February 2010

Anticompetitive practices

A US District Court finds that the plaintiffs have failed to nudge their antitrust claims against building products distributor and grants order to dismiss the action (Bailey Lumber / BlueLinx)
Sheppard Mullin (Los Angeles)
Cross-Market Claims Flunk Twombly* In two companion opinions, Magistrate Judge Louis Guirola, Jr. of the Southern District of Mississippi granted motions to dismiss and greatly limited the scope of the claims asserted against several defendants in "opt out" actions following from the In re OSB (...)

The Polish Appeal Court in Warsaw upholds the decision of the Competition and Consumers Protection Court introducing economic analysis to the review of an exclusivity clause in distribution agreements (Lesaffre)
Greenberg Traurig Grzesiak (Warsaw)
Background - the OCCP decision On 29 December 2006, the President of the Office for Competition and Consumer Protection (”OCCP”) issued an administrative decision finding that the Polish subsidiary of Lesaffre (French food ingredients yeast and biotechnology company and worldwide leader in the (...)

The US DoJ issues business review letter regarding a proposed Internet media subscription news aggregation service (Global News Service)
Stanford University - Stanford Law School
U.S. Department of Justice does not challenge online subscription news service* On 24 February 2010 the Department of Justice issued a business review letter regarding a proposed Internet media subscription news aggregation service (Global News Service) that would be operated by MyWire, Inc. (...)

The Danish City Court of Århus inflicts an unsubstantial fine for price fixing (Veterinary surgeons)
Danish Competition and Consumer Authority (Copenhagen)
On 24 February 2010, the Danish City Court of Århus imposed fines on seven veterinary surgeons - each in the amount of DKK 75,000 (EUR 10,000) - for fixing prices for visits outside normal opening hours contrary to Section 6 of the Danish Competition Act (equivalent to Article 101 EU). (...)

The Superior Court of the State of California (County of Alameda) challenges minimum resale price maintenance as per se illegal (DermaQuest)
Jones Day (Los Angeles)
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Jones Day (Sillicon Valley)
In the 2007 Leegin Creative Leather v. PSKS case, the Supreme Court held that, under the federal antitrust laws, minimum vertical resale price fixing agreements are no longer per se illegal, but governed by the rule of reason, like maximum resale price fixing. Antitrust observers were quick to (...)

A US District Court dismisses antitrust claims on reverse payment on the pharma market (Androgel Antitrust Litigation)
Sheppard Mullin (Los Angeles)
FTC Gets Shut Down – Once Again – In Its Bid To Change How Courts View Reverse Payment Settlements* As previously reported on this blog, in January 2009, the Federal Trade Commission launched its latest challenge to the legality of reverse payment settlements in the pharmaceutical industry, this (...)

A US District Court grants defendants’ motions to dismiss antitrust claims brought by the FTC as regards reverse payments settlements and related commercial arrangements (Androgel)
Stanford University - Stanford Law School
U.S. District Court dismisses AndroGel reverse payment antitrust claims* On 22 February 2010 the U.S. District Court for the Northern District of Georgia (Atlanta Division) granted defendants’ motions to dismiss antitrust claims brought by the Federal Trade Commission (“FTC”) among others that (...)

A US District Court dismisses the FTC’s "pay-for-delay" antitrust lawsuit ruling that the contested settlements are not an unreasonable restraint of trade (Androgel Litigation)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On February 22, 2010, Judge Thomas W. Thrash, Jr. dismissed the Federal Trade Commission’s (FTC) antitrust lawsuit alleging that Solvay Pharmaceuticals (Solvay) conspired with generic drug makers Watson Pharmaceuticals (Watson) and Par Pharmaceuticals (Par) to delay generic competition for the (...)

The U.S. DOJ seeks new disgorgement remedy in civil antitrust case (KeySpan)
Jones Day (Houston)
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Jones Day (Washington)
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Alston & Bird (Washington)
Until last week, the U.S. Department of Justice had not sought to obtain disgorgement as a remedy in a civil Sherman Act case. In the antitrust lawsuit and settlement filed on February 22 in U.S. v. KeySpan, the Antitrust Division asks that the court approve a settlement requiring the defendant (...)

The US DoJ closes investigation into the proposed Internet search and search advertising agreement (Microsoft - Yahoo!)
Stanford University - Stanford Law School
U.S. Department of Justice closes investigation into Microsoft-Yahoo! agreement* On 18 February 2010 the U.S. Department of Justice announced the closing of its investigation into the proposed Internet search and search advertising agreement between Microsoft Corporation and Yahoo! Inc. (see (...)

The Austrian Competition Authority files an application for the imposition of fines against a cartel in the freight forwarding sector (Speditions-Sammelladungs-Konferenz)
European Commission
Austria: The Federal Competition Authority (BWB)’s Investigation of the Freight Forwarding Sector: another Cartel uncovered On 18 February 2010, the Federal Competition Authority (BWB) filed an application to the Cartel Court for the imposition of fines against all members of the association (...)

The French Supreme Court quashes the ruling of the Paris Court of Appeal relating to the exclusive distribution agreements of iPhones (Orange-Apple)
Simmons & Simmons (Paris)
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Hewlett Packard (Boulogne-Billancourt)
In a ruling dated 16 February 2010, the French Supreme Court (the "Supreme Court") quashed the ruling of the Paris Court of Appeal (the "Court of appeal") relating to the exclusive arrangements between Orange France (a subsidiary of France Telecom) and Apple for the distribution of iPhones in (...)

The Australian Federal Court issues an order by consent against American-based company for cartel behaviour in the international military defence training systems industry (DRS C3 Systems )
Australian Competition and Consumer Commission
$1 Million penalty for defence cartel* The Federal Court has made orders by consent against American-based company, DRS C3 Systems for cartel behaviour in the international military defence training systems industry. As part of the resolution of the proceedings brought by the Australian (...)

The Canadian Competition Bureau challenges real estate brokerage rules (Canadian Real Estate Association)
Canadian International Joint Commission
Introduction Canada’s Competition Bureau, an independent law enforcement agency that assists the Commissioner of Competition (the “Commissioner”) in protecting and promoting competition, announced on 8 February 2010 that a notice of application would be filed on behalf of the Commissioner with (...)

The portuguese competition authority sanctions supplier’s prohibition of retailers applying discounts to recommended retail sales prices (Royal Canin Portugal)
Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
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Morais Leitão, Galvão Teles, Soares da Silva & Associados (Porto)
I. Background The Portuguese Competition Authority (PCA) decision in case PRC 2008/09, was triggered by an anonymous retailer antitrust complaint (imperceptibly signed and without sender) lodged against Royal Canin Portugal, S.A. (Royal Canin). The complaint argued that supplier Royal Canin (...)

The US DoJ remains concerned over coordination and exclusivity issues in proposed amended settlement among publishers and authors (Google Books)
Stanford University - Stanford Law School
U.S. Department of Justice remains concerned over antitrust issues raised by “Google Books” settlement* On 4 February 2010 the U.S. Department of Justice filed a statement of interest regarding the proposed amended settlement agreement in The Authors Guild Inc. et al. v. Google Inc. with the (...)

The European Commission investigates the remedies proposed by airlines in the context of envisaged cooperation relating to transatlantic flights (British Airways, American Airlines, Iberia)
Van Bael & Bellis (Brussels)
The European Commission has recently confirmed that it is investigating the sufficiency of remedies proposed by British Airways, American Airlines and Iberia in the context of its review of the compatibility of the airlines’ envisaged cooperation relating to transatlantic flights with Article (...)

Unilateral Practices

The Latvian Competition Council discontinues investigation on the alleged predatory pricing engaged by a grey cement producer on an aftermarket (Cemex)
Competition Council of Latvia
The Competition Council Discontinues Investigation on the Alleged Infringement By Cemex Ltd. in the Transport-Concrete Market* On 26 February 2010 the Competition Council adopted decision to discontinue the investigation on the alleged abuse of a dominant position by a producer of grey cement, (...)

The Swedish Market Court upholds the Competition Authority’s interim order imposing an obligation on an electrical company to provide a potential customer access to its electricity mains (Ekfors)
Vinge (Stockholm)
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Vinge (Stockholm)
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Vinge (Stockholm)
Background On February 26, 2010, the Market Court delivered one of its judgments in the long running conflict between the municipality of Haparanda (Haparanda) and the energy company Ekfors Kraft AB (Ekfors). The dispute between the parties mainly concern allegations of abuse of a dominant (...)

An Italian Court of Appeal annuls its precedent injunctive relief against the soccer association for illegitimate award procedures of TV rights for live broadcasts of soccer matches (Conto TV/Lega Calcio)
Italian Competition Authority
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University Luiss Guido Carli - GRIF (Rome)
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University Luiss Guido Carli - GRIF (Rome)
Introduction CONTO TV S.r.l. (CONTO TV) is a small broadcasting company operating satellite TV in Italy. LEGA CALCIO is the Italian Soccer Association, entrusted by the Italian law with the task of selling soccer matches audio-television rights of its associates, Serie A and B clubs. On July (...)

The Swiss Federal Administrative Court revokes CHF 333 M fine against leading telecommunications provider’s subsidiary (Swisscom Mobile)
Agon Partners (Zurich)
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Swatch
I. Summary The Swiss Federal Administrative Court overruled a judgment rendered by the Swiss Competition Commission imposing a fine of CHF 333 M on Swisscom Mobile for abusing its dominant position by improperly enforcing inflated prices for mobile termination. II. Case 1. Parties Swisscom (...)

The UK Competition Authority issues a statement of objections for alleged abuse of a dominant position in the pharmaceutical sector (Reckitt Benckiser)
European Commission
United Kingdom: The Office of Fair Trading (OFT) Issues Statement of Objections for Alleged Abuse of a Dominant Position in the Pharmaceutical Sector On 23 February 2010, the OFT issued a Statement of Objections alleging that Reckitt Benckiser abused its dominant position in the market for the (...)

The UK Court of Appeal upholds abuse of dominance finding against incumbent gas provider but reduces the size of the fine imposed (National Grid/Gas and Electricity Markets Authority, Capital Meters, Siemens, Meter Fit)
Shoosmiths (Thames Valley)
On 23 February 2010, the Court of Appeal held that the UK Competition Appeal Tribunal ("CAT") had correctly upheld a decision of the UK energy regulator, OFGEM, that National Grid had abused its dominant position in the market for the provision of domestic-sized gas meters. The CAT had reduced (...)

The Bulgarian Competition Authority defines the refusal to supply on the market for provision of technical water as abuse of dominant position (Chimik / Irrigation Systems)
University of Technology (Tallinn)
On 18 February 2010 the Bulgarian Competition Authority (CPC) that single supplier of technical water in the city of Asenovgrad, Irrigation Systems has abused its dominant position by terminating the supply of technical water to one of its clients, Chimik. The facts of the case were as follows. (...)

The Polish President of the Office for Competition and Consumer Protection accepts commitments submitted by satellite pay-TV platform regarding the use of exclusive sports media rights (Cyfrowy Polsat)
Polish Competition Authority (Warsaw)
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Office of Competition and Consumer Protection (OCCP)
Decision On 12 February 2010, the President of the Office for Competition and Consumer Protection (OCCP) issued a decision which rendered plausible that Cyfrowy Polsat (pay-TV operator) had abused its dominant position by selling rights for public broadcasting of Euro 2008 subject to acquire (...)

The Basque Competition Authority fines a telecommunications operator for discrimination (Telefónica)
Van Bael & Bellis (Brussels)
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Practising Law Institute
In a decision dated 11 February 2010, the Basque Competition Authority imposed a fine of approximately € 3.4 million on Telefónica for discriminatory practices in breach of the Spanish provision equivalent to Article 102 TFEU. The Basque Competition Authority considered that Telefónica held a (...)

The Swedish Market Court upholds the Competition Authority’s interim order to prohibit a state-owned airport operator to implement a planned reallocation of the queuing system for taxis at Arlanda airport as the planned system would have amounted to an abuse of a dominant position (Luftfartsverket)
Vinge (Stockholm)
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Vinge (Stockholm)
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Vinge (Stockholm)
Background Luftfartsverket (“LFV”) is a state-owned company that operates Swedish public airports. In the autumn of 2009, LFV announced that it planned to implement a new queuing system for taxis at Terminals 2 and 5 at Stockholm Arlanda Airport. Subsequent to LFV’s announcement, several smaller (...)

The EU Commission announces a market test on commitments offered by an energy company (ENI)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 4 February 2010, the Commission announced that the Italian energy company ENI had proposed structural remedies to address the Commission’s concerns that the management and operation of natural gas transmission pipelines by ENI could infringe Article 102 TFEU, and stated its intention to (...)

Mergers

The Slovak Council of the Competition Authority clarifies the conditions for notification of an intention of a concentration (CEZ/Lumius)
BPV Braun Partners
An amendment to the Slovak Competition Act, which entered into force with effect from 1 June 2009, introduced the possibility of a pre-signing merger notification. From now on, mergers can also be notified before a legally binding transaction document has been signed, e.g. on the basis of a (...)

The European Commission clears in phase I a merger in the internet search market addressing the concept of concentration and conducting a detailed two-sided market analysis (Microsoft, Yahoo!Search Business)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
Microsoft/Yahoo! – the concept of a concentration* The Commission’s recent decision approving Microsoft’s acquisition of Yahoo!’s Search Business (including internet search and search advertising) contains an interesting application of the definition of a concentration under the Merger Regulation. (...)

The European Commission clears merger in the internet search and search advertising services markets (Microsoft, Yahoo)
European Commission - DG COMP
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European Commission
"Economic background of the Microsoft/Yahoo! Case"* I. Introduction This paper offers an economic background for the analysis conducted by the Commission during the recent M.5727 Microsoft/Yahoo! transaction and complements the article ‘The Microsoft/Yahoo! Search business case’ published in (...)

The Hungarian Competition Office clears concentration in the cement sector and interprets the legal definition of joint control (HeidelbergCement/Schwenk)
lakatos, koves and partners
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Kinstellar
On 18 February 2010 the Hungarian Competition Office (“HCO”) cleared the acquisition of a 0.01 per cent stake in Duna-Dráva Cement Kft. (“DDC”) by Schwenk Zement KG (“Schwenk”) from HeidelbergCement Central Europe East Holding BV (“Heidelberg”). DDC is a cement factory owned by Heidelberg and Schwenk. (...)

The Italian Competition Authority finds the commitments proposed by the parties suitable to ensure the correct implementation of the remedies imposed for the approval of a banks merger (Banca Intesa/San Paolo IMI)
Desogus Law Office (Cagliari)
It seems that the Banca Intesa/San Paolo IMI merger case may finally come to an end. By a recent decision, the Italian Competition Authority (ICA) accepted the remedies offered by the parties to ensure the correct implementation of the obligations they undertook for the regulatory approval of (...)

The UK Competition Appeal Tribunal orders the Competition Commission to reconsider its clearance of a merger on the basis of absence of vertical concerns (Live Nation / Ticketmaster)
Herbert Smith Freehills (Brussels)
Following a reference of the case to it from the OFT, on 22 December 2009, the UK Competition Commission ("CC") announced that it had decided to clear unconditionally the proposed merger of Ticketmaster Entertainment Inc. ("Ticketmaster"), a ticketing agent, and Live Nation Inc. ("Live (...)

State Aid

The European Commission approves the establishment of a national agency constituting an impaired asset relief scheme for financial institutions in Ireland (National Asset Management Agency)
European Commission - DG COMP
"State aid: main developments between 1 January and 30 April 2010"* On 26 February 2010, the Commission approved the establishment of the National Asset Management Agency (NAMA), an impaired asset relief scheme for financial institutions in Ireland. The purpose of NAMA is to restore stability (...)

The European Commission conditionally approves State aid package and restructuring of European financial services group (Dexia)
Université Libre de Bruxelles (ULB)
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Credit Agricole
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European Commission - DG COMP
"The Dexia restructuring decision"* On 26 February 2010, the Commission took a final, conditional decision approving the State aid package to, and the restructuring of, Dexia SA (‘Dexia‘), which benefited from a large State aid package. This conditional decision follows an in-depth investigation (...)

The European Commission authorizes Danish scheme providing export loans to Danish exporters and/or their clients experiencing difficulties in accessing funding
European Commission - DG COMP
"State aid: main developments between 1 January and 30 April 2010"* The Commission has authorised a Danish scheme providing export loans to Danish exporters and/or their clients who are experiencing difficulties in accessing funding in the current financial crisis. The Commission found the (...)

The European Commission authorizes plans notified by Sweden to provide a guarantee enabling a car manufacturer to access a loan from the European Investment Bank (Saab Automobile)
European Commission - DG COMP
"State aid: main developments between 1 January and 30 April 2010"* The Commission has authorised plans notified by Sweden to provide a guarantee that will enable Saab Automobile AB to access a loan from the European Investment Bank (EIB). The loan to be granted by the EIB will co-finance (...)

Procedures

The Swedish Competition Authority adopts general guidelines on trading prohibitions for infringments of competition rules
European Commission
Sweden: New General Guidelines on Trading Prohibitions for Infringements of Competition Rules On 24 February 2010, the Swedish Competition Authority (SCA) has adopted general guidelines on the imposition of trading prohibitions and trading prohibition immunity. Trading prohibitions may be (...)

The English Court of Appeal’s reminds of how novel points in a case should impact on the penalty imposed (National Grid)
Linklaters (Hong Kong)
Businesses and their advisors are often confronted by situations where the law in relation to their behaviour is either unclear or uncertain. This raises an underlying concern that if their conduct is later deemed illegal, what impact should the uncertainty have on the illegality and/or any (...)

The French Commercial Supreme Court quashes the Court of Appeal decision in the iPhone case without any practical effect (Apple iPhone)
Vogel & Vogel
The Court of Cassation has quashed and annulled the decision by which the Paris Court of Appeal upheld the order for interim measures - which are very unusual - leading to the suspension of Orange’s exclusive deal to market the iPhone . According to the Court of Appeal, exclusive agreements (...)

The French Court of cassation rules that the Paris Court of appeals has not given a legal basis to its judgement confirming the NCA decision having put an end to an exclusive distribution agreement on the mobile phone market (Apple iPhone)
EDHEC Business School
Further to an agreement with Apple company, Orange became the exclusive carrier service provider and exclusive iPhone wholesaler over the French territory. Bouygues Télécom referred the matter to the French Competition Authority which ruled that this agreement seriously and immediately undermined (...)

The European Council appoints the new Competition Commissioner Almunia
Van Bael & Bellis (Brussels)
After the European Parliament’s endorsement on 9 February 2010, the Council formally appointed the new Commission on 10 February 2010. Mr. Joaquín Almunia took office on the same day and replaced Ms. Neelie Kroes as Commissioner for Competition. Mr. Almunia, an economist by profession, was the (...)

The Italian Competition Authority transmits to the government a document which highlights the need for reforms to ensure the development of competition and consumer protection
European Commission
Italy: “Annual Law for Competition” Pursuant to Article 47 of L. 99/2009, the Italian Government must submit to the Parliament, a draft of the “annual law for competition”. The “annual law for competition” should remove any existing legal or administrative obstacles to the opening of markets and (...)

The French Supreme Court reaffirms its case law on the parties’ right of access to documents in the framework of the commitments procedure (CRSP)
Van Bael & Bellis (Brussels)
In three judgments of 2 February 2010 (all published on 23 February 2010) the French Supreme Court annulled the judgments of 26 November 2008, whereby the Paris Court of Appeal had annulled commitments decisions adopted by the French Competition Authority in the pharmaceutical sector. This case (...)

Regulatory

The French Competition Authority issues an opinion on competition and regulation of airport activities
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence recommends a strengthening of the open competition obligations and advocates the implementation of a more efficient regulation.* A request for an opinion had been submitted to (...)

The Portuguese Competition Authority issues a study on consumer mobility in the electronic communications sector
European Commission
Portugal: The Competition Authority (PCA) concludes a study on Mobility in the Electronic Communications Sector In February 2010, the Portuguese Competition Authority completed the Study on Consumer Mobility in the Electronic Communications Sector. The Report concludes that there is limited (...)

Public sector

The Luxembourg administrative Court of first instance qualifies for the first time a contract as a “service concession” under EU law (Eltrona, Nokia Siemens, Imagin and Coditel : CATV network)
NautaDutilh (Luxembourg)
Facts of the case 1. In 2008 the city of Mersch launched a public tender procedure in order to choose the best qualified operator for the management of its municipal cable television (CATV) network, over which television content is distributed and broadband internet services are offered. (...)

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