January 2005

Anticompetitive practices

A Spanish Court dismisses the appeal seeking to qualify an agency agreement as a resale agreement (Melón - E.S. Zarza / Repsol)
London School of Economics
On 2 January 2003, the Juzgado de Primera Instancia n° 74 de Madrid dismissed an action brought by Melón, S.A. (“Melón”) and E.S. Zarza, S.L. (“Zarza”), two undertakings active in the distribution of oil products, against Repsol Comercial de Productos Petrolíferos, S.A. (“Repsol”), an undertaking (...)

The US Court of Appeals for the Federal Circuit reverses the ruling of the lower court maintaning that a rebuttable presumption arises from the possession of patent rights to tying engineered fastening systems (Independent Ink / Illinois Tool Works)
Sheppard Mullin (Los Angeles)
Of Bats And Sunshine: Presumption Of Market Power In Patent Tying Case Alive But Rebuttable* In January, the Court of Appeals for the Federal Circuit issued an opinion in Independent Ink Inc. v. Illinois Tool Works, Inc.. Addressing the issue whether, in a Section 1 tying case, a rebuttable (...)

The Brussels Court of Appeal finds that a health insurance fund can not be regarded as an undertaking as it fulfils its legal obligations when providing an extra compensation for orthodontic treatment (BVBA Kristel Cools/CM Antwerp)
AZ Delta
On January 25th, 2005 the Court of Appeal of Brussels decided in a preliminary ruling that the Christian Mutuality (CM) Antwerp, a health insurance fund, could not be regarded as an undertaking as it fulfilled its legal obligations when providing an extra orthodontic compensation for its (...)

The European Commission fines members of the monochloroacetic acid cartel (Akzo, Atofina, Hoechst, Clariant)
European Commission - DG COMP
"Commission fines members of the monochloroacetic acid cartel"* In a decision adopted on 19 January 2005 the Commission found that four groups of undertakings had participated in a cartel in the market for monochloroacetic acid. The cartel ran for 15 years from 1984 until 1999 and covered the (...)

The European Commission adopts its first commitment decision pursuant to Article 9 of Regulation 1/2003 concerning joint selling of German football media rights (Bundesliga)
European Commission - DG COMP
"Joint selling of Bundesliga media rights — first Commission decision pursuant to Article 9 of Regulation 1/2003"* Introduction On 19 January 2005 the Commission adopted the first commitment decision pursuant to Article 9 of Regulation 1/2003. In case COMP/C-2/37.214 — Joint selling of the (...)

A Dutch Court declares a franchise agreement void because of a clause allowing the franchisor to impose a maximum price for promotional purposes (Market Food Group - “Bakkerijt Stoepje")
European Commission - DG HR
Market Food Group B.V. (hereafter “MFG”) is active in bakery products. It has developed a franchising network under the brand “Bakkerij ‘t Stoepje” for open air markets stands in The Netherlands. The franchise agreement contains inter alia the following clauses: The franchisee shall exclusively (...)

The Austrian cartel Court rejects the complaint of resale price maintenance against the new distribution system of an airplane company (Lufthansa)
Reidlinger Schatzmann Rechtsanwälte
In summer 2004, after Deutsche Lufthansa AG had terminated all their contracts with Austrian travel agencies in April 2004 (taking effect from October 2004), the Austrian travel agencies’ trade association complained to the Austrian Federal Competition Authority [Bundeswettbewerbsbehörde (BWB), (...)

Unilateral Practices

The Hungarian Competition Authority fines T-Mobile for having misinformed consumers to the detriment of competitors on the basis of national competition provisions (T-Mobile)
McDermott Will & Emery (Brussels)
,
Government of the Czech Republic
The Hungarian Competition Council initiated proceedings against T-Mobile in order to find out whether it had violated Article 8 paragraphs 1 and 2 of the Hungarian Competition Act and Article 7 paragraphs (2) (b) of the Hungarian Act on Business Advertising Activity, through advertising the (...)

The Hungarian Competition Council fines Vodafone and T-Mobile for unfair and restrictive market practices on mobile tariffs (Vodafone, T-Mobile)
Gide Loyrette Nouel
,
European Commission - DG COMP
The Hungarian mobile phone market is characterized by intense competition between the three mobile phone service providers (T-Mobile Magyarország Távközlési Részvénytársaság hereinafter “T-Mobile”, Pannon GSM and Vodafone Magyarország Mobil Távközlési Rt. hereinafter “Vodafone”). The struggle for market (...)

L’autorité polonaise de concurrence sanctionne les pratiques tarifaires discriminatoires de l’opérateur national de transport ferroviaire par une amende de EUR 5 M (PKP Cargo)
Sulima Grabowska Sierzputowska
,
Solter Capital Fizan
Office de Protection de la Concurrence et des Consommateurs (Urzad Ochrony Konkurencji i KonsumentówUOKiK), 5 janvier 2005, PKP Cargo S.A. Communiqué de presse Selon l’article 8 de la loi polonaise du 15 décembre 2000 portant protection de la concurrence et des consommateurs (l’équivalent (...)

Mergers

The UK Competition Commission clears a merger in the construction data market, subject to the divestment of a project information and contact data business from the target (Emap/ABI)
Serle Court
The operation Emap plc (Emap) is a media company, active in the sale of magazines, the ownership of local radio stations and the organisation of events and conferences. Through Emap Glenigan, it provides construction sales and marketing services (CSMS) and, more particularly, construction (...)

The European Commission receives a notification for the proposed acquisition of a producer in the acetyls and plastic business by a U.S. private merchant-banking company addressing the issue of the role of quantitative analysis to delineate antitrust markets (Blackstone/Acetex)
Conseil régional de Midi-Pyrénées
,
RBB Economics (Brussels)
"The role of quantitative analysis to delineate antitrust markets: An example. Blackstone / Acetex"* Introduction On 20 January 2005, the Commission received a notification for the proposed acquisition of Acetex, an active producer in the acetyls and plastic business, by Blackstone, a U.S. (...)

The Brazilian Antitrust Authority annnounces a new interpretation of the Brazilian merger notification threshold reducing foreign merger filings (ADC Telecommunications / Krone International)
Hughes Hubbard & Reed (Washington)
,
Stanford University
,
Brazilian merger notification requirements, traditionally a major hurdle for multinational mergers, have just become less burdensome. In an unexpected development last Wednesday, the Brazilian antitrust authority (“CADE”) announced a new interpretation of the Brazilian merger notification (...)

The UK Office of Fair Trading clears the acquisition of a multiplex cinemas chain by a private equity firm which had recently acquired the UK’s largest cinema chain, subject to 11 locality specific divestments (Terra Firma/UCI)
Added Value Capital Partners (AVCP)
The operation Terra Firma is one of the UK’s largest private equity (PE) fund managers. In September 2004 PE funds controlled by Terra Firma acquired Odeon Equity Co. Limited (“Odeon”), the largest cinema exhibitor in the UK. Odeon has 95 cinemas comprising a mix of multiplex (more than one (...)

The Irish Competition Authority cleared a merger in the market for construction materials subject to notification of all future acquisitions (Grafton/Heiton)
Université de Genève
The operation On 6 January 2005 the Irish Competition Authority (“ICA”) cleared in Phase 2 the acquisition by Grafton Group plc (“Grafton”) of the 71% of the share capital it did not already own of Heiton Group plc (“Heiton”). Grafton is active in the market for building materials (“builders (...)

The Turkish Competition Authority cleared a merger in the hot adhesive markets subject to limitation of the duration of the non-competition clause (Ergon/National Organik)
Esin
The operation Ergon is a UK based investment company which is a vehicle for Imperial Chemical Industries Group (“ICI”) which is being used for the purpose of carrying out its investments in foreign countries. Ergon does not have any subsidiary in Turkey. ICI is multinational company which has a (...)

State Aid

The European Commission proposes to phase out tax benefits for exempt companies in Gibraltar imposing strict limits on existing as well as new beneficiaries
European Commission - DG COMP
"Commission’s proposal to phase out tax benefits for exempt companies in Gibraltar: Strict limits on existing as well as new beneficiaries"* Description of the exempt companies scheme Companies registered with the Gibraltar authorities under the 1967 Gibraltar exempt companies legislation are (...)

The Cyprus Commissioner for State aid control authorises an aid scheme for the payment of social security contributions to employers and disabled employees finding that it falls within EC Reg. N° 2204/2002 ("Scheme for the payment of social security contributions")
International Transport Forum
Factual Background On 4 January 2005, the Department of Labour of the Ministry of Labour and Social Insurance notified a draft aid scheme to the Commissioner for State aid control, entitled “scheme for the payment of social security contributions to employers and disabled employees”. The scheme (...)

The Cyprus Commissioner for State aid control authorizes an aid scheme aimed at facilitating the recruitment of unemployed persons with a serious disability in the private sector (Scheme for recruitment of disabled persons)
International Transport Forum
Factual background On 4 January 2005, the Department of Labour in the Ministry of Labour and Social Insurance notified a draft aid scheme to the Commissioner for State aid control, entitled “scheme for the provision of incentives regarding the recruitment of persons with a serious disability in (...)

Procedures

The UK’s Competition Appeal Tribunal decides for the first time on claims for damages for breach of Art. 81 EC under national competition provision (Vitamins)
White & Case (London)
,
Ince & Co
Background These two cases, heard concurrently before the UK’s Competition Appeal Tribunal (“CAT” or “Tribunal”) were the first (and so far the only) claims for damages to be brought pursuant to Section 47A of the Competition Act 1998 (the “Act”). Section 47A of the Act is a significant legislative (...)

The US Supreme Court holds that the sentencing guidelines may no longer mandate judges to enhance sentences beyond the statutory maximum unless the predicate facts supporting such enhancements are first proved by a jury beyond a reasonable doubt, or admitted by defendant (Booker)
Steptoe & Johnson (Washington)
On January 12, 2005, the US Supreme Court handed down a pair of landmark decisions that could fundamentally shift the balance of power for corporations facing criminal antitrust investigations from the Department of Justice (“DOJ”). In United States v. Booker and United States v. Fanfan, the (...)

The Paris Court of appeal orders the telecommunications incumbent to offer third party operators a new technical and commercial offer giving appropriate access (France Telecom )
Sheppard Mullin (Brussels)
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Lni avocats (Paris)
For the first time, the Paris Court of Appeal increased the amount of fines imposed by the Competition Council. Although this decision does not implement EC competition law, but French competition law provisions, it is worth mentioning here In February 2000, the Competition Council ruled that (...)

La Cour de cassation confirme que, même lorsqu’il applique les articles 81 et 82 CE, le Conseil de la concurrence doit mettre en ?uvre les règles françaises de procédure (Pharma Lab, GlaxoSmithkline et Pfizer)
Freshfields Bruckhaus Deringer (Paris)
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Eversheds Sutherland (Paris)
Dans l’affaire Pharma Lab, GlaxoSmithkline et Pfizer la société Pharma-Lab, grossiste-exportateur en spécialités pharmaceutiques, avait dénoncé auprès du Conseil de la concurrence des pratiques qu’elle estimait constitutives de refus de vente en vue de restreindre le commerce parallèle de médicaments. (...)

Regulatory

The French Competition Authority issues an opinion on the broadband internet market (ART)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence issues ART (Telecommunications Regulation Authority) with an opinion on the broadband internet market.* Under the consultation procedure carried out in accordance with article L. (...)

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