February 2008

Anticompetitive practices

The UK OFT announces financial incentives for information regarding cartel activity
Linklaters (London)
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Linklaters (London)
The OFT published details today of ground-breaking plans to offer rewards of up to £100,000 for the provision of information on cartel activity. The OFT is one of the first anti-trust regulators to introduce such reward payments, and the move marks a further escalation of the OFT’s (...)

A US District Court revives concern that some "club deals" could violate the antitrust laws (Bain Capital Partners)
Milbank, Tweed, Hadley & McCloy (New York)
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White & Case (New York)
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White & Case (New York)
Companies that have participated in or plan to participate in joint bidding practices in the context of corporate acquisitions (otherwise known as “club deals”) may risk some unwanted antitrust scrutiny from shareholders and others. A recent decision by the United States District Court for the (...)

The Lithuanian NCA inflicts its highest fine ever on a professional association running confidential information exchange scheme on the raw milk procurement and dairy products markets (Dairies III)
Lithuanian Competition Council
On 28 February 2008 the Lithuanian Competition Council fined seven dairy companies for their involvement in the exchange of confidential information said to have restricted competition on the raw milk procurement market and on a number of markets for individual dairy products. The total amount (...)

The Italian Competition Authority closes the investigation for abuse of dominance in the Italian postal sector following commitments (Poste Italiane)
DiaSorin
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Freshfields Bruckhaus Deringer
On 27 February 2008, the Italian Antitrust Authority (IAA) conclusively accepted the commitments proposed by Poste Italiane (PI), the former monopolist of postal services in Italy) in relation to the investigation opened in August 2007 for the alleged breach of article 82 of the EC Treaty. The (...)

The French Competition Council accepts commitments aiming at providing access to a computer program in the press distribution sector (NMPP)
Moskvina Law, PLLC
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Darrois Villey Maillot Brochier
Background On 8 August 2003, Messageries Lyonnaises de Presse (MLP) filed a complaint with the French Competition Council (Council) regarding anticompetitive conduct of NMPP and SAEM-TP. The present decision addresses only NMPP’s alleged attempt to evict MLP from the market by refusing to grant (...)

The Japanese FTC issues cease and desist orders against foreign companies in cartel and bid-rigging cases (Marine hose)
Tokyo University of Science
Case Summary According to the Japan FTC’s cease and desist order, the Japan FTC investigated Japanese and foreign companies manufacturing and selling marine hose; they found that the manufacturers and sellers of marine hose had jointly determined the prospective recipient of the orders, (...)

The Japan Fair Trade Commission issues cease and desist orders and imposes surcharges on marine hose manufacturers for market sharing and price-fixing cartel and makes a cease and desist order against them (Bridgestone Corporation)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Order and Surcharge Payment Order against Marine Hose Manufacturers* The Japan Fair Trade Commission (hereinafter “JFTC”) had investigated entrepreneurs manufacturing and selling Marine Hose in accordance with the provisions of the Act on Prohibition of Private Monopolization (...)

The German FCO imposes fines of € 37 M on cartel of manufacturers of drugstore articles (Henkel, Schwarzkopf, Sara Lee, Unilever)
Van Bael & Bellis (Brussels)
According to a press release of 20 February 2008, the German Federal Cartel office (“FCO”) has imposed fines totalling € 37 million on a number of manufacturers of drugstore articles, namely Henkel Wasch- und Reinigungsmittel GmbH, Schwarzkopf & Henkel GmbH, Sara Lee Deutschland GmbH and (...)

The Austrian Federal Competition Authority opens the market for broadcasting rights of skiing events (ORF- ÖSV, ’Broadcasting rights of skiing events’)
DORDA
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KIEHL Kanzlei für Wirtschaftsrecht
Background In three famous decisions the European Commission decided that the central marketing of the media rights of the Football Premier League may give rise to horizontal and vertical competition concerns.. Particularly, the Commission stressed that media rights should be awarded according (...)

A UK Court grants a plaintif judicial review against the NCA’s “sensational publicity” and “public relations” policy regarding the disclosure of investigations’ results (Lactalis Mclelland - "Dairy price fixers’ case")
WTG Events
I The facts Eights companies admitted having taken part in a collusion concerning the price of dairy products in the United Kingdom, according to the Office of Fair Trading (OFT). This alleged cartel is known to concern the markets of milk, butter and cheese and has formerly be formalised by (...)

The Vilnius District Administrative Court upholds the Lithuanian NCA’s infringement decision on professional minimum fees (Chamber of Auditors)
Lithuanian Competition Council
On 14 February 2008 the Vilnius District Administrative Court (the “VDAC” or the “Court”) rejected an appeal brought by the Lithuanian Chamber of Auditors (the “LCA”) against the Competition Council’s infringement decision condemning the appellant’s attempts to set minimum fees for its members. The (...)

A US district court dismisses antitrust challenge to joint bid by private equity funds (Pennsylvania Avenue Funds/Borey)
Linklaters (New York)
Last week, a US federal district court became the first to conclude that an agreement by private equity funds to submit a joint takeover bid does not violate Section 1 of the Sherman Antitrust Act. If followed by other US courts, the decision may have important implications for private equity (...)

The US Federal Trade Commission again moves forward against "reverse payment settlements" in pharmaceutical patent settlements (Cephalon)
Allen & Overy (New York)
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RPCK Rastegar Panchal
On February 13th, 2008 the Federal Trade Commission (“FTC”) filed a complaint in the U.S. District Court for the District of Columbia charging Cephalon, Inc. with illegally preventing competition to its branded drug Provigil. In its complaint the FTC alleges that Cephalon, through patent (...)

The Lisbon Commercial Court annulled twice Portuguese Competition Authority’s decisions convicting eleven flour milling companies for alleged cartel (Cerealis, Cerealis Moagens, Moagem Ceres, Granel)
Abreu Advogados (Lisbon)
In January 2004, following the news on the near-30% rise in bread price, the Competition Authority decided to open an investigation. After several searches, the Authority concluded that between December 2000 and September 2004 flour price increases were uniform as to the amount, date of (...)

A Portuguese Court annuls the NCA’s decision to convict 10 milling companies on the basis of the violation of the right to due process (Cerealis / Milling cartel)
PLMJ (Lisboa)
I. The facts and the administrative proceedings On September 2005, the Portuguese Competition Authority (the “PCA”) issued a decision finding 10 milling companies (representing 75% of the market) guilty of fixing the price of wheat flour between December 2000 and August 2004, and imposed a total (...)

The Czech Competition Authority publishes guidelines on alternative resolution of certain competition issues
Havel, Holasek & Partners (Prague)
I. Introduction In 2004, the first amendment to the Czech Competition Act was adopted which introduced into the national competition law a new mechanism designed for alternative resolution of certain competition disputes. By virtue of this amendment, the Office for the Protection of (...)

The English High Court considers whether a no-challenge provision in a patent settlement agreement might be unenforceable on the basis that it was in breach of Art. 81 EC (Knorr-Bremse Systems/Haldex Brake)
European Commission - DG COMP
In the context of a ruling on jurisdiction, which determined that a UK company is not bound by the terms of a German settlement agreement relating to a patent dispute, the English High Court considers, without deciding the issue, whether a no-challenge provision in a patent settlement agreement (...)

The Turkish Competition Board confirms fine on only one cartel member for price fixing in the ready mixed concrete market (Lafarge)
University of Leeds
The Turkish Competition Board (TCB) has confirmed the fine it had levied on a single member of a cartel in the ready mixed concrete market in the Marmara region in a recent decision. The original decision which seems to have caused controversy within the TCB - the dissenting opinions of the (...)

The Italian Council of State confirms the jet fuel cartel decision and clarifies that Italian Competition Authority has no power to impose structural remedies in antitrust cases (Eni, Esso, Kuwait, Shell, Tamoil and Total)
Van Bael & Bellis (Brussels)
The Italian Council of State has recently ruled on appeals brought against the Italian Competition Authority’s decision in the jet fuel cartel case. In June 2006, the Italian Competition Authority (“ICA”) fined six major oil companies – Eni, Esso, Kuwait, Shell, Tamoil and Total– for their (...)

The German FCO imposes fines of € 62 M on manufacturers of decor paper (Munksjö Paper, Felix Schoeller, Arjo Wiggens)
Van Bael & Bellis (Brussels)
The German Federal Cartel Office (“FCO”) has recently fined three manufacturers of decor paper a total of € 62 million for infringing German competition law by engaging in the fixing of prices between August 2005 and early November 2007 and by agreeing on capacity closures in the second half of (...)

Unilateral Practices

The European Commission welcomes submission of structural remedies to address two on-going investigations (E.ON)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 28 February 2008, the Commission adopted a press release welcoming proposals submitted by E.ON under Article 9 of Regulation 1/2003 to address two on-going investigations relating to competition in the German electricity market. As announced in the Commission’s press release, E.ON has (...)

The Italian Competition Authority closes investigations for abusive conducts committed by the incumbent post operator with a commitments decision (Servizi postali)
Desogus Law Office (Cagliari)
The Italian Competition Authority (ICA), by a commitments decision upon the basis of Article 14-ter of the Act 287/1990, has closed proceedings against Poste Italiane (PI) for abuse of dominant position. PI, the incumbent postal operator, has been alleged to impose on rivals burdensome (...)

The European Commission imposes penalty payment of € 899 M for alleged non-compliance with a 2004 decision (Microsoft)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 27 February 2008, the Commission announced that it had imposed a penalty payment of € 899 million on Microsoft for its alleged failure to comply with obligations contained in the Commission’s March 2004 decision. In particular, the Commission stated that Microsoft had charged unreasonable (...)

The UK energy regulator fines a network operator for abuse in gas metering market (National Grid)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 25 February 2008, the UK energy regulator Ofgem fined National Grid £ 41.6 million (approximately € 51.4 million) for abusing its dominant position in the UK market for domestic gas metering in violation of Article 82 EC and the Chapter II prohibition of the UK Competition Act. Under the Act, (...)

The European Commission sends a statement of objections to a leading aluminium company (Reel, Alcan)
Van Bael & Bellis (Brussels)
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Practising Law Institute
The European Commission announced that it sent a Statement of Objections to Alcan on 21st February 2008. The SO alleges that Alcan may have infringed Article 82 EC by tying its dominant aluminium smelting technology with handling equipment sold by Alcan’s subsidiary ECL. In particular, the SO (...)

The UK Gas and Electricity Markets Authority finds that the network operator has abused its dominant position in the market for the provision and maintenance of domestic-sized gas meters (National Grid)
Summary The Gas and Electricity Markets Authority (‘the Authority’) finds that, National Grid (‘NG’) has abused its dominant position in the market for the provision and maintenance of domestic-sized gas meters. Background NG rents gas meters to domestic gas suppliers that are required to (...)

The Czech NCA clears a 25 % price increase by the dominant fuel card issuer based on a new quantitative rebate system (CCS)
Government of the Czech Republic
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European Court of Justice (Luxembourg)
On 18 February 2008, the Czech Office for the Protection of Competition announced via a press release that it terminated its investigation of the increase of fees collected by CCS, the principal issuer of fuel cards in the Czech Republic, from the merchants which operate its point-of-sale (...)

The German Competition Authority rules against market division and information exchange in the sand-lime brick sector (KS-Quadro)
European School of Management and Technology (ESMT)
Summary On 14 February 2008 the Bundeskartellamt upheld an earlier decision ruling against market division and information exchange of German sand-lime brick producers. In its earlier decision, July 2003, the Bundeskartellamt prohibited a license system according to which licensees were (...)

The Spanish Competition Authority fines electric company for abusing pricing in the electricity technical restrictions market (Iberdrola)
Uría Menéndez
On 14 February 2008, the Spanish competition authority (National Competition Commission, “CNC”) imposed a fine of €15.4 million on the Spanish electric company Iberdrola for abuse of a dominant position in the electricity technical restrictions market. The product market concerned was the market (...)

The Hungarian Competition Office accepts objective justification defence in an abuse of dominance case in the electricity sector (DÉMÁSZ / DHE)
Morley Allen & Overy Iroda (Budapest)
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Dentons (Budapest)
Hungarian national competition authority Gazdasági Versenyhivatal (GVH) initiated proceedings against Dél-magyarországi Áramszolgltató Zrt. (DÉMÁSZ) and its fully-owned subsidiary, Démász Hálózati Elosztó Kft. (DHE). The investigation concerned a suspected abuse of a dominant position whereby DÉMÁSZ and (...)

The Spanish Competition Authority fines explosives’ supplier for excessive pricing (Canarias de Explosivos)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 12 February 2008, the Spanish Competition Authority fined a supplier of explosives for excessive pricing in the Canary Islands in breach of the Spanish equivalent to Article 82 EC. The Spanish Competition Authority concluded that Canarias de Explosivos S.A. held a dominant position on the (...)

The French Competition Council refuses to impose interim measures to facilitate the roll out of fiber to the home networks in France (Free / France Telecom)
Magenta (Paris)
On July 2nd, 2007, Free filed a complaint against France Telecom before the French Competition Council in order to have access to the incumbent’s ducts to roll out its optical local loops for residential customers. This complaint took place in a context where the main French residential (...)

The French Competition Authority rejects a claim for interim measures regarding access to the incumbent’s civil engineering infrastructure for rolling-out fiber (Free / France Télécom)
Compass Lexecon (Paris)
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RBB Economics (Paris)
Presentation Context of the claim 1. On 12 February 2008, the French Competition Council (hereafter the “Council”) has rejected Free’s claim for interim measures regarding the conditions of access to civil engineering facilities of France Télécom (hereafter “FT”), in the context of the development (...)

The Cyprus Supreme Court annuls on procedural grounds the Competition Authority’s decision having fined € 3.8 M the telecommunications incumbent for abusive roaming prices in the mobile telecommunications market (Areeba / CYTA)
Antoniou Advocates
In Case n° 634/2006, Areeba Ltd v. Commission for the Protection of Competition, the Supreme Court of Cyprus, in exercising its exclusive jurisdiction to review any decision, act or omission of any person, organ or authority exercising executive or administrative authority, annulled a Decision (...)

The Paris Court of Appeal confirms interim measures imposed by French NCA in an abuse of dominance case in the generic pharmaceutical sector (Arrow / Schering-Plough)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 5 February 2008, the Paris Court of Appeal rejected Schering-Plough’s appeal against the French Competition Council’s interim decision of 11 December 2007. In that decision, the Competition Council had ordered Schering-Plough to publish a text in two medical magazines confirming the (...)

Mergers

The Russian Competition Authority clears a merger in the electric sector subject to remedies, including divestiture of a power plan (Volzhskaya TGK/KES-Holding)
Clifford Chance (Moscow)
The operation The investment holding company OOO "KES-Holding" (¡°Acquirer¡±) applied for clearance of its proposed acquisition of the entire voting capital of the electricity and heat power supplier OAO "Volzhskaya TGK" (¡°Target¡±). The market The transaction related to the supply of electric (...)

The German Federal Cartel Office prohibits the acquisition of a minority shareholding of 13.75% and orders the divestiture after merger completion (A-TEC Industries - Norddeutsche Affinerie)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
On 27 February 2008 the German Federal Cartel Office (FCO) prohibited the acquisition by A-TEC Industries AG (A-TEC), a Vienna-based international industrial group, of 13.75 % of the shares in Norddeutsche Affinerie AG (NA), a publicly listed German manufacturer and recycler of copper. Since (...)

The Italian Competition Authority to consider remedies in a new banking merger (MPS/Antonveneta)
Freshfields Bruckhaus Deringer (Rome)
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ASP (c/o Johnson & Johnson Medical NV - Belgium)
The Italian Antitrust Authority (the IAA) has recently opened a second-phase investigation in relation to the transaction through which Monte dei Paschi di Siena (MPS) will acquire Banca Antonveneta (Antonveneta). Antonveneta is the bank which in 2005/2006 was the subject of the hard-fought (...)

A German Court of appeals reinforces the application of the de minimis exemption for merger control by constraining the application of the “bundle theory" (Asphaltmischwerke Langenthal)
Fried Frank Harris Shriver & Jacobson (London)
1. Introduction German merger control notification thresholds are extremely low and a large number of transactions are notified to the German Federal Cartel Office (Bundeskartellamt"FCO") every year. For example, 2231 notifications were submitted to the FCO in 2007 . However, a notification is (...)

The Spanish NCAs cleared in phase II a merger in the elevator sector subject to granting customers contracts termination rights and disclosing future contract information of the target (Orona/Ascensores Gasteiz)
PwC (Madrid)
The operation The operation involved the acquisition of Ascensores Gasteiz by the Orona group, by purchasing 100% of the equity of Ascensores Gasteiz. The Orona group comprised thirteen companies with activities in the production, sales, installation, maintenance and repairing of elevators in (...)

The Spanish Competition Commission clears in Phase II a merger subject to behavioural remedies in the elevators sector (Orona Sociedad Cooperativa/Ascensores Gastéiz)
Cleary Gottlieb Steen & Hamilton (Brussels)
On 9 August 2007, Orona Sociedad Cooperativa (“Orona”) notified to the Servicio de Defensa de la Competencia, the acquisition of sole control of Ascensores Gastéiz S.L. The transaction was notified before the entry into force of the new Competition Act 15/2007 (the “Competition Act”) and therefore (...)

The European Commission conditionally clears an acquisition in the wholesale distribution of electrical products and installation material (Rexel/Hagemeyer)
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European Commission - DG COMP
"Mergers: main developments between 1 January and 30 April 2008"* On 22 February the Commission adopted a conditional clearance decision in relation to Rexel‘s proposed acquisition of the Dutch company Hagemeyer‘s subsidiaries in several EEA countries and in Russia. Hagemeyer and Rexel are (...)

The Norwegian Competition Authority authorizes a merger in petrol retailing, subject to divestments in two areas (Norske Shell/YX Energi)
Ernst & Young
The operation On 27 August 2007, AS Norske Shell acquired the exclusive right to retail petrol from the 92 petrol stations in Norway owned by YX Energi Norge (“YX”). YX will continue to own the stations, from which it will also continue to sell groceries and consumer convenience products. (...)

The Swedish Government proposes new rules on merger control
Roschier (Stockholm)
On 21 February 2008, the Swedish Government (the “Government”) submitted a proposal for a new Competition Act (the “Proposal”) to the Council on Legislation for consideration. The Proposal contains a number of amendments, inter alia, to the Swedish merger control rules. The amendments are proposed (...)

The European Commission conditionally clears a merger in the financial information sector (Thompson/Reuters)
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European Commission - DG COMP
"Mergers: main developments between 1 January and 30 April 2008"* On 19 February the Commission approved the proposed acquisition of the UK-based Reuters Group by Thomson Corporation of Canada, subject to conditions and obligations. The Commission’s in-depth investigation, opened in October (...)

The European Commission conditionally clears a merger between two global providers of financial information (Thompson, Reuters)
European Commission - DG COMP
"The Thomson/Reuters merger investigation: a search for the relevant markets in the world of financial data"* I. Introduction On 19 February 2008, after an in-depth investigation, the Commission cleared the Thomson/Reuters merger transaction subject to commitments. The case concerns the (...)

The Turkish Competition Board grants negative clearance to a merger in the chocolate sector and clears related ancillary restrictions (Godiva - Yýldýz Holding)
Mey
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Derman Düren Akol
Yýldýz Holding A._. (“Yýldýz Holding”) applied on 18 January 2008 to the Turkish Competition Board (the “Board”) for the approval of the latter regarding the transfer of 100% of the shares in (i) Godiva Chocolatier Inc., (ii) Godiva Brands Inc. , (iii) Godiva Chocolatier of Canada Ltd. , (iv) Godiva (...)

The UK OFT suspends its duty to refer to the Competition Commission a merger between the two world leaders in the provision of offshore drilling services to the oil and gas industry, while it considers undertakings from the parties (Transocean/GlobalSantaFe)
Bond Dickinson
On 8 February 2008, the British Office of Fair Trading (“OFT”) gave notice that it had received undertakings from the two recently merged world leaders in the provision of offshore contract drilling services in response to its decision to refer the merger to the Competition Commission (“CC”). (...)

The Turkish Competition Authority cleared an acquisition in the food products market subject to brands divestiture and appointed a trustee (MGS-Gýdasa)
Esin
The operation At the time of the notification, Gýdasa was a company which was under the sole control of Sabancý. The products that were being marketed by Gýdasa included, without limitation, beverages, various tea products, packaged water, juices and various meat products. Sabancý Group is one of (...)

The Turkish Competition Authority cleared an acquisition in the private hospitals market subject to limitation of the non-compete obligation (Ozel Maya-Sevgi Saðlýk-Ten Medikal-Gürler Medikal / Þafak)
Esin
The operation Safak SPV will hold 60% of the shares of Safak Holding. Safak SPV is indirectly controlled by The Julius Baer Group, Amber Master Fund SPC and Deutsche Investitions-und Entwicklungsgesellschaft mbH (“DEG”) through Þafak Investors LP. Safak Investors LP is established for the (...)

The Spanish Competition Authorities assess an outsourcing project constituting a concentration in the retail distribution sector (Fuertes/Carrefour)
Herbert Smith Freehills (Madrid)
Carrefour, the largest supermarket and hypermarket retailer in Spain, has executed an agreement with Fuertes Group to outsource processing, handling, cutting and packaging services for meat, butcher products and cheese. Fuertes Group is a family holding company present in the food sector. (...)

The French Minister of Economy approves a concentration in the meat sector without remedy (Bigard/Arcadie Centre Est)
Darrois Villey Maillot Brochier
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Moskvina Law, PLLC
The Bigard Group is active in slaughtering, carving, and transformation of cattle, pigs, sheep and fowl. Arcadie Centre Est is active in slaughtering (1st transformation), and carving and boning of meat (2nd transformation). In 2006, Bigard acquired sole control of a number of Arcadie Centre (...)

The UK Office of Fair Trading cleared an acquisition in the market for regional newspapers, subject to the divestment of two newspaper titles (Dunfermline/Trinity Mirror)
Université de Genève
The operation On 4 February 2008, the UK Office of Fair Trading (OFT) cleared the acquisition by Dunfermline Press Limited (DPL) of the Berkshire regional newspapers business of Trinity Mirror plc (Trinity Mirror), subject to the divestiture of two titles. The acquisition had taken place on (...)

The UK OFT accepts undertakings in newspaper merger, clarifying that its de minimis guidance is not a "get out of jail free" card for small mergers (Dunfermline press / Berkshire regional newspapers)
Herbert Smith Freehills (Brussels)
On 4 February 2008, the Office of Fair Trading ("OFT") announced that it had suspended its duty to refer Dunfermline Press Limited‘s ("DPL ") acquisition of the Berkshire Regional Newspapers ("BRN") portfolio of 8 local newspaper titles from Trinity Mirror plc to the Competition Commission (...)

State Aid

The European Commission publishes a second draft of the revised notice on State aid in the form of guarantees
Van Bael & Bellis (Brussels)
The Commission has published for consultation a second draft of a revised Commission Notice on the application of Article 87 and 88 of the EC Treaty to State aid in the form of guarantees. The draft updates the existing Commission Notice issued in 2000 and provides more detailed guidance on the (...)

The European Commission considers that the privatisation of an automobile company controlled by the Romanian State constitutes a State aid incompatible with EC State aid rules (Automobile Craiova)
DG REGIO Regional and urban policy
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European Commission - DG COMP
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European Commission - DG COMP
"State aid issues in the privatisation of public undertakings - Some recent decisions"* I. Introduction The general definition of State aid is set out in Article 87(1) of the EC Treaty, which prohibits ‘…any aid granted by a Member State or through State resources in any form whatsoever which (...)

The European Commission rules that the existing aid granted by Ireland to public service broadcasters is no longer compatible with the EC State aid rules (RTE, TG4)
European Commission - DG COMP
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European Commission - DG COMP
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European Commission - DG COMP
"Funding of public service broadcasting and State aid rules - two recent cases in Belgium and Ireland"* I. Introduction The present article illustrates the Commission’s State aid assessment practice concerning funding for public service broadcasters on the basis of two recent cases which were (...)

The European Commission conditionally approves State aid granted by Belgium to a public service broadcaster (Flemish public broadcaster VRT)
European Commission - DG COMP
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European Commission - DG COMP
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European Commission - DG COMP
"Funding of public service broadcasting and State aid rules - two recent cases in Belgium and Ireland"* I. Introduction The present article illustrates the Commission’s State aid assessment practice concerning funding for public service broadcasters on the basis of two recent cases which were (...)

The European Court of Justice rules that Greece had failed to comply with a Commission State aid decision issued in 2005 by not taking necessary measures to recover illegal aid granted to airline company (Olympic Airways Services and Olympic Airlines)
Van Bael & Bellis (Brussels)
On 14 February 2008, the European Court of Justice (the ECJ) ruled that Greece had failed to comply with a Commission State aid decision issued in 2005 by not taking necessary measures to recover illegal aid granted to Olympic Airways Services and Olympic Airlines. The public financial (...)

The Spanish Supreme Court annuls the Canary Islands aid scheme for the creation of a public service of maritime cabotage for being discriminative (Garajonay Expres)
Hogan Lovells (Madrid)
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Allianz (Brussels)
Brief description of the facts and legal issues: Appeal before the Supreme Court by the Government of the Canary Islands and an individual (the “Appellants”) against a judgement of the Superior Court of Justice of the Canary Islands (the “Court”) declaring the scheme of aids for the creation of a (...)

The European Court of Justice rules that a Member State is not required to recover aid that has initially been found unlawful as a result of a failure to notify the aid package to the Commission when this aid has subsequently been declared compatible with the common market (CELF)
Van Bael & Bellis (Brussels)
On 12 February 2008, the European Court of Justice (the ECJ) ruled that a Member State is not required to recover aid that has initially been found unlawful as a result of a failure to notify the aid package to the Commission when this aid has subsequently been declared compatible with the (...)

An Italian lower Court refers to the Constitutional Court a preliminary ruling on the conformity with constitutional law of EC Reg. 695/1999 which sets up a different statute of limitation for the recovery of contributions constituting unlawful aid with respect to internal rules
EUJUS Law Firm (Rome)
Factual background The applicant was a company which had benefited from pension contribution breaks with respect to work and formation contracts (i.e. CFL, contratti di formazione e lavoro) between 1995 and 2001. The European Commission, through Decision No. 128/2000 of 11 May 1999, (...)

The Romanian Competition Council approves a regional State aid scheme to support investments made by small and medium-size companies
European Security Transport Association (ESTA)
The Romanian Competition Council has approved, on 1st February 2008, a regional state-aid scheme designed to promote the investments made by small and medium-sized economic actors in certain economic-development related activities. The scheme, which should come into force immediately, will be (...)

Procedures

The Luxembourg Minister of Economy intends to tackle unjustified price increases in the retail sector through the application of EC competition rules
Arendt & Medernach (Luxembourg)
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ID4green
1. On 29 February 2008 the Luxembourg Minister of Economic Affairs and the Minister of SMEs have made public a state of the play of the “Action Plan against Excessive Inflation” (Plan d’action contre une inflation excessive) of the Luxembourg government, in which competition law seems to play a (...)

The Luxembourg Competition Council adopts the first periodic penalty payments following interim measures (Entreprise des Postes et Télécommunications)
MOYSE BLESER law firm
I Background On 22 January 2008, the President of the Competition Council (the “Council”) handed down, for the first time since the law of 17 May 2004 on competition ("Law on competition") came into force, a decision imposing a limited number of interim measures on the public entity Entreprise (...)

The Spanish new regime for immunity/leniency (Regulation N° 261/2008)
Callol, Coca & Asociados (Madrid)
This note provides a summary of the immunity/leniency regime rules in Spain. These rules are contained in the regulation (Implementing Regulation) implementing Law 15/2007, of 3 July 2007, on Competition (Competition Act), which entered into force in Spain in September 2007. The Implementing (...)

The Polish Supreme Court sheds light on the notion of the Court of last instance under the Polish law in the light of Art. 234.3 EC (Polish telecommunications regulator)
European University Institute (Florence)
In September 2005 the President of the URTiP (the predecessor of the UKE, the Polish telecommunications regulator) issued a resolution, wherein it declared the market for access and call origination in the public mobile networks not to be efficiently competitive. One of the operators active on (...)

The Swedish Supreme Court declares itself lacking jurisdiction as a result of an arbitration clause (BornholmsTrafikken/Ystad Hamn)
Vinge (Stockholm)
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Svea hovrätt (Swedish courts)
Background The Danish state runs a ferry service (“BornholmsTrafikken”) which operates between Bornholm in Denmark and Ystad in Sweden. The Port of Ystad (the “Port”), which is owned by the municipality, provides various services to BornholmsTrafikken. BornholmsTrafikken commenced proceedings (...)

An Austrian Court declares behavioural commitments concerning broadcasting rights of the skiing world cup binding upon the public TV/radio provider and the Austrian skiing association (ÖRF / ÖSV)
European Court of Justice (Luxembourg)
At the request of the Austrian Federal Competition Authority (Bundeswettbewerbs-ehörde ; “BWB”), the Vienna High Court in competition matters (Oberlandesgericht Wien als Kartellgericht), by (unpublished) order of 18 January 2008, in Case 26 Kt 42/06, adopted on the basis of Sec 27(1) of the (...)

The UK Competition Commission consults on proposed remedies concerning its investigation of the groceries market
Van Bael & Bellis (Brussels)
On 15 February 2008, the Competition Commission opened a consultation on its proposals to remedy the competition concerns identified in its investigation of the UK groceries market, which was concluded last year. In particular, the Competition Commission is recommending a reform of planning (...)

The Austrian Supreme Court imposes a fine for not complying with its obligation to give information to the Competition Authority
Van Bael & Bellis (Brussels)
In a decision of 13 February 2008, the Austrian Supreme Court imposed a fine of € 120,000 on an undertaking in the foodstuffs sector for not complying with its obligation to give information to the Austrian Competition Authority. In the course of the investigation by the Authority, the (...)

The Supreme Court of Cyprus dismisses the decision of the Cyprus Commission for the Protection of Competition for lack of competence (Areeba)
Neocleous (Nicosia)
Areeba Ltd (the applicants), by a Recourse lodged before the Cyprus Supreme Court, requested the Court to annul the decision of the Respondents notified on 18.1.2006, by which their complaint against the Cyprus Telecommunication Authority (CYTA) for price squeezing of mobile telephones was (...)

The UK High Court of Justice rules on enforceability of patent non-challenge clause (Knorr-Bremse Systems - KBS)
Pinsent Masons (London)
Background The Claimant is an English company which is part of the World’s largest brake systems manufacturing group (the KBS Group). It is a wholly owned subsidiary of a German company (KBS GmbH). The Defendant is a German company and is part of a group of companies which, along with the KBS (...)

The French Competition Council launches public consultation on draft procedural notice relating to commitments
Van Bael & Bellis (Brussels)
One year after the public consultation that led to the revision of its leniency programme, on 1 February 2008 the French Competition Council launched a public consultation on commitment proceedings. Under French law, such proceedings are provided for under Articles L. 464-2 and R.464-2 of the (...)

The Danish Supreme Court denies damages to company subject to a dawn raid (Telia Telecom)
Danish Competition and Consumer Authority (Copenhagen)
On February 1st, 2008, the Danish Supreme Court upheld a judgment by the Appeal Court for Eastern Denmark denying damages to the Danish telecommunications operator Telia Telecom A/S (“Telia Telecom”). Telia Telecom claimed to have suffered damages as a result of a dawn raid carried out by the (...)

The Dutch Competition Authority publishes guidelines on the handling of digital files during an investigation
Van Bael & Bellis (Brussels)
,
Practising Law Institute
The Dutch Competition Authority (“NMa”) published guidelines on the handling of digital files during an investigation (the “Guidelines”). The Guidelines replace the former guidelines which had been in force since 2003. Under the new Guidelines, the NMa is allowed to copy digital information stored (...)

The Swiss Competition Commission publishes its 2007 annual report
ABELS Avocats
I. Salient aspects of Swiss competition law in 2007 A. Dominant positions During the year 2007, the ComCo rendered two important decisions whereby market participants liable for anti-competitive practices were fined on the basis of Article 49a al. 1 of the Swiss Competition Act (“SCA”), a (...)

The OECD publishes a paper on the private enforcement of competition law
Van Bael & Bellis (Brussels)
OECD: The OECD has recently published a paper on the private enforcement of competition cases. It follows several roundtable discussions held between October 2004 and June 2006 on issues such as the gathering of evidence, standing, the passing-on defence, the assessment of damages and class (...)

Regulatory

The US Federal Energy Regulatory Commission supplements existing cross-subsidization restrictions and sets pricing standards for certain affiliate transactions
George Washington University - School of Law
On February 21, 2008, FERC issued a Final Rule through Order No. 707 in which it supplements existing affiliate transaction rules and codifies restrictions on and pricing of affiliate transactions between franchised public utilities that have captive customers or own or provide transmission (...)

The UK OFGEM imposed a financial penalty of £ 41.6 million for abuse of dominant position in the market for the provision of domestic-sized gas meters (National Grid)
RBB Economics (Brussels)
Introduction On 21 February 2008 the Office of Gas and Electricity Markets in the UK (OFGEM) published its decision which found that National Grid (NG) abused its dominant position in the market for the provision of domestic-sized gas meters in Great Britain. OFGEM imposed a financial penalty (...)

The UK Court of Appeal upholds a € 12.74 M fine imposed by the Postal Service Commission to the incumbent for breaches of its licence (Royal Mail)
Université Aix-Marseille
1. The context Royal Mail is the provider of a universal postal service in the United Kingdom. It operates by virtue of a licence granted on 23 March 2001 and amended on 1 April 2003. Condition 8(4) of its licence requires Royal Mail to use all reasonable endeavours at all times to apply the (...)

The Paris Court of appeals rules that Google makes an illegal use of trademarks through its keywords advertising program (GIFAM / Google)
Google (Paris)
Google has been sued in France by several household appliance manufacturers and their professional union, and fined for using said manufacturers’ trademarks in its keywords advertising tool. Among thirty decisions issued by French courts against the search engine over its AdWords service, this (...)

Public sector

The French Supreme Court makes an another step towards criminalization of anticompetitive practices (Paris high-schools public markets)
WTG Events
Few decisions are grounded on Article L. 420-6 of the French Commercial Code (hereinafter “FCC”). The latter organizes the sanctions applicable to the infraction constituted by the malevolent, personal and determining participation to a forbidden anticompetitive practice such as an agreement (...)

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