February 2013

Anticompetitive practices

The EU Court of Justice upholds that a regulation introducing a system of compulsory training for chartered accountants may fall within the scope of the interdiction in Article 101(1) TFEU (OTOC)
Blackstone Chambers
Anticompetitive behaviour by professional regulators – Wouters naturalised* The ECJ’s judgment in Case C-309/99 Wouters – that the Dutch legal regulator was an association of undertakings for the purposes of competition law, but that its prohibition on partnerships between lawyers and accountants (...)

The German Competition Authority confirms its searches at the premises of three companies in the steel industry
German Competition Authority (Bonn)
Bundeskartellamt confirms searches at three companies in the steel industry* The Bundeskartellamt confirms that on 28 February 2013 it carried out searches at three companies in the steel industry. The authority followed up the suspicion that companies on the market for the sale of steel strip (...)

The EU Court of Justice rules on compulsory training obligations by professional bodies (Order of Chartered Accounts)
Van Bael & Bellis (Brussels)
On 28 February 2013, the Court of Justice of the European Union (“ECJ”) handed down a judgment on a reference for a preliminary ruling from the Portuguese Court of Appeal on the application of Article 101 TFEU to professional associations. The ECJ found that a professional association is (...)

The Belgian Competition Council imposes fines on five large flour mills (Werhahn, Meneba, Ceres, Dossche and Brabomills)
European Commission (Brussels)
Belgium: The Competition Council imposes Fines on five large Flour Mills* On 28 February 2013, the Competition Council (the Council) sanctioned five flour mills (Werhahn, Meneba, Ceres, Dossche and Brabomills) for having taken part into a cartel on the market for the production and sale of (...)

The Spanish Competition Authority fines ten companies and sector association for cartel in flexible polyurethane foam (Foam cartel)
European Commission (Brussels)
Spain: The Comisión Nacional de la Competencia fines ten Companies and Sector Association for Cartel in Flexible Polyurethane Foam* In its Resolution of 28 February 2013, the Comisión Nacional de la Competencia (CNC) Council found that several companies active in the sector of the flexible (...)

The Finnish Market Court imposes fines for price fixing and bid rigging (Asunto-Väylä, CSC Consulting, Hansatalot, Kiinteistö, Rovakartano, Sata-Väylä)
University of Helsinki
The Finnish Market Court has imposed minor fines for bid rigging and price fixing. The Finnish Competition and Consumer Authority, which investigates competition restrictions and makes proposals for fines to the Finnish Market Court, had proposed that the Market Court should impose a 15 000 (...)

The German Federal Court of Justice rules that, unlike in the EU, the German 10%-limit for calculating fines is not a cap but rather constitutes a ceiling of a framework within which a fine has to be calculated (Grauzementkartell)
Mayer Brown (Brussels)
In its judgment of 26 February 2013, the German Federal Court of Justice ("FCJ") upheld the decision of the Higher Regional Court of Düsseldorf and confirmed that Sect. 81(4) Sentence 2 Act Against Restraints of Competition ("ARC") is in conformity with the German constitution. This provision (...)

The German Federal Court of Justice hands down a decision that is likely to have a significant impact on the setting of cartel fines, potentially reducing the maximum cartel fine for some defendants (Grauzementkartell)
Jones Day (Frankfurt)
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Jones Day (Dusseldorf)
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Jones Day (Frankfurt)
The German Federal Court of Justice ("BGH") has handed down a decision that is likely to have a significant impact on the setting of cartel fines in Germany, potentially reducing the maximum cartel fine for some defendants. The decision deals with fines imposed on a number of German cement (...)

The UK Competition Appeal Tribunal closes appeal against OFT dairy retail prices decision by consent order (Tesco)
Van Bael & Bellis (Brussels)
On 26 February 2013, the UK Competition Appeal Tribunal (“CAT”) made a consent order closing Tesco’s appeal against the Office of Fair Trading’s (“OFT”) dairy retail prices decision In December 2012, the CAT had handed down its judgment on Tesco’s appeal against an earlier OFT decision (...)

The French Competition Authority concludes to an absence of infringement of competition rules following a complaint by several actors of the ophthalmic sector (Kalivia)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Kalivia was not in breach of competition rules when it set up its network of authorised opticians*. The Autorité de la Concurrence was informed by a professional body of opticians (the SynOpE) and two (...)

The German Federal Court of Justice confirms compliance of key provision on the fining of cartel law violations with the constitution (Grauzementkartell)
Commeo
In its decision of 26 February 2013, which was published on 10 April 2013, the German Federal Court of Justice (“FCJ”) inter alia had to decide on the constitutionality of the key provi-sion on the fining of cartel law violations. The FCJ not only confirmed the constitutionality of this fining (...)

The Indian Competition Appellate Tribunal upholds NCA’s finding that three medical equipment/systems suppliers had engaged in bid-rigging (Safdarjung Hospital)
Shardul Amarchand Mangaldas & Co (New Delhi)
SUMMARY In the Safdarjung Hospital Case, the Competition Commission of India found that three medical equipment/systems suppliers had engaged in bid-rigging contrary to Section 3 of the Competition Act, 2002, and imposed a penalty on each of 5% of its average annual turnover over two/three (...)

The Austrian Cartel Court imposes additional fines in resale price maintenance case (Building insulation case)
European Commission (Brussels)
Austria: Additional Fines imposed by Cartel Court in Building Insulation Case* Following several inspections conducted in 2012 and the applications for fines by the Federal Competition Authority (FCA), the Cartel Court imposed on 25 February 2013 fines on a producer and a merchant for resale (...)

The Turkish Competition Authority announces some of the most common anti-competitive practices in the bread industry based on its experience and informs bread manufacturers about the competition rules that are to be complied with in the relevant market
University of Sussex
This study analyses the announcement of the Turkish Competition Authority (TCA) in which it has informed bread manufacturers about the competition rules that are to be complied with in the industry and made it clear that some practices that are common among bread manufacturers across Turkey, (...)

The Korean FTC finds that the territorial restraints clauses contained in the distribution agreements of a liquor manufacturer are illegal since they suppress intra-brand competition among the wholesale distributors (Kook Soon Dang)
Bae Kim & Lee
I. Introduction Vertical restraints are largely scrutinized under a less strict standard of review as compared to horizontal restraints – especially in relation to naked price-fixing or market division. Since the US Supreme Court held in the watershed decision of 1977, Continental TV v. GTE (...)

The Chinese Competition Authorities impose hefty fines on two State-owned liquor distillers for resale price maintenance (Kweichow Maotai / Yibin Wuliangye)
Qualcomm
On February 22, 2013, two Chinese provincial competition authorities served their respective enforcement orders upon two Chinese state-owned liquor distillers with formidable amounts of fines: one for Kuichow Maotai in the amount of RMB 247 million (USD 40 mil.) and the other for Wuliangye, RMB (...)

The Competition Commission of India issues a ’cease and desist’ order to 29 manufacturers of elastic rail clips engaged in bid-rigging in a tender in the railway sector (Orissa Concrete and Allied Industries,...)
Shardul Amarchand Mangaldas & Co (New Delhi)
SUMMARY In tendering for the supply of anti-theft elastic rail-clips to the South Eastern Railways, 29 manufacturers were found to have quoted the same rates, allocated the tender quantity amongst themselves, artificially raised prices and acted in concert to eliminate competitors. The CCI (...)

The German Competition Authority launches a web survey targeting 2,400 sellers who offer their products on major internet platform (Amazon Marketplace)
German Competition Authority (Bonn)
Bundeskartellamt surveys Amazon Marketplace sellers* Today the Bundeskartellamt launched a web survey of 2,400 sellers who offer their products through Amazon Marketplace. Within the framework of administrative proceedings under competition law the Bundeskartellamt is examining the effects of (...)

EU Commission proposes a draft for a revised regulation on the application of art. 101(3) TFEU on agreements for technology transfer
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy Blog. Competition Law as a complement to Intellectual Property Law?* The European Commission is currently consulting on proposed revisions to the Technology Transfer Block Exemption Regulation (TTBER) and associated Guidelines. These (...)

The German Competition Authority concludes proceedings against flour mills and imposes fines totaling more than 65 million euros (Verband Deutscher Mühlen)
German Competition Authority (Bonn)
Bundeskartellamt concludes proceedings against flour mills and imposes fines totaling more than 65 million euros* The Bundeskartellamt has concluded its cartel proceedings against companies in the milling industry and imposed fines of approx. 41 million euros on 22 companies, the association (...)

The German Competition Authority fines flour mills more than € 65 M for long-running cartel (Verband Deutscher Mühlen)
Van Bael & Bellis (Brussels)
On 19 February 2013, the FCO imposed fines of approximately € 41 million on 22 flour milling companies, an industry association, and their representatives. These fines were imposed in addition to an approximately € 24 million fine already levied in October 2011. According to the FCO, the (...)

The Spanish Competition Commission renders legally binding commitments offered by a professional association in the market for expert reporting in occupational hazards (UICM)
European Commission - DG COMP (Brussels)
On 19 February 2013 the Spanish Competition Commission (“CNC”) adopted a resolution rendering legally binding the commitments offered by the Inter-Professional Union of the Community of Madrid (“UICM”) in order to alleviate the anti-competitive allegations raised against it. The CNC initiated its (...)

The Canadian Judge at the Superior Court of Quebec convicts three individuals for conspiring to fix gas prices in two Quebec cities (R/Gosselin)
Affleck Greene McMurtry
Gas price fixers convicted after trial* A Quebec Superior Court judge recently convicted three individuals of conspiring to fix gas prices in two Quebec cities, Sherbrooke and Magog. To date 33 individuals and seven companies have been convicted fixing gas prices in Quebec and eastern (...)

The Spanish Competition Authority fines three companies for cartel in paper products sector (Enri 2000, Pacsa, Papelera del Carrión and Unipapel Transformación y Distribución)
European Commission (Brussels)
Spain: The Comisión Nacional de la Competencia fines three Companies for Cartel in Paper Products Sector* In its Resolution of 15 February 2013, the Comisión Nacional de la Competencia (CNC) Council found that Enri 2000, S.A., Pacsa, Papelera del Carrión S.L. and Unipapel Transformación y (...)

The US Court of Appeals for the 9th Circuit widens pool of plaintiffs able to pursue conspiracy claims under California Cartwright Act (AT&T Mobility/AU Optronics)
Wolters Kluwer (Riverwoods)
Ninth Circuit Widens Pool of Plaintiffs Able to Pursue Conspiracy Claims Under California Cartwright Act* The Ninth Circuit on Thursday ruled that a plaintiff need not make a purchase in California to recover overcharges for price-fixed goods under the California Cartwright Act. AT&T (...)

The Brussels Court of Appeal annuls the decision imposing a 29000€ fine on professional bakers’ association (VEBIC)
Liège University - IEJE
I. Facts Vebic is the Flemish association of bakers. Vebic published a magazine entitled “Passie” (among other things). Until 2004, the price of breads in Belgium was set by Law. As the price regulation mechanism was abandoned, VEBIC began to publish a so-called “bread price index”, in Passie, (...)

The French Competition Authority fines eight pig slaughterers and two professional bodies for several anti-competitive agreements
European Commission (Brussels)
France: The Autorité de la concurrence fines eight Pig Slaughterers and two Professional Bodies for several anti-competitive Agreements* On 13 February 2013, following a complaint from four pig farmers and the opening of ex officio proceedings which allowed the Autorité de la concurrence (the (...)

The Dutch Competition Authority reduces the fines imposed on companies in the flour milling industry based on the ’inability to pay’ in light of fines imposed by the German and French Competition Authorities (Grain Millers, Ranks)
Leuven University
I. Facts On 16 December 2010, the Dutch Competition Authority (the former Nederlandse Mededingingsautoriteit, as of April 2013, Autoriteit Consument & Markt, hereinafter the ’ACM’) imposed a fine of a total of € 81,600,000 on fifteen flour producers. According to the ACM, they had infringed (...)

The German Competition Authority coordinates with the Dutch NCA its fining against a German mill involved in a cartel in the flour industry (Mühlen)
European Commission (Brussels)
The Netherlands and Germany: Joint Solution to cross-border Inability to Pay Claim in Flour Cartel Cases* At the end of January 2013, the Bundeskartellamt (BKartA) and the Netherlands Competition Authority (NMa) coordinated their fining with regard to a German flour mill (the undertaking). (...)

The Italian Supreme Court holds that the violation of an anticompetitive agreement did not constitute unfair competition (Ordine dei Farmacisti della Provincia di Caserta)
Cleary Gottlieb Steen & Hamilton (Rome)
On 8 February 2013, the Italian Supreme Court (the “Court”) quashed a decision by the [Commissione centrale per gli esercenti le professioni sanitarie] (the national commission for healthcare operators; the “National Commission”), which, in turn, had upheld a ruling by the [Ordine dei Farmacisti (...)

The Hellenic Competition Commission fines a professional association for infringing Art 1 Act 703/1977 by fixing the prices for constructing buildings and restricting their sale (E.K.K.E.)
Bank of Greece
Introduction On 7 February 2013, the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC) issued an infringement decision against the Building Constructors’ Association of Greece (Enosi Kataskeuaston Ktirion Ellados, hereafter: E.K.K.E.) for violation of Art 1 Act (...)

An Advocate General of the ECJ postulates that the EU principle of effectiveness precludes a provision of national law which makes the grant of access to documents by a national court subject to the consent of the antitrust infringers (Donau Chemie)
Matrix Chambers
Pfleiderer revisited: the AG Opinion in Donau Chemie* On 7 February, AG Jääskinen issued his Opinion in Case C-536/11 Donau Chemie, a much anticipated case (at least among competition lawyers) concerning the compatibility with EU law of an Austrian law which prohibits third party access to the (...)

The EU Court of Justice hands down preliminary ruling on post-term non-compete obligation in franchise agreement (La Retoucherie)
Van Bael & Bellis (Brussels)
On 7 February 2013, the Court of Justice of the European Union (“ECJ”) handed down its ruling in response to a preliminary reference from a Spanish court that had questioned the meaning of the phrase “premises and land from which the buyer has operated during the contract period” in Article (...)

The EU Court of Justice rules on the interpretation of Article 101 TFEU and finds that undertakings cannot justify restrictions of competition relying on the claim that a competitor operates illegally on the relevant market (Akcenta)
ClientEarth (Bruxelles)
Vigilantes on the market: Can undertakings restrict competition to ‘help out’ public authorities?* In an interesting case decided today the CJEU held that a number of Slovak banks could not exclude a competitor even if that competitor was allegedly operating illegally on the Slovak market. It’s (...)

The EU Court of Justice rules in favor of the Slovakian NCA and rules that an agreement intended to exclude a competitor is contrary to the competition rules even if the competitor is operating unlawfully on the market (Akcenta)
Agency for the Cooperation of Energy Regulators (ACER) (Slovenia)
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Factual background On 9 June 2009, the Antimonopoly Office of the Slovak Republic (the "AMO"), a first-level authority, found that three major banks – Slovenská sporiteľna, a.s. (the "SLSP"), Československá obchodná banka a.s. (the "CSOB") and Všeobecná úverová banka a.s. (the "VUB")(jointly refered (...)

The Dutch Court of ‘Midden-Nederland’ rejects claims that a car manufacturer infringed competition law by entering into agreements or concerted practices with members of its network in order to refuse access to its network and by abusing its dominant position on various markets by refusing to accept the claimants as approved repairers (KIA Motors Nederland)
VVGB
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Baker McKenzie (Brussels)
NL30 KIA Motors Nederland LJN: BZ1050 06.02.13 Lower Court, access to selective distribution system The Dutch Court of ‘Midden-Nederland’ rejects claims that KIA Motors Nederland B.V. infringed competition law by entering into agreements or concerted practices with members of its network in (...)

The Italian Competition Authority opens investigation against pharmaceutical companies over suspected cartel in ophthalmologic medicines market (Novartis and Roche)
Van Bael & Bellis
On 14 February 2013, the Italian Competition Authority (the “Authority”) announced that it had opened an investigation against Genentech Inc., Hoffmann-La Roche Ltd, Novartis AG, Novartis Farma S.p.A. and Roche S.p.A., over suspicions that these may have been operating an illegal cartel in (...)

The Italian Competition Authority opens proceedings against pharmaceutical companies in relation to an alleged anticompetitive agreement for restricting drug sales (Roche, Novartis)
Stanford University - Stanford Law School
Roche and Novartis investigated for an alleged cartel in Italy* On 6 February 2013 the Italian Competition Authority opened proceedings against the Roche Group and the Novartis Group in relation to an alleged anticompetitive agreement for excluding the ophthalmic use of Roche’s Avastin in order (...)

The Italian Competition Authority launches an investigation against pharmaceutical companies suspected of restricting drug sales (Roche, Novartis)
Studio Legale Scoccini E Associati
On February 6, 2013, the Italian Competition Authority ("ICA") launched a cartel investigation against Hoffmann-La Roche ("Roche"), Novartis, their respective Italian subsidiaries, and Genentec, a US company controlled by Roche and in which Novartis holds a 33% shareholding. The companies (...)

The Italian Competition Authority launches an investigation against a cartel allegedly carried out by two pharmaceutical companies (Roche, Novartis)
Desogus Law Office (Cagliari)
The Italian Competition Authority launches an investigation against a cartel allegedly carried out by Roche and Novartis in the pharmaceutical market (Roche Novartis) The facts of the case The Italian Competition Authority (ICA) has opened an Article 101 TFEU proceedings against Roche and (...)

The Irish Competition Authority secures binding commitments in case of resale price maintenance in footwear products (FitFlop footwear distributor, Double Bay Enterprises)
European Commission (Brussels)
Ireland: Commitments in Case of Resale Price Maintenance in Footwear Products* In February 2013, the Competition Authority (the Authority) secured binding commitments from FitFlop footwear distributor, Double Bay Enterprises Limited, in relation to its policy of resale price maintenance (...)

Unilateral Practices

The French Competition Authority rejects complaint based on allegations of abuse of dominance on the market for online advertising (E-Kanopi)
Stanford University - Stanford Law School
French Competition Authority dismisses E-Kanopi’s complaint against Google* On 4 March 2013 the French competition authority dismissed (only available in French) a complaint by E-Kanopi alleging that Google abused of its dominant position by seeking to force it out of the market in breach of (...)

The French Competition Authority sanctions a professional body and an association for exclusionary practices implemented in the sector of electronic transfer of tax and accounting data (French Association of Chartered Accountants)
Baker Botts (Brussels)
Following a complaint submitted in December 2010, the French Competition Authority (hereinafter the ’FCA’) adopted on 28 February 2013 a decision (hereinafter the ’Decision’) whereby it fined two bodies a total of €1,247,220 for an abuse of a dominant position in the sector of online transmission of (...)

The Spanish Competition Authority puts an end to infringement proceedings against hardware and software company suspected of refusal to supply (Oracle)
Hogan Lovells (Madrid)
The Spanish Competition Authority (Comisión Nacional de la Competencia, the CNC) put an end to the infringement proceedings S/354/11 Oracle (the Decision). These infringement proceedings were formally opened pursuant to a complaint by a competitor which considered that Oracle had committed an (...)

A U.S. Court dismisses claims of “shared monopoly” against two companies in the market for rail freight transportation services (Union Pacific and BNSF)
Cornell University
On February 26, the United States District Court for the District of Columbia granted defendants’ motion to dismiss Section 1 and Section 2 claims against Union Pacific Railroad Company ("UP") and BNSF Railway Company ("BNSF"). (Oxbow Carbon & Minerals LLC, et. al., v. Union Pacific Railroad (...)

The Danish Supreme Court ends a decade-long case concerning the national postal incumbent by delivering the final judgment in the predatory price case (Post Danmark)
Kromann Reumert (Copenhagen)
On 15 February 2013, the Danish Supreme Court ended the decade-long Post Danmark case by delivering the final judgment in the case. This note gives a brief overview of the facts and the procedure of the case and then comments on what we can learn from the Supreme Court judgment in its (...)

The Competition Commission of India finds no anti-competitive effect of exclusive distribution agreement that conferred monopoly in the aftermarket for medical equipment warranty services (Dr. Anoop Bhagat v. Spectra Medical System India and Solta Medicals)
University of Tilburg - Center for Law and Economics (TILEC)
Background The Competition Commission of India in a recent matter found that allegations regarding Exclusive Distribution Agreement and Abuse of Dominant Position were not true and thus rejected the matter out rightly finding not even a prima facie case. However, the merit of the complaint did (...)

The Danish Supreme Court reverses NCA’s decision and finds that the national postal carrier incumbent did not abuse its dominant position by applying different prices to its own customers and certain customers of a competitor (Post Danmark)
Danish Competition and Consumer Authority (Copenhagen)
On 15 February 2013, the Danish Supreme Court reversed a decision by the Danish Competition Council according to which the national postal operator, Post Danmark, had abused a dominant position on the market for unaddressed mail by charging different prices to its own customers compared to the (...)

The French Competition Authority refuses to issue interim measures regarding alleged practices in the photovoltaic electricity sector (SUN’R / EDF)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence will not issue interim measures against EDF but will pursue its investigation on the basis of the complaint lodged by SUN’R*. The Autorité de la concurrence, following a complaint (...)

The Court of Milan orders the incumbent telecoms operator to pay €1.8m damages to a licensed operator in a follow on action for abuse of a dominant position (Telecom Italia / OKcom)
Simmons & Simmons (Milano)
In a further follow on action of note, the Court of Milan published a judgment on 13 February 2013, ordering Telecom Italia to pay damages of some €1.8m to OKcom. OKcom had sought compensation for harm it claimed to have suffered through Telecom Italia, the incumbent telecoms operator, abusing (...)

The Italian Supreme Administrative Court upholds the NCA’s decision fining leader in construction markets for abuse of a dominant position on the market for plasterboard (Saint Gobain)
Covington & Burling (Brussels)
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University Bocconi
With its judgment of 12 February 2013, the Italian Supreme Administrative Court (Consiglio di Stato) upheld the judgment of the Italian Administrative Court of First Instance (TAR Lazio) confirming the 2010 decision of the Italian Competition Authority (ICA) fining Saint Gobain Ppc Italia (...)

The English High Court dismisses interim injunction in abuse of dominance case concerning refusal to supply in HIV prescription medicines market (Chemistree Homecare / Abbvie)
Van Bael & Bellis (Brussels)
On 11 February 2013, the English High Court dismissed an application for an interim injunction in an abuse of dominance case concerning an alleged refusal to supply a patented HIV prescription medicine. Chemistree Homecare Ltd (the “claimant”) had applied for an interim injunction against (...)

The Indian Competition Commission fines the board for control of cricket approximately USD 10 M for abuse of dominant position (BCCI)
University College London
The Competition Commission of India, in response to a complaint filed by Mr. Surinder Singh Barni, against the Board for Control of Cricket in India(BCCI) for abuse of dominant position with respect to professional league cricket tournament, has issued a cease and desist order against BCCI (...)

The Australian Competition Tribunal ‘undeclares’ third party access for rail lines company applying ‘private profitability’ test to 44H(4)(b) (The Pilbara Infrastructure Pty)
Deakin University
On 8 February 2013 the Australian Competition Tribunal (Tribunal) handed down its decision in Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd. This brought to an end a long running legal dispute over third party access to Rio Tinto’s rail lines in the Pilbara region of (...)

The Belgian College of Competition Prosecutors finds that energy company abused its dominant position on the market for the generation, wholesale and trading of electricity (Electrabel)
Van Bael & Bellis (Brussels)
On 7 February 2013, the Belgian College of Competition Prosecutors filed a reasoned report with the Competition Council, finding that the energy company Electrabel abused its dominant position primarily by withholding capacity and thus artificially drove up prices on the market for the (...)

The Shenzhen Intermediate Court decides that a telecom company abused its patent rights by requiring to pay excessive royalties for essential patents for mobile telephone technology (Huawei / America IDC)
Renmin University of China
I. The background of Huawei vs. America IDC anti-monopoly case for abuse of essential patents in standard In this case, the plaintiff, Huawei Technology Co., Ltd. (hereinafter referred to “Huawei”) mainly provides products and services to the communication operators, professional network owners, (...)

Mergers

The Spanish Competition Authority approves an acquisition subject to remedies regarding crossed-minority stakes in competitors (CaixaBank and Banco de Valencia)
Cuatrecasas, Goncalves Pereira (Madrid)
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Cuatrecasas, Goncalves Pereira (Madrid)
On December 14, 2012, CaixaBank S.A. (“CaixaBank”) notified the National Competition Commission (“CNC”) of the acquisition of sole control of Banco de Valencia, S.A. (“Banco de Valencia”). The transaction involved two credit entities active mainly in the retail bank market in Spain. On February 28, (...)

The UK Competition Commission reopens investigation into Ryanair’s minority stake in Aer Lingus (Ryanair / Aer Lingus)
Van Bael & Bellis (Brussels)
On 28 February 2013 (one day after the European Commission blocked Ryanair’s third attempt to acquire Aer Lingus), the UK Competition Commission (“CC”) announced that it will reopen a long-running inquiry into Ryanair’s acquisition of a minority stake in Aer Lingus. This investigation has (...)

The German Competition Authority clears acquisition of a publishing business of the daily newspaper from an insolvent publishing house (Frankfurter Allgemeine Zeitung / Frankfurter Rundschau)
German Competition Authority (Bonn)
Bundeskartellamt clears acquisition of Frankfurter Rundschau by FAZ* Today the Bundeskartellamt has cleared plans by Frankfurter Allgemeine Zeitung GmbH or rather Frankfurter Societät GmbH, to acquire the publishing business of the daily newspaper Frankfurter Rundschau from the insolvent Druck- (...)

The Regional Court of Cologne rejects damages claim by a hearing aid manufacturer against the Federal Cartel Office (GN Store Nord)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
In a judgment of 26 February 2013, the German Regional Court of Cologne rejected an action for damages in the amount of more than € 1.1 billion by Danish hearing-aid manufacturer GN Store Nord A/S against the German Federal Cartel Office (FCO). GN Store sought compensation from the FCO for (...)

The Finnish Consumer and Competition Authority argues in Court against a merger between two suppliers of plastic infrastructure pipe systems (Uponor / KWH-Yhtymä)
Van Bael & Bellis (Brussels)
On 25 February 2013, the Finnish Competition and Consumer Authority (“FCCA”) made a proposal to the Market Court to prohibit a planned concentration between Uponor Oyj and KWH-Yhtymä Oyj, the two largest suppliers of plastic infrastructure pipe systems in Finland. This is only the third such (...)

The German Competition Authority prohibits a merger between two major TV-cable network operators (Tele Columbus / Kabel Deutschland)
German Competition Authority (Bonn)
Bundeskartellamt prohibits takeover of Tele Columbus by Kabel Deutschland* The Bundeskartellamt has prohibited plans by Kabel Deutschland Holding AG (KDG) to acquire the cable network operator Tele Columbus GmbH. Andreas Mundt, President of the Bundeskartellamt: ""After intensive (...)

The German Competition Authority prohibits merger between cable network operators (Tele Columbus / Kabel Deutschland)
Van Bael & Bellis (Brussels)
On 22 February 2013, the German Federal Cartel Office (“FCO”) prohibited the proposed acquisition of Germany’s third-largest cable network operator, Tele Columbus GmbH (“Tele Columbus”), by the country’s biggest cable network operator, Kabel Deutschland Holding AG (“Kabel Deutschland”). (...)

The US Supreme Court confirms the narrow scope of "State Action" doctrine (FTC v. Phoebe Putney)
Jones Day (Washington)
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Jones Day (Washington)
In FTC v. Phoebe Putney, the Supreme Court has unanimously reversed the Eleventh Circuit holding that a Georgia hospital authority’s acquisition of a hospital was covered by state-action immunity, emphasizing that "state-action immunity is disfavoured". The Supreme Court held that, as the State (...)

The EU Commission unconditionally clears the acquisition by Japanese imaging equipment company of Belgian software provider (Canon / I.R.I.S.)
Van Bael & Bellis (Brussels)
On 18 February 2013, the European Commission unconditionally cleared the acquisition by Japanese imaging equipment company Canon of Belgian software provider I.R.I.S.. The transaction did not meet the EU notification thresholds, but was referred to the European Commission by the (...)

The Cyprus Commission for the Protection of Competition fines two undertakings that failed to notify their merger (Excel-Serve Management / IFG)
Chrysses Demetriades & Co. LLC (Limassol)
CYM7 Excel-Serve Management Ltd/IFG Group Plc Case No. 8.13.012.32 15.02.13 NCA Background The Decision of the Cyprus Commission for the Protection of Competition (“CPC”), relates to the acquisition of 100% of the shareholding of Excel-Serve Management Limited (“Excel-Serve”) by IFG Group Plc (...)

The Competition Authority of the Republic of Serbia approves subject to conditions a merger between the two largest sugar producers in the country (Sunoko / Hellenic Sugar Industry)
Kinstellar (Belgrade)
On 13 February 2013, the Commission for the Protection of Competition of the Republic of Serbia (the "Competition Authority") approved, under conditions related to the fulfilment of certain structural and behavioural measures, a merger between Sunoko d.o.o. Novi Sad, a company with its (...)

The US FTC announces that it has revised the thresholds that determine whether companies are required to notify federal antitrust authorities about a transaction under the HSR Antitrust Improvements Act
Sheppard Mullin (Washington)
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Sheppard Mullin (Washington)
Higher Filing Thresholds for HSR Act Premerger Notifications Effective February 11, 2013* 1. Higher Thresholds For HSR Filings Higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 became effective on February 11, 2013. The filing thresholds (...)

The South African Competition Tribunal approves conditionally large merger on the market for infant-nutrition products (Nestlé / Pfizer)
Primerio
S.A. Clears 3-to-2 Infant Nutrition Merger with Remedies* The South African Competition Tribunal has green-lighted the almost $12bn (R106bn) Nestlé/Pfizer deal, which will combine the largest and 3rd-largest infant-nutrition companies in the South African republic, leaving competitor Aspen in (...)

England’s new economic regulator for healthcare advises the OFT and CC on the first NHS Foundation Trust merger notified following the Health and Social Care Act 2012 (Dorset FT)
UEA law school - Centre for Competition Policy
Article published on Centre for Competition Policy blog. Monitor’s Advice to the OFT and the New Healthcare Regulation* On 11 February, Monitor (the independent regulator of NHS foundation trusts and economic regulator for healthcare in England) published its advice to the Office of Fair (...)

The Czech Office for the Protection of Competition fines supermarket chain company for not implementing the remedies agreed in a merger case (REWE / Plus Discount)
Kinstellar (Prague)
Subject matter of the case The Office for Protection of Competition (the “Office”) imposed a fine of CZK 24,890,000 (approx. EUR 983,000) on REWE Zentralfinanz eG (“REWE”) for non-compliance with the remedies imposed in merger control proceedings regarding the merger of REWE and PLUS-DISCOUNT (...)

The Australian Competition and Consumer Authority issues a statement of issues outlining its concerns in relation to the proposed acquisition by a global food manufacturer of local infant food producer (Heinz / Rafferty’s Garden)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). Like taking food from a baby* On 7 February 2013, the ACCC issued a statement of issues outlining its concerns in relation to the proposed acquisition by Heinz of local infant food producer (...)

The Spanish Competition Authority imposed its highest fine ever for a breach of commitments in a merger case in the TV industry (Mediaset)
Van Bael & Bellis (Brussels)
On 7 February 2013, the Spanish Competition Authority (“CNC”) imposed its highest ever fine for a breach of commitments in a merger case. The fine was imposed on Spanish television group Mediaset based on commitments it made in exchange for CNC approval of the acquisition of Cuatro by (...)

The Albanian Competition Authority fines companies for gun-jumping and failure to notify (Viloil, Geci, Media Vision, Alpha Bank/Emporiki Bank of Greece)
Këllezi Legal (Geneva)
The Albanian Competition Authority recently fined several companies for failure to notify a transaction and for late filing. The fines still remains symbolic at an amount not exceeding EUR 1’000; however, the number of decisions shows a trend in enforcement policy. On 5 February 2013, an (...)

The U.S. FTC proposes amendment to HSR Rules codifying "pull and refile" and mandating withdrawal for deals that will not proceed
Jones Day (Washington)
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Jones Day (Washington)
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The U.S. Federal Trade Commission (FTC) has voted to issue a proposed rulemaking amending the rules governing Hart-Scott-Rodino (HSR) filings made by parties to a proposed merger. The amendments would (1) codify the informal "pull and refile" process and (2) mandate automatic withdrawal of (...)

The US FTC issues proposed rulemaking relating to withdrawal of Hart-Scott-Rodino filings
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
The Federal Trade Commission (FTC) recently issued a Notice of Proposed Rulemaking that, if adopted, will codify the FTC’s longstanding informal procedures for voluntarily withdrawing and refiling an HSR Act Premerger Notification and Report Form (HSR filing) and, more significantly, will (...)

Procedures

The ECJ AG Kokott establishes that an unobjectionable error of law may exonerate an undertaking from antitrust liability to pay fines (Schenker)
Mircea & Partners (Bucharest)
I. Introduction Should the competition authorities bring proceedings against subjectively innocent undertakings? The assumption made by the respondents in the present case was that their own conduct was lawful and this hypothesis of lawfulness could be strengthened by the fact that during a (...)

The US Supreme Court holds that proof of materiality is not a prerequisite to certification of a securities-fraud class action (Amgen/Connecticut Retirement Plans & Trust Funds)
Cohen Milstein (Washington)
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Cohen Milstein (New York)
This case is not an antitrust case, nonetheless it has enormous precedential importance to class certifications in antitrust cases. Plaintiff securities purchasers brought suit under the federal securities laws, relying in order to establish common impact under Rule 23 on the (...)

The Maltese Competition and Consumer Appeals Tribunal upholds NCA’s request not to exhibit documents obtained in the course of its investigations which were not used for rejecting the complaint (The Hon. Joe Mizzi)
In terms of Article 13A of Maltese Competition Act (Chapter 379 of Laws of Malta, hereinafter referred to as ’MCA’), the Director of the Office for Fair Trading (hereinafter referred to as ’Director’) applied to the Competition and Consumer Affairs Tribunal (hereinafter referred to as ’Tribunal’), (...)

The Maltese Competition and Consumer Appeal Tribunal rules on access to file by complainant (Hon. Mizzi)
European Commission (Brussels)
Malta: The Competition and Consumer Appeal Tribunal rules on Access to File by Complainant* On 27 February 2013, in Hon. Mizzi vs Office for Competition, the Competition and Consumer Appeal Tribunal (the Tribunal) reached a decision in parte clarifying the extent to which information (...)

The German Federal Court of Justice confirms constitutionality of central fining provision of competition law (Cement Cartel)
European Commission (Brussels)
Germany: The Bundesgerichtshof confirms Constitutionality of Central Fining Provision of German Competition Law * On 26 February 2013, the Bundesgerichtshof, (Federal Court of Justice) the highest German court in cartel cases, has upheld a judgment by the Oberlandesgericht Düsseldorf imposing (...)

The French Competition Authority announces the launch of a pharma sector inquiry
JPTT & Partners
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White & Case (Paris)
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Novartis (Rueil-Malmaison)
On 26 February 2013, the French Competition Authority (“Autorité de la concurrence”) announced the launch of a pharma sector inquiry. The Autorité ’s main goal is to address the cost of prescription medicines for social security, the high prices of non-reimbursable medicines, and the low level of (...)

The United Arab Emirates is soon to enact its first regulatory framework governing anti-competitive behavior and monopoly practices
Jones Day
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Jones Day
The United Arab Emirates (the "UAE") is soon to enact its first regulatory framework governing anti-competitive behavior and monopoly practices. Federal Law No. 4 of 2012 Concerning Regulating Competition (the "UAE Competition Law") is to come into effect on February 23, 2013 and is set to (...)

The French Competition Authority launches inquiries into distribution of medicinal products and interregional coach transport
European Commission (Brussels)
France: The Autorité de la concurrence launches Sector Inquiries into Distribution of Medicinal Products and Interregional Coach Transport* In February 2013, the Autorité de la concurrence (the Autorité) launched two ex officio sector inquiries into, the distribution of medicinal products and (...)

The Italian Competition Authority’s sector inquiry tackles the reasons behind constant increases in the cost of private motor insurance
Simmons & Simmons (Milano)
The Italian Competition Authority’s sector inquiry tackles the reasons behind constant increases in the cost of private motor insurance in Italy head on. In brief the Italian Competition Authority (ICA) has identified a number of features that raise competition concerns in the private motor (...)

The US Supreme Court limits state-action immunity in hospital merger (Phoebe Putney Health System)
Paul Hastings (San Francisco)
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Paul Hastings (San Francisco)
On February 19, 2013, the Supreme Court visited a corner of the antitrust map that it last glimpsed during the Reagan Administration—the state action doctrine. The case that prompted this sojourn, FTC v. Phoebe Putney Health System, Inc., arose when a hospital authority in Albany-Dougherty (...)

The US Supreme Court decides a case interpreting the doctrine of state action immunity from federal antitrust liability (Phoebe Putney Health System)
University of Indiana - Maurer School of Law
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University of Indiana - Maurer School of Law
I. The State Action Doctrine State Action immunity from the application of U.S. antitrust law was established by the U.S. Supreme Court’s decision in Parker v. Brown. Based on principles of federalism and deference to state powers to structure their own economic policy, the doctrine allows (...)

The US Supreme Court narrows "State-Action" doctrine in hospital merger challenged by the US FTC (Phoebe Putney)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
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General Electric (Washington)
In a unanimous decision issued on February 19, 2013, the U.S. Supreme Court ruled that the state-action doctrine did not immunize Phoebe Putney Health System’s acquisition of Palmyra Park Hospital in Albany, Georgia. The decision immediately was hailed by FTC Chairman Jon Leibowitz as "a big (...)

The US Supreme Court unanimously rejects a Georgia state-sanctioned hospital authority’s claim that its acquisition of a competing hospital was immune from antitrust scrutiny under the state-action doctrine (FTC / Phoebe Putney)
Cleveland-Marshall School of Law
Phoebe Putney: A Quick Post-Mortem, and Some Thoughts on the Next Justice Stevens* I often feel a certain deflation after the Supreme Court decides an antitrust case. After watching a case for months, prognosticating about it with other antitrusters, reading umpteen blog posts, reading the (...)

Advocate General Jääskinen of the ECJ puts forward that an absolute level of protection should be afforded by legislative means to the leniency applicants (Donau Chemie)
European Procurement Law Group
Why is #competition law so special? Or how #leniency will kill private #damages actions (AG C-536/11)* In his Opinion of 7 February 2013 in case C-536/11 Donau Chemie and Others, Advocate General Jääskinen has developed a line of reasoning that goes well beyond the issue at hand (whether access (...)

The Slovak Antimonopoly Office initiates public discussion on the amendment of the competition act
Agency for the Cooperation of Energy Regulators (ACER) (Slovenia)
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University of Oxford
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Factual background As a follow-up to the release by the Slovak Anti-Monopoly Office (the “AMO”) of information on the planned amendment of the Slovak Competition Act (the “Act”), the AMO recently initiated public discussion on the amendment. The declared purpose of the amendment is to better link (...)

EU Court of Justice Advocate General Jääskinen concludes that the Austrian consent rule impedes access to justice by damages claimants and it is precluded by Union law (Donau Chemie)
Mircea & Partners (Bucharest)
I. Introduction The main pursuit of this article is to use the opportunity given by the present case in order to revisit the apparent dichotomy existent between private and public enforcement of competition law. My claim is that the two avenues must be seen as complementary rather than (...)

Regulatory

The Supreme Court of Pakistan sets aside the orders passed by the Lahore High Court and orders to the Chairman of the Competition Commission of Pakistan to issue notices to all parties concerned and decide the matter (ADG LDI v. Brain Telecommunication)
Supreme Court of Pakistan
Vide its order dated 21st February 2013 a two-member bench of the Supreme Court of Pakistan granted leave to appeal to ADG LDI (Pvt.) Ltd and Circle Net Communications Pakistan (Pvt.) Limited (hereinafter “Petitioners”) and allowed the appeal in the following terms: (a) set aside the orders (...)

The Danish Competition Council settles a case concerning two anticompetitive decisions in the collegiate rules of a minor association of accountants
Danish Competition and Consumer Authority (Copenhagen)
Anti-Competitive Decisions in the Collegiate Rules of Foreningen Danske Revisorer* On February 20, 2013, the Danish Competition Council settled a case concerning two anti-competitive decisions in the collegiate rules of a minor association of Danish accountants. According to the rules in (...)

The Danish Competition Council advises the Minister of Culture against reintroducing fixed retail prices in the book market
Danish Competition and Consumer Authority (Copenhagen)
The Danish Competition Council advises the Minister of Culture against reintroducing fixed retail prices in the book market* On February 20 2013, The Danish Competition Council (DCC) has sent an open letter to the Minister of Culture in which the DCC advises the Minister of Culture against (...)

The Swedish Competition Authority files an application for appeal in case of denial to grant a competitor access to a firefighting training area (Räddningstjänsten Dala Mitt)
Swedish Competition Authority (Stockholm)
The Swedish Competition Authority appeals ruling* The Swedish Competition Authority wants the Market Court to reverse the acquittal of the Dala-Mitt Rescue Services. The Stockholm City Court’s assessment is incorrect on several points and includes evidence requirements that go above and beyond (...)

The Romanian Competition Council publishes its final conclusions regarding the automotive spare parts market
Kinstellar (Bucarest)
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OMV Petrom
In April 2012, the Romanian Competition Council (the "RCA") in its report following to the sector inquiry into the automotive spare parts market (the "Report").proposed the implementation of the "repair clause" into Romanian legislation After a public consultation on its initial analysis and (...)

Public sector

The AG Jääskinen of the CJEU postulates that the prohibition of reliance on the capacities of more than one auxiliary undertaking in order to fulfil the selection criteria is precluded by EU public procurement law (Mannocchi Luigino)
European Procurement Law Group
With a little help from my friends: A flexible and competition-oriented interpretation of rules on reliance on third party capabilities in public procurement (Opinion in C-94/12)* This is an extended version of the comment previously posted on Albert’s personal blog. According to the current (...)

The Swedish Competition Authority files application for procurement fines against an allegedly illegal direct award of contract in connection with a staff party (Sveriges Radio)
Swedish Competition Authority (Stockholm)
Sveriges Radio taken to court over procurement fines* Sveriges Radio carried out an illegal direct award of contract in connection with a staff party. The Swedish Competition Authority therefore requires Sveriges Radio to pay procurement fines of SEK 200,000. Sveriges Radio (public service (...)

The Swedish Competition Authority requires payment of procurement fines from national TV-broadcasting company (SVT)
Swedish Competition Authority (Stockholm)
SVT is required to pay fine for illegal direct award of contract* When SVT (the Swedish public service broadcaster) had a staff party, the company directly approached two suppliers instead of conducting a public procurement. The Swedish Competition Authority have now requested that SVT pay (...)

The Swedish Competition Authority requires payment of procurement fines for signing an agreement as regards rental of printers, scanners and copying machines without public procurement (Karolinska institutet)
Swedish Competition Authority (Stockholm)
Rental of office equipment must be procured* The Swedish Competition Authority requests that Karolinska Institutet pays SEK 200,000 in fines/procurement damages for having signed an agreement pertaining to rental of printers, scanners and copying machines without public procurement. (...)

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