January 2009

Anticompetitive practices

The Italian Antitrust Authority fines more than € 1 M two undertakings in the sector of harbour operating services for infringement of Art. 81 EC (Costa Container Lines / Sintermar-Terminal darsena Toscana)
National University of Singapore
The Italian Antitrust Authority (hereinafter, also “IAA”) has recently fined two undertakings active in the sector of harbour operating services for having infringed Article 81 of the Treaty of Rome. Parties of the investigation The proceeding started after a report sent to the Authority by (...)

The European Commission fines six producers in the Marine Hoses cartel (Bridgestone, Yokohama, Dunlop Oil & Marine, Trelleborg, Parker ITR, Manuli, PW Consulting)
European Commission - DG COMP (Brussels)
"The Marine Hoses cartel"* I. Introduction On 28 January 2009, the Commission adopted a decision relating to proceedings under Article 81 of the EC Treaty imposing a fine of over € 131 million on six producers of marine hoses. There was a key novelty in the marine hoses case: it was the first (...)

The Paris Court of Appeal partly confirms the decision of the Competition authority imposing a global fine of € 37 million on 5 toy manufacturers and 3 distributors for an agreement to fix Christmas toys’ resale prices (EPSE Joué Club)
UGGC Avocats (Paris)
Description of the impugned case This case involves a straightforward RPM system agreed among suppliers on the one hand and applied between suppliers and between distributors on the other hand. The Conseil de la concurrence (now Autorité de la concurrence) imposed a global fine of € 37 M on 5 (...)

The President of the Czech Republic signs the new Criminal Code which introduces criminal sanctions for horizontal agreements
Havel, Holasek & Partners (Prague)
Introduction On 27 January 2009, the President of the Czech Republic signed the new Criminal Code adopted by the Chamber of Deputies and approved by the Senate. The codex will enter into force on 1 January 2010 whereby it will replace the current Criminal Code, dating back to 1961. In short, (...)

The Higher Regional Court of Düsseldorf does not categorically rule out unjust enrichment claim for involvement in a cartel (Otis)
Van Bael & Bellis (Brussels)
In a judgment of 23 January 2009, which was recently made available, the Higher Regional Court of Düsseldorf (“Court”) dismissed a claim by a customer (Edelhoff) for the restitution of sums already paid under a contract with the lift manufacturer Otis, on the basis that the contract with Otis for (...)

The Hellenic Competition Commission imposes fines for prohibited vertical agreement in breach of Art. 81 EC and mirror national provisions relating on the port services market (Piraeus Port Authority/Mediterranean Shipping Company)
University of Southampton
1. The alleged infringement The case concerned a contract of provision of port services between the Piraeus Port Authority SA (hereinafter PPA) and Mediterranean Shipping Company SA (MSC). It specifically provided that the ships of the MSC would have priority in using the infrastructure of the (...)

The Italian Competition Authority investigates the coordination of prices by three gas suppliers in violation of Art. 81 EC (Prezzo del GPL per riscaldamento regione Sardegna)
Codacons
Following the notice about the cartel in relation to fixing the price of GPL gas, the Italian Competition Authority (ICA), has decided to investigate the conducts of the three main Italian suppliers of gas. The ICA, was made aware that ButanGas, Eni and Liquigas (the three gas suppliers) were (...)

The Paris Court of Appeal rules on network reorganization and termination of distribution agreements (Volkswagen / Montélimar Automobiles)
Vogel & Vogel
Up until 2003 a car manufacturer had distributed its vehicles via networks specific to each brand by guaranteeing territorial exclusivity to all of its dealers. With the entry into force of Regulation n° 1400/2002 , the company opted for a qualitative and quantitative selective distribution (...)

The Czech Office for Protection of Competition implements informal settlement procedures (Kofola - Albatros)
Weil, Gotshal & Manges (Prague)
The Office for Protection of Competition (“Office”) recently started to implement ‘settlement procedures’ as an alternative way of ending sanction proceedings initiated by it. The Office adopted the policy of ‘settlement procedures’ despite the absence of any legislative basis in that regard. It (...)

The Budapest Court of Appeal upholds the NCA decision against the book resale price maintenance system (Association of Hungarian Book Publishers and Distributors)
Szabó Kelemen & Partners
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University of East Anglia - CCP (Norwich)
The Association of Hungarian Book Publishers and Distributors (hereinafter the “Association”) has 144 members. The members are both publishers and booksellers. The Association adopts the so called Competition Regulation and defines the frameworks of the competition rules of the industry. The (...)

The Polish Supreme Court confirms the NCA’s decision on illegality of an "English clause" on the market for football broadcasting rights (Canal + / Polski Związek Piłki Nożnej)
Hogan Lovells (Warsaw)
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PKN Orlen
On 7 January 2009, the Polish Supreme Court issued a long awaited judgement concerning an “English clause“ in an agreement between pay TV operator (Canal +) and a Polish football association, Polski Związek Piłki Nożnej ("the PFA"), which was assessed by the President of the Office of Competition (...)

The Korean Fair Trade Commission considers antitrust exemptions for certain cartels to assist economic recovery
Jones Day (Beijing)
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Winston & Strawn (New York)
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Jones Day (Tokyo)
In an effort to aid the country’s recovery from economic crisis, the Chairman of the Korea Fair Trade Commission (KFTC) reportedly has announced that the KFTC may invoke its power to exempt certain cartels from the Korea antitrust laws, so long as the cartels do not engage in «direct price (...)

Unilateral Practices

The Cypriot Commission for the Protection of Competition rejects a complaint on predatory pricing under Section 6 of the Cypriot law for the protection of competition (Akis Ioannou and A. Ioannou Medicare, Forum Optical, Opthalmos Laser Centre v. Aktis)
Gibson Dunn (Brussels)
On the 29th of January 2009, the Cypriot Commission for the Protection of Competition (hereinafter: the “Commission”) rejected the complaint brought before it by Akis Ioannou, A. Ioannou Medicare Ltd., Forum Optical Ltd. and Opthalmos Laser Centre Ltd. (hereinafter: the “complainants”) against (...)

The French Competition Council inflicts fines for abuse of dominant position for offering loyalty rebates in the press distribution sector (NMPP)
Herbert Smith Freehills (Paris)
,
White & Case (Paris)
On 27 January 2009 , the French Competition Council (the "Council") fined Nouvelles Messageries de la Presse Parisienne ("NMPP") and its subsidiary, Société Auxiliaire pour l’Exploitation des Messageries Transports Presse ("TP"), for abusing their dominant position on the French press distribution (...)

A German district Court holds that the refusal to grant a horse riding licence can constitute an abuse of a dominant position within the meaning of Art. 82 EC (“The doped horse”)
Blomstein
Background and Decision On 22 January 2009, the District Court of Dortmund (Landgericht Dortmund) granted injunctive relief to a German show jumper who resided in the Netherlands and was an employee of a Dutch horse riding stable. He was also riding his own horses and was n° 13 of the global (...)

The Competition Authority of Bosnia & Herzegovina applies EC competition law standards prosecuting exclusive importer of automobiles for abuse of dominant position (ASA Auto / MRM export-import, "Volkswagen" case)
University of Technology (Tallinn)
Summary Competition Authority of Bosnia & Herzegovina fined an exclusive importer of the Volkswagen automobiles into B&H for abusing its dominant position on the relevant market. The abuse was manifested by the refusal to deal and application of the dissimilar conditions to the (...)

The French Competition Council hands out two key decisions in relation to the concept of abuse of state of economic dependence (Concurrence - National union of the written press distributors SNDP)
Freshfields Bruckhaus Deringer (Paris)
,
Lni avocats (Paris)
A provision specific to French competition law In France, in addition to the prohibition against the abuse of a dominant position, national competition law prohibits the abusive exploitation by a company or a group of companies (not necessarily dominant) of a situation of economic dependence (...)

The Canadian competition authority releases an update of its draft enforcement abuse of dominance guidelines (Draft Enforcement Abuse of Dominance Guidelines)
Université de Laval
On 16 January 2009 the Competition Bureau (the “Bureau”) released its Draft Enforcement Abuse of Dominance Guidelines (“Draft Guidelines”) that outline the Bureau’s approach to enforcing the abuse of dominance provisions under the Competition Act (“the Act”) (sections 78 and 79) in light of Canadian (...)

The European Commission confirms sending new statement of objections against a leading software company (Microsoft)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
The Commission has issued a press release confirming that it has sent a new Statement of Objections to Microsoft on 15th January 2009 which takes the preliminary view that Microsoft has tied its web browser Internet Explorer to Windows in violation of Article 82 EC. According to the (...)

The European Commission opens formal proceedings against a financial company regarding its use of securities identification numbers (Standard & Poor’s)
Van Bael & Bellis (Brussels)
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Practising Law Institute
On 12 January 2009, the Commission announced that it has opened formal proceedings into Standard & Poor’s (“S&P”) licensing conditions regarding International Securities Identification Numbers (“ISINs”). ISINs are unique identifiers for securities issued throughout the world, and S&P is (...)

The Bulgarian Supreme Administrative Court rules on the abuse of dominant position committed by the bus terminal administration in setting the service charges paid by the bus operators (Avtobusni prevozi)
University of Technology (Tallinn)
In 2007 bus operator Planeta Trans o.o.d. (Planeta Trans) complained to the Bulgarian Competition Authority (CPC) that Avtobusni prevozi a.d. (Avtobusni prevozi), a bus terminal authority in the city of Pleven abused its dominant position by imposing unfair prices and trading conditions, as (...)

The French Competition Authority market tests commitments offered in the energy sector (EDF)
Van Bael & Bellis (Brussels)
,
Practising Law Institute
On 7 January 2009, the French Competition Authority released a market test notice concerning certain commitments offered by the French electricity incumbent, the EDF group (“EDF”). EDF is the largest supplier of electricity in France and one of the largest players in the European electricity (...)

The Portuguese competition authority suspends promotional TV campaign of multimedia operator on the basis of alleged abuse of dominant position (ZON Multimédia)
Sérvulo & Associados
Last January 6th, 2009, the Portuguese Competition Authority (Autoridade da Concorrência - “AdC”) announced that it has ordered the telecoms operator ZON Multimédia to suspend a promotional campaign involving the attribution to its cable TV clients (of ZON/TV Cabo) of a fidelity card conferring the (...)

The Cyprus Competition Commission holds that the Department of State Purchases and Supplies does not hold a dominant position given that its market share does not allow it to act independently from its competitors (Klinete)
Neocleous
In this case, the Competition Commission decided that the Department of State Purchases and Supplies did not maintain a dominant position given that its market share did not allow it to act independently from its competitors in the market for the supply of plastic rubbish bins of a capacity of (...)

Mergers

The Italian Competition Authority clears the acquisition of the sole control of Castorama Italia by Groupe Adeo, concerning the market for the retail sale of do-it-yourself products (Groupe Adeo/Castorama Italia)
Ashurst
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Legance - Studio Legale Associato
,
Pirelli
Background On 29 January 2009, the Italian Competition Authority (“ICA”) cleared the acquisition of the sole control of Castorama Italia S.p.A. (“Castorama”) by the French company Groupe Adeo S.A. (“Adeo”), both active in the retail sale of “do-it-yourself” (“DIY”) products. The merger met the (...)

The Macedonian Administrative Court confirms a merger prohibition decision in the market for retail distribution of pharmaceutical products (Zegin)
University of Technology (Tallinn)
On 1 June 2006 Zegin, leading distributor of the pharmaceuticals on the territory of Skopje municipality agreed with two other retail distributors of medicines - Alkaloid and Pharma Corp. to acquire joint control over City Pharmacy in Skopje , which owned a network of pharmacies in the (...)

The US FTC modifies its rules of practice for adjudication in order to proceed against mergers administratively regardless of outcomes in federal court
Sheppard Mullin (San Francisco)
,
Selected Independent Funeral Homes (Deerfield)
On January 13, 2009, the Federal Trade Commission issued interim final rules amending its Rules of Practice for adjudication, reportedly with an eye toward proceeding against mergers administratively regardless of outcomes in federal court. Both the FTC and DOJ Antitrust Division must go (...)

The US FTC increases thresholds and penalties pertaining to the Hart-Scott-Rodino pre-merger notification regime and thresholds for Section 8 of the Clayton Act
WilmerHale (Washington)
,
Kirkland & Ellis (Washington)
The Federal Trade Commission (FTC) has increased thresholds and penalties pertaining to the Hart-Scott-Rodino (HSR) pre-merger notification regime. The Commission also increased the thresholds for Section 8 of the Clayton Act. Penalties for HSR Violations The maximum penalty for violations of (...)

The Greek Competition Commission imposes a fine for a non-notification of a merger between two maritime companies (Sea Star, ANEK and HSW)
European Court of Justice (Luxembourg)
The importance of a decision of the Greek Competition Commission (GCC) concerning the Greek maritime sector cannot be fully understood without at least having a general knowledge of the fundamental place this sector has in Greece and, as a consequence, in the European Union. Greece is a (...)

The Chinese MOFCOM invites comments on the draft Guidelines on the definition of relevant market
Kastell
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Linklaters (Beijing)
,
Linklaters (Brussels)
Recent developments MOFCOM, the agency charged with merger review pursuant to the Chinese Antimonopoly Law, has recently accelerated the process of building the merger control regime in China. More specifically, as regards the substantive and procedural framework for merger review, MOFCOM is (...)

The Chinese MOFCOM publishes sets of guidelines and regulations on merger review providing guidance on what counsels need to know about the China’s Anti-Monopoly Law
White & Case (Beijing)
,
Mattel (Hong Kong)
China’s Anti-Monopoly Law (AML), which went into effect on 1 August 2008, establishes China as one of the world’s most important merger review authorities, along with the U.S. and EC. The Anti-Monopoly bureau (AMB) of China’s Ministry of Commerce (MOFCOM) recently shed light on how it will (...)

The Chinese MOFCOM publishes sets of guidelines and regulations on merger review providing guidance on what counsels need to know about the China’s Anti-Monopoly Law
White & Case (Beijing)
,
Mattel (Hong Kong)
China’s Anti-Monopoly Law (AML), which went into effect on 1 August 2008, establishes China as one of the world’s most important merger review authorities, along with the U.S. and EC. The Anti-Monopoly bureau (AMB) of China’s Ministry of Commerce (MOFCOM) recently shed light on how it will (...)

The Chinese MOFCOM Anti-Monopoly Bureau publishes sets of guidelines and regulations providing further detail on implementation of the Anti-Monopoly Law
White & Case (Beijing)
,
Mattel (Hong Kong)
The Anti-Monopoly Bureau (“AMB”) of China’s Ministry of Commerce (“MOFCOM”) recently published seven sets of guidelines and regulations that provide further detail on implementation of the Anti-Monopoly Law (“AML”), which went into effect August 1, 2008. As described below, the guidance clarifies the (...)

The U.S. Federal Trade Commission announces revised dollar-amount thresholds for pre-merger notifications filed under the Hart-Scott-Rodino Act (Revised Jurisdictional Thresholds for Section 7A of the Clayton Act)
University Panthéon-Sorbonne (Paris)
The Federal Trade Commission (FTC) has recently announced revised dollar-amount thresholds for pre-merger notifications filed under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. §18a) (HSR Act). Due to an annual adjustment mechanism mandated by the major HSR amendments (...)

The Irish Advisory group on media mergers renders its review of the analysis of media mergers under the Competition Act 2002 (Report to the Tánaiste and the Minister for Enterprise)
London School of Economics
In March 2008 the then Minister for Enterprise, Trade and Employment commissioned a report to review the public interest aspects of the legal framework applicable to media mergers in Ireland. This review was undertaken in the context of a broader review of the Competition Act 2002 (the 2002 (...)

State Aid

The European Commission publishes a handbook on State aid rules to SMEs
Van Bael & Bellis (Brussels)
On 30 January 2009, the Commission published a handbook which gives a concise overview of EC State aid legislation applicable to small- and medium-sized enterprises (SME). The handbook first clarifies the definition of a SME and thereafter describes the relevant instruments under which aid can (...)

An Italian Court holds that the decision of the EC Commission to open a formal investigation procedure on the same State aid measure at stake before national courts, is not per se sufficient to prove the fumus boni iuris to grant interim relief (AirOne)
EUJUS Law Firm (Rome)
Factual background The Court, in line with its previous judgment of 9 September 2008 (Case of the Court of first instance of Sassari Alghero, 09 September 2008, on the same issue), rejected the claims made by AirOne asking for a declaration of unlawful State aid granted to Ryanair and for an (...)

The Belgian Constitutional Court finds there was no disguised State aid regarding the underevaluation of costs for operators of nuclear reactors in comparison to the costs borne by other operators (Union professionnelle belge des médecins spécialistes en radiothérapie-oncologie)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual background L’Agence fédérale de controle nucléaire (the Federal Agency of nuclear control) is a public organisation with legal personality in relation to protection of the population and environment against the dangers of ionizing rays. The Agency is also responsible for providing the (...)

The Irish authorities notify the European Commission of their intention to recapitalise national Bank with € 1.5 billion (Anglo Irish Bank)
European Commission - DG COMP (Brussels)
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Groupe Holder
,
"State aid: main developments between 1 January and 30 April 2009"* On 19 December 2008, the Irish authorities informed the Commission of their intention to recapitalise Anglo Irish Bank with €1.5 billion. On 8 January 2009, the Irish authorities formally notified this measure. Due to the (...)

The Polish Supreme Court rules that ignorance of law burdens both contracting parties if they are concluding a contract which is contrary to law, in particular with EC State aid law (Fish-processing plant)
Hogan Lovells (Warsaw)
,
PKN Orlen
Factual background: The claimant brought an action against the Agency for Restructuring and Modernization of Agriculture for payment in relation to the agreement on grant of financial aid for the claimant in respect of a project relating to periodic suspension of activities concerning (...)

Procedures

The California Supreme Court clarifies the meaning of damages under the Consumers Legal Remedies Act and the matter of standing to seek declaratory relief (Meyer / Sprint Spectrum)
Sheppard Mullin (Los Angeles)
California Supreme Court Clarifies the Meaning of “Any Damage” as a Standing Requirement Under California’s Consumers Legal Remedies Act* California Supreme Court’s Kagan analysis is clarified by Proposition 64 spill-over. Meyer v. Sprint Spectrum LP, ___ Cal. __, 2009 WL197560 (January 29, 2009). (...)

The Polish Government adopts new leniency regime
Van Bael & Bellis (Brussels)
A new Polish government leniency regulation (the "Leniency Regulation") entered into force on 24 February 2009. By adopting certain elements of the ECN Model Leniency Programme, the Leniency Regulation facilitates applications for immunity or a reduction to a fine and gives potential applicants (...)

The English High Court rules on the right of the Office of Fair Trading to close a competition act investigation due to resource constraints (Cityhook - Cornwall)
Pinsent Masons (London)
Background Cityhook Limited ("Cityhook") was founded in 1999 by three British engineers to exploit a patented technology invented by one of its founders. The patented technology consisted of a foreshore ducting system for drilling a tunnel under the foreshore and sea-bed to enable the (...)

The Dutch Trade and Industry Appeals Tribunal holds that Art. 6 ECHR implies a foreign language defendant has the right to translations of all documents necessary to prepare its defence in a Dutch antitrust procedure (North Sea Shrimps II)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Freshfields Bruckhaus Deringer (Amsterdam)
Background On 19 January 2009, the Dutch Trade and Industry Appeals Tribunal (the "CBb") ruled on two joint cases in which both a number of producer organisations and the Netherlands Competition Authority (the "NMa") had appealed decisions of the District Court Rotterdam (Rechtbank Rotterdam). (...)

The Supreme Court of the Netherlands declares that the national provision equivalent to Art. 81 EC is not a provision of public policy and, as a consequence, may not be applied ex officio by Dutch courts (De gemeente Heerlen / Whizz Croissanterie)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
The municipality of Heerlen is the owner of four buildings located in a shopping street of that city. In order to erect those buildings, the municipality concluded an agreement with Whizz in November 1999, according to which Whizz had to evacuate the kiosk within which it was running his (...)

The French Supreme Court confirms interim publication measures imposed on a pharmaceutical company (Schering-Plough)
Van Bael & Bellis (Brussels)
On 13 January 2009, the French Supreme Court rejected Schering-Plough‘s appeal against the judgment of the Paris Court of Appeal of 5 February 2008 upholding in its entirety a French Competition Council interim decision of 11 December 2007. In that decision, the Competition Council had ordered (...)

The Estonian Government publishes draft to create a leniency programme
Van Bael & Bellis (Brussels)
On 6 January 2009, the Estonian Ministry of Justice published draft legislation which would create a leniency programme offering protection to cartel informants in Estonia. Currently, some protection is afforded to whistleblowers under the Estonian Code of Criminal Procedure, which allows the (...)

The Polish Competition Authority introduces new fining guidelines
Van Bael & Bellis (Brussels)
On 1 January 2009, Poland applied new fining guidelines to competition law infringements. The new guidelines aim at increasing transparency in the way in which antitrust sanctions are set by the Polish Office of Competition and Consumer Protection (the “OCCP”). The guidelines introduce specific (...)

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