for predatory pricing in the national fresh milk markets (Valio)
European Commission
The Supreme Administrative Court considered Valio’s milk pricing a violation of the Competition Act* The Supreme Administrative Court considered Valio’s milk pricing a violation of the Competition Act and ordered a penalty payment of EUR 70 million. In 2012, the FCCA deemed Valio guilty of (...)

The Bulgarian Supreme Administrative Court confirms a fine of over 8 million euros for several hard-core vertical restrictions (Hyundai)
Dimitrov, Petrov & Co (Sofia)
Bulgaria: First-instance court confirms a fine of over € 8 mln on the distributor of Hyundai in Bulgaria for several hard-core vertical restrictions* At the very end of 2016, the Bulgarian Supreme Administrative Court in its first-instance 3-member panel, confirmed one of the highest fines ever (...)

The Bulgarian Supreme Administrative Court inflicts a record fine for prohibited vertical agreements within a selective distribution system of cars (Hyundai)
Tsvetkova Bebov Komarevski (Sofia)
After almost a 4-year appeal procedure, in December 2016 the Supreme Administrative Court of the Republic of Bulgaria (the “Supreme Court”), acting as a court of first instance, confirmed one of the biggest fines ever imposed by the Bulgarian Commission for Protection of Competition (the “CPC”) (...)

The Polish Competition Authority fines ski equipment wholesaler for vertical pricing restraints (Fordex)
WKB Wierciński Kwieciński Baehr (Warsaw)
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Freshfields Bruckhaus Deringer (Brussels)
In its decision in Case DOK-1/2016 of 23 December 2016, the President of the Office of Competition and Consumer Protection (the “OCCP”) imposed a fine of PLN 72,345 (approx. EUR 16,500) on a ski equipment wholesaler Przedsiębiorstwo Produkcyjno-Handlowe Fordex sp. z o.o. (“Fordex”), for fixing the (...)

The EU Court of Justice Advocate General Wahl considers that derivative liability of parent company may not exceed that of its subsidiary (Heat stabilisers cartel)
Van Bael & Bellis (Brussels)
Under settled EU case law, a parent company may be held liable for the anticompetitive behaviour of its subsidiary even if the former has not directly participated in the infringement, provided the parent company is in a position to exercise decisive influence over its subsidiary and, in fact, (...)

The EFTA Surveillance Authority closes investigation into alleged abuse of dominant position by ferry operator and municipality (Color Line / Sandefjord Municipality)
European Commission
ESA closes Color Line and Sandefjord investigation* On 20 December 2016, the EFTA Surveillance Authority (“ESA”) closed an investigation of the ferry company Color Line and the municipality of Sandefjord in Norway. The parties have ended practices alleged to be in breach of the EEA competition (...)

The Polish Competition Authority fines gas boilers and water heaters producer for vertical price fixing (Termet)
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
In its decision of 19 December 2016, the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, hereinafter referred to as the “OCCP President” or the “PCA”) fined Termet S.A. the amount of PLN 212,919.00 (approximately EUR 49,000.00) for imposing fixed resale prices (Resale (...)

The Turkish High State Court annuls the Competition Board’s decision concerning parallel export restrictions in a vertical agreement (Roche / Corena)
ELIG Gürkaynak (Istanbul)
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ELIG Gürkaynak (Istanbul)
This case summary includes an analysis of the annulment decision of 13th Chamber of the High State Court (2010/4617 E., 2016/4241 K) (“High State Court”). The High State Court cancelled the Turkish Competition Board’s (the “Board”) decision on parallel export restrictions in vertical agreements. In (...)

The Spanish Competition Authority declares exempt retail price maintenance practices by a cosmetics laboratory on the basis of the de minimis theory (Laboratorio Martí Tor)
CMS Albiñana y Suárez de Lezo (Madrid)
The Spanish Competition Authority (“SCA”) has considered in a decision dated 15 December 2016 that certain retail price maintenance (“RPM”) practices carried out by cosmetic laboratory Martí Tor was not capable of significantly affecting competition, and thereby, of infringing Article 1 of the (...)

The Indian Competition Appellate Tribunal (COMPAT) upholds the Indian Competition Authority’s decision against 4 public insurance companies but reduces fines to avoid overburdening the taxpayers (National Insurance / New India Insurance / Oriental Insurance / United India Insurance)
Vaish Associates, Advocates (New Delhi)
COMPAT upholds CCI order against four Insurance Companies, but reduces penalty* COMPAT vide order dated December 09, 2016 has upheld CCI order dated July 10, 2015 passed under section 27 of the Act against Public Sector Insurance Companies for bid-rigging while reducing the penalty from Rs. (...)

The Indian Competition Appellate Tribunal (COMPAT) upholds the Indian Competition Authority’s decision against car manufacturers in the spare car parts markets (Ford India / Nissan Motor India / Toyota Kirloskar Motor)
Vaish Associates, Advocates (New Delhi)
Competition Appellate Tribunal (COMPAT) rejects appeals of Ford, Nissan and Toyota against CCI Order in Car Spare Parts case but reduces penalty amounts* In an important and path breaking order the Competition Appellate Tribunal (COMPAT) vide order dated December 9, 2016 has upheld the earlier (...)

The Indian Competition Appellate Tribunal (COMPAT) reverses the Indian Competition Authority’s fine of a chemists’ association for cartelization due to mistakes in the investigation (AIOCD All India Organization of Chemists & Druggists / OPPI Organization of Pharmaceuticals Producer of India)
Vaish Associates, Advocates (New Delhi)
COMPAT sets aside penalty imposed by CCI on All India Organization of Chemists and Druggists for cartelization* Competition Appellate Tribunal (COMPAT) by its order dated December 9, 2016 has set aside the orders dated 19.2.2013, 09.12.2013 passed by the Competition Commission of India (CCI) (...)

The Indian Competition Appellate Tribunal (COMPAT) reverses the fine against professional association and its compliant pharmaceutical member company for anticompetitive agreements (Maruti & Company / KCDA Karnataka Chemists & Druggists Association / Lupin)
Vaish Associates, Advocates (New Delhi)
COMPAT set asides penalty imposed on Lupin and its office bearers* COMPAT vide order dated December 07, 2016 while setting aside the order dated July 28, 2016 of CCI has quashed the penalty of Rs 73 Crores imposed on Lupin Ltd. (“Lupin”) and its two officials for alleged anticompetitive (...)

The UK CMA obtains a novel disqualification of an individual from holding company directorships and finds easier route to individual liability for cartel conduct (Mr Aston)
Peters & Peters (London)
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Peters & Peters (London)
An easier route to individual liability for cartel conduct?* On 1 December 2016, the UK Competition and Markets Authority (“CMA”) obtained a novel “disqualification undertaking” from Daniel Aston, the managing director of online poster supplier Trod Limited, whereby Mr Aston agreed not to act as a (...)

Unilateral Practices

The Bulgarian Commission for Protection of Competition imposes its second sanction for abuse of superior bargaining power (Kaufland)
Dimitrov, Petrov & Co (Sofia)
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Dimitrov, Petrov & Co (Sofia)
Bulgarian Commission for Protection of Competition imposed a second sanction for abuse of superior bargaining power* After the Bulgarian Commission for Protection of Competition (CPC) imposed a sanction on Siemens EOOD for abuse of superior bargaining position in May 2016, at the end of the (...)

The Czech Competition Authority accepts commitments in a case on alleged abuse of dominance by an energy company applying a pricing formula included in a long-term supply agreement (ČEZ)
Diwok Hermann Petsche (Baker McKenzie Vienna)
The Czech Competition Authority ("CCA") accepted in a decision of 20 December 2016 commitments offered by ČEZ, a partly state-owned Czech energy company, due to an alleged abuse of dominant position on the market for purchasing of brown coal. While the CCA refrained from final findings regarding (...)

The Appeal Court of Ljubljana annuls a decision in relation to minor offence proceedings against a collecting society (SAZAS: Slovenian organization for collective management of copyrights for authors)
Fatur Law Firm (Ljubljana)
Introduction In SAZAS case, the Slovenian Competition Protection Office (hereinafter referred to as the CPO) adopted a partial administrative decision in April 2011 (Case 306-35/2009-108), finding that Združenje skladateljev, avtorjev in založnikov za zaščito avtorskih pravic Slovenije (...)

The Indian Competition Appellate Tribunal (COMPAT) upholds the Indian Competition Authority’s decision for abuse of dominance against a coal company but cancels the fine due to the company already recently paying fine in a similar case (Sai Wardha Power / Coal India)
Vaish Associates, Advocates (New Delhi)
COMPAT upholds the order passed by CCI against Coal India Limited for abuse of dominance* COMPAT by its order dated December 09, 2016 has upheld the order of CCI whereby it held that Coal India Limited and Western Coalfields Limited were acting independently of the market forces and enjoy (...)

The UK Competition and Markets Authority publishes full decision on excessive pricing and focuses on intention and evidence (Pfizer / Flynn)
Simmons & Simmons (London)
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Simmons & Simmons (London)
The CMA’s decision relies heavily on evidence of the parties’ intentions in applying competition rules. On 15 June 2017, the UK Competition and Markets Authority (CMA) published the full non-confidential version of its decision to fine Pfizer and Flynn a record £84.2m for their excessive and (...)

The Indian Competition Appellate Tribunal (COMPAT) requests investigation into abuse of dominance by global taxi services company (Meru Travels Solutions / Uber India Systems)
Vaish Associates, Advocates (New Delhi)
COMPAT directs investigation against Uber India for Abuse of Dominance* COMPAT by its order dated December 7, 2016, has set aside the order dated February 10, 2016 of CCI closing the information filed against Uber India Systems Private Limited (“Uber”) for alleged abuse of dominant position and (...)

The Turkish Competition Board publishes a reasoned decision on pharmaceutical industry (Pharmacists’ Association)
ELIG Gürkaynak (Istanbul)
Introduction The Competition Board recently published a reasoned decision (December 6 2016; 16-42/699-313) following its investigation into whether the Pharmacists’ Association (TEB) and the Pharmacists’ Association Commercial Enterprise (TEBII) had violated Article 6 of Law 4054 on the (...)

The Indian Competition Authority dismisses market sharing allegations against 4 companies in the market for Digital Projection Systems in cinema halls (Eskay Video / Real Image Media Technologies Mumbai)
Vaish Associates, Advocates (New Delhi)
CCI closes case against Real Image Media Technologies, Shree Venkatesh Films, UFO movies and Arti Cinemas Pvt. Ltd. for alleged anti-competitive practices and abuse of dominance* CCI by its order dated December 06, 2016 has closed the case against Real Image Media Technologies Mumbai, (OP-1) (...)

Mergers

The Spanish Competition Authority clears a merger subject to remedies in the healthcare sector (Quironsalud / Fresenius Helios)
Callol, Coca & Asociados (Madrid)
The acquisition (Transaction) of Quironsalud by Fresenius Helios had been initially notified to the European Commission, who referred the Transaction to the SCA under Article 9 of the EU Merger Regulation. On 22 December 2016, the SCA issued its phase I decision authorizing the Transaction (...)

The Supreme Administrative Court of Czech Republic confirms fine for not complying with structural commitments imposed in merger approval decision (Rewe / Plus Discount)
Weil, Gotshal & Manges (Prague)
On 21 December 2016, the Supreme Administrative court rejected cassation appeal of REWE Zentralfinanz eG (“REWE”) against the previous judgment of the Regional Court in Brno which rejected claim against the Czech Office for Protection of Competition (“Office”) alleging that the Office acted (...)

The Danish Maritime and Commercial Court requests the EU Court of Justice to provide guidance on gun-jumping test (Ernst & Young / KPMG)
Gorrissen Federspiel (Copenhagen)
CJEU requested to provide guidance on gun-jumping test* With Post Danmark I and II under their belts, it seems Danish courts are punching above their weight when it comes to contributing to the CJEU’s development of EU competition law through preliminary rulings. Yet another interesting (...)

The EU Commission clears acquisition of leading global professional social networking platform company by leading global software company, subject to 5-year remedies that include monitoring and prevention of tying (Microsoft / LinkedIn)
DG COMP (Brussels)
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European Commission
Microsoft/LinkedIn: Big data and conglomerate effects in tech markets* In a nutshell: The Microsoft/LinkedIn case is an important development in the Commission’s assessment of mergers involving data-related issues in tech industries. It provides further guidance on the framework for the (...)

State Aid

The EU Commission publishes its largest-ever negative State aid decision regarding tax arrangements, requiring Ireland to recover €13bn of aid (Apple)
Oxera (Oxford)
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Oxera (Brussels)
I. Introduction 1. On 30 August 2016, the European Commission announced its largest-ever negative State aid decision requiring Ireland to recover €13bn of aid (plus interest) from Apple as a result of its tax rulings with Ireland . In the year leading up to this announcement, the Commission (...)

Procedures

The Swedish government passes a new Competition damages act in order to implement the Directive on antitrust damages actions
Delphi (Stockholm)
The new Swedish Competition Damages Act* The Swedish implementation of the Directive on Antitrust Damages Actions (the “Directive”) is in force as of 27 December 2016 with the entering into force of the Swedish Competition Damages Act (Sw. Konkurrensskadelag (2016:964)) (the “Act”). The (...)

The UK Parliament implements the EU antitrust damages directive
Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
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Cleary Gottlieb Steen & Hamilton (London)
The Damages Directive seeks to promote private enforcement of EU competition law before national courts across the European Union (the “EU”). The UK Regulations implementing the Directive were laid before Parliament on 20 December 2016 but will not come into force until after they have (...)

The Polish administration adopts a new legal framework on counteracting the unfair use of contractual advantage
Office of Competition and Consumer Protection (Warsaw)
I. Introductory Remarks The act on counteracting the unfair use of contractual advantage in the trade in agricultural and food products of December 15, 2016, Journal of Laws of 2017, item 67 (hereinafter: the “Act”) will enter into force on 12 July 2017. It is the result of EU-wide discussions (...)

The English High Court rules that notes of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by legal advice privilege or lawyers’ working papers privilege (RBS Rights Issue Litigation)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (London)
In December 2016, the English High Court ruled that transcripts, notes and other records of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by either legal advice privilege (“LAP”) or lawyers’ working papers privilege. The (...)

Regulatory

The Polish Competition Authority gains new powers to fight unfair practices in the food industry
WKB Wiercinski Kwiecinski Baehr (Poznan)
The Polish Competition Authority gains new powers to fight unfair practices in the food industry* The Act on Combating Unfair Use of Contractual Advantage in Trading in Agricultural and Food Products (the “Act”) will enter into force in the mid-2017. The objective of the Act is to eliminate (...)

The Hungarian Competition Authority announces that new amendments to the Hungarian Competition Act enter into force
European Commission
New regulations of the Hungarian Competition Act entered into force* The recent amendments of Act LVII of 1996 on the Prohibition of Unfair Trading Practices and Unfair Competition (Tpvt., Hungarian Competition Act) entered into force in December 2016 and in January 2017, and serve a number of (...)

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