January 2015

Anticompetitive practices

The Spanish Supreme Court rules on the discussed criteria for calculating fines due to infringements in competition law (BCN Aduanas y Transportes, Bofill Arnán)
DLA Piper (Madrid)
On 29 January 2015, the Spanish Supreme Court ruled in the judicial proceedings raised by "BCN Aduanas and Transportes, S.L." against the decision of the Spanish Competition Commission (SCC), dated on 3 December 2011, pursuant to the sanctioning proceedings S/0269/10 (the "Decision"). This (...)

The Russian Supreme Court judges that several chemical companies have not fixed monopolistically high prices concerning the apatite concentrate (FosAgro)
Russian Federal Antimonopoly Service
The Supreme Court supported FAS approaches to apatite concentrate pricing* The findings of the Supreme Court of the Russian Federation on a petition of “Mineral Fertilizer Plant of Kirovo-Chepetsk Chemical Works” about actions of the “FosAgro” Group supported the Recommendations of the Federal (...)

The Indian Competition Commission finds that agreements between pharmaceutical companies and trade associations would not qualify as horizontal nor vertical agreements but could nonetheless be examined under the general prohibition on anti-competitive agreements (Himachal Pradesh Chemist and Druggist Association)
Vinod Dhall and Talwar Thakore & Associates
Another chemist and druggist association penalised* In its ninth decision against various chemist and druggist trade associations in India, the Competition Commission of India (CCI) fined the Himachal Pradesh (a state in India) Chemist and Druggist Association 10% of its average turnover for (...)

The US District Court for the Southern District of New York allows alleged manipulation of foreign exchange rates claim to go forward, distinguising the case from the LIBOR ones (FX Benchmark rates)
Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
Motion to Dismiss Denied in FX Rigging Case* A federal judge in New York on Wednesday allowed a consolidated class action by U.S.-based investors concerning the rigging of the foreign exchange (FX) market to move forward. In denying a motion to dismiss, U.S. District Judge Lorna G. Schofield (...)

The U.S. District Court for the Eastern District of Pennsylvania sends second reverse-payment case to trial (Cephalon)
Rutgers University
On January 28, 2015, Judge Mitchell Goldberg of the U.S. District Court for the Eastern District of Pennsylvania denied defendants’ summary judgment motions, sending the second reverse-payment-settlement case to trial. In King Drug Company of Florence v. Cephalon, 2015 WL 356913 (E.D. Pa. Jan. (...)

The Italian Competition Authority fines several firms for breaching a previous commitment decision and cartelizing the maritime links across the Gulfs of Naples and Salerno (Organizzazione Servizi Marittimi nel Golfo di Napoli)
Desogus Law Office
By a decision made on 28 January 2015 in the case Organizzazione Servizi Marittimi nel Golfo di Napoli (Gulf of Naples) the Italian Competition Authority (ICA) has imposed fines in excess of € 14 million on seven ferry operators (Alilauro, Alilauro Gruson, SLMGL, NLG, SNAV and Medmar Navi), two (...)

The Romanian Competition Council imposes fines on four undertakings for bid-rigging in the oil and gas drilling works market (Dafora, Foraj and Upetrom 1 Mai)
Romanian Competition Council (Bucharest)
The Competition Council has sanctioned four companies for rigging the auctions organized by ROMGAZ* The Competition Council has sanctioned with fines totalling 12,968,298 lei (approximately EUR 2.89million) four companies for rigging the auctions organized by SNGN ROMGAZ S.A. The sanctioned (...)

The US District Court for the Eastern District of Pennsylvania holds that Actavis does not require plaintiffs to meet any sort of “threshold burden” for establishing that a large reverse payment is unjustified to trigger analysis under the antitrust rule of reason (Modafinil)
Kaye Scholer (New York)
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Arnold & Porter (Washington)
In re Modafinil Litigation Finds No “Threshold Burden” in Reverse Payment Suit* On Wednesday, January 28, in King Drug Company of Florence, Inc. v.Cephalon, Inc. (In re Modafinil), the US District Court for the Eastern District of Pennsylvania held that FTC v. Actavis, 133 S. Ct. 2223 (2013), (...)

The UK High Court explains to companies that the only way to challenge an infringement of the Competition Act is an appeal to the CAT and that it has to be made within the applicable time limit (Gallaher, Lindum)
St John’s Chambers
United Kingdom: Competition appeals – speak now or forever hold your peace?* It is not uncommon, where a multi-party infringement of competition law has been established and sanctioned by a competition authority for some, but not all, of the addressees of the authority’s decision to appeal that (...)

The Dutch Authority for Consumers and Markets provides useful guidance for the future assessment of sustainability initiatives involving cooperation between firms (Chicken for tomorrow)
RBB Economics (Brussels)
Valuing Sustainability? The ACM’s analysis of “Chicken for Tomorrow” under Art. 101(3)* On 26 January 2015, the Dutch competition authority announced its decision that industry-wide initiatives for the “Chicken for Tomorrow” in the Netherlands restrict competition. The ACM reached this conclusion (...)

The Romanian Competition Council imposes fines, for the first time, on several undertakings for failure to comply with their antitrust remedies in the mobile phone market (Avenir Telecom, Euronet Services companies and the Professional Football League)
Romanian Competition Council (Bucharest)
For the first time: The Competition Council applies sanctions for failure to comply with the commitments* The Competition Council has sanctioned Avenir Telecom and Euronet Services companies and the Professional Football League (LPF) with fines totalling 705,079 lei (approx. 156,340 euros) for (...)

The Spanish Supreme Court issues a landmark judgment regarding the interpretation of the 10% turnover limit for cartel fines (BCN Aduanas y Transportes)
Callol, Coca & Asociados
The Supreme Court (SC) has partially confirmed the interpretation followed by the National High Court (NHC) over the last two years regarding the limit of 10% of the company’s turnover established under Article 63 (1) of the Spanish Competition Act (SCA) for the calculation of fines. In its (...)

The Competition Commission of India holds that the conduct of an association amounted to price fixing and limitation of service and breaches the provisions of the Competition Act (Swastik Stevedores v. Dumper Owner’s Association)
Indian Competition Commission
On January 21, 2015, the Competition Commission of India (“CCI”) held that the conduct of Dumper Owner Association amounted to fixation of price and limitation of service, and hence violative of the provisions of the Competition Act, 2002 (“Act”). History: The Informant is engaged in stevedoring (...)

The Regional Labour Court Düsseldorf holds that managing directors cannot be held liable for fines imposed by the Federal Cartel Office (Managing Director of ThyssenKrupp liability)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. The Facts In 2012 and 2013 the German Federal Cartel Office (FCO) imposed heavy fines on numerous companies and individuals for participating in a cartel in the rail industry. Among the companies fined were subsidiaries of the large German steel-producing group, ThyssenKrupp, which had to (...)

The French Supreme Court upholds fines based on dawn raids carried out by the UK Office of Fair Trading in jet fuels cartel (Chevron Products / Shell / Total Outre-mer / Air France)
Simmons & Simmons (Paris)
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Simmons & Simmons (Paris)
A French Competition Authority infringement decision based on dawn raids carried out by the UK Office of Fair Trading has been upheld by France’s highest court. In a second ruling in the jet fuels cartel appeal, the French Supreme Court has upheld the 2008 decision of the French Competition (...)

The US Supreme Court redefines the standard of appellate review for claim construction (Teva)
White & Case (Palo Alto)
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White & Case (Palo Alto)
On January 20, 2015, the United States Supreme Court redefined the standard of appellate review for claim construction. In Teva Pharm. USA, Inc. v. Sandoz, Inc., the Supreme Court vacated well-established Federal Circuit precedent that applied de novo review to all aspects of claim (...)

The Higher Commercial Court of Ukraine confirms a decision alleging bid rigging between a parent company and its subsidiary forming part of the same economic entity (Star Line)
Asters
Headnote: The decision of the Territorial Division of the Antimonopoly Committee of Ukraine (the AMC) alleging bid rigging in a public tender between a parent company and its subsidiary forming part of the same economic entity is upheld by the Higher Commercial Court of Ukraine (the HCCU) on (...)

The Japan Fair Trade Commission issues a cease and desist order against two air conditioning manufacturers and imposes surcharges on them for bid-rigging in the field of the low temperature air conditioning system works (Narasaki Sangyo and Hokkaido Hitachi)
Japan Fair Trade Commission (Tokyo)
The JFTC Issued Cease and Desist Orders and Surcharge Payment Orders to Participants in Bidding for Low Temperature Air Conditioning System Works Ordered by JA in Hokkaido* The Japan Fair Trade Commission (JFTC) today issued the cease and desist orders and the surcharge payment orders to (...)

The amended Polish Competition Act enters into force, raising questions about guarantees and procedures in antitrust cases
Hansberry Tomkiel
Polish competition law Both EU and Polish competition law apply in Poland. The Polish Competition Act follows EU substantive principles and its Article 6 is modelled upon Article 101 of the TFEU. The Act, however, differs from EU competition law with respect to the liability of individuals and (...)

The Japan Fair Trade Commission pronounces a cease and desist order against a prefectural economic federation of agricultural cooperatives for bid-rigging in the country elevator works market (JA Fukui Keizairen)
Japan Fair Trade Commission (Tokyo)
The JFTC issued Cease and Desist Order to the JA Fukui Prefectural Economic Federation of Agricultural Cooperatives* The Japan Fair Trade Commission (JFTC) today issued cease and desist order to the JA Fukui Prefectural Economic Federation of Agricultural Cooperatives (hereinafter referred to (...)

A US Court of Appeals upholds the baseball industry’s historic antitrust exemption (City of San Jose)
Constantine Cannon (Washington)
Baseball Antitrust Exemption Extends 93-Year Winning Streak In Federal Courts* Although federal courts may consider baseball’s antitrust exemption to make about as much sense as the infield fly rule, last week’s decision by the U.S. Court of Appeals for the Ninth Circuit in City of San Jose v. (...)

A US Court of Appeal dismisses a claim against a standard setting association because of lack of evidence supporting an actionable conspiracy or monopoly (Abraham & Veneklasen / AQHA)
Sheppard Mullin (Los Angeles)
American Quarter Horse Association Rule Against Registration of Cloned Horses Found Not To Violate Sherman Act* A Matsushita “Quick Look” Analysis Demonstrates that While Plausible, No Evidence Supports An Actionable Conspiracy or Monopoly. Abraham & Veneklasen Joint Venture et al. v. Am. (...)

A US Court of Appeals leaves open the possibility that a single entity could conspire with its own members or sub-parts (Abraham & Veneklasen / AQHA)
Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
When Can an Organization Conspire with Itself?* The U.S. Court of Appeals for the Fifth Circuit last week reversed a jury verdict and rendered judgment for American Quarter Horse Association (AQHA) in a much-contested antitrust case about AQHA’s ban of cloned horses. The Fifth Circuit left open (...)

A US Court of Appeals decides on whether a "standard-setting" association should be considered as a single entity and dismisses the case for lack of evidence (Abraham & Veneklasen / AQHA)
Constantine Cannon (Washington)
Fifth Circuit Rejects Jury Verdict Of Quarter Horse Conspiracy, Finding Elite Animal Registries To Be A Horse Of A Different Color* A panel of the U.S. Court of Appeals for the Fifth Circuit has reversed a jury’s verdict that a horse breeding association illegally conspired with some of its (...)

The Japan Fair Trade Commission issues a cease and desist order against members of an association and imposes surcharges on them for having substantially restrained competition in the market of the concrete products (Abashiri Concrete Products Association)
Japan Fair Trade Commission (Tokyo)
The JFTC issued cease and desist order to Abashiri Concrete Products Association and surcharge payment orders to members of the Association* The Japan Fair Trade Commission (JFTC) today issued cease and desist order to Abashiri Concrete Products Association (hereinafter referred to as the (...)

The US Court of Appeals for the 7th Circuit reminds companies that they cannot forum shop (Motorola / AU Optronics)
Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
Seventh Circuit to Motorola: No Rehearing En Banc* On December 1, 2014, we wrote about the Seventh Circuit’s decision in Motorola Mobility LLC v. AU Optronics Corp., which affirmed dismissal of the vast majority of Motorola’s claims regarding LCD panels. Motorola filed a petition for rehearing (...)

The Düsseldorf Higher Regional Court upholds the decision of the Bundeskartellamt prohibiting the application of the «best price clause » in the online hotel booking sector (HRS / Expedia / Booking.com)
German Competition Authority
HRS’s ‘best price’ clauses violate German and European competition law - Düsseldorf Higher Regional Court confirms Bundeskartellamt’s prohibition decision* Today the Düsseldorf Higher Regional Court rejected HRS’s appeal against the Bundeskartellamt’s decision of 20 December 2013. In its decision the (...)

The Romanian Competition Council imposes fines on eight undertakings active on the taxi market for a tacit agreement aiming to fix the price for transportation (Pelicanul and Meridian)
Romanian Competition Council (Bucharest)
Fines on taxi market in Bucharest and Ilfov* The Competition Council has sanctioned with fines totaling 2,264,875 lei (505,021 Euro) 8 enterprises active on the taxi transportation market in Bucharest and Ilfov region for participation in a tacit agreement/ concerted practice to fix the tariff (...)

The Romanian Competition Council imposes fines on twenty-five undertakings for implementing price fixing agreements on the retail food market (Mega Image, Metro Cash&Carry, Real Hypermarket)
Romanian Competition Council (Bucharest)
The Competition Council has sanctioned 25 companies on the retail food market* The Competition Council has sanctioned 25 companies on the retail food market (4 retailers and 21 suppliers) with fines totaling 154,029,538 lei (approx. 35 million Euro). The sanctions were applied within the (...)

The Electronic Intellectual Property Center of China’s Ministry of Industry and Information Technology (MIIT) releases a draft “Template for Intellectual Property Policies in Industry Standardization Organizations”
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Hong Kong)
The Electronic Intellectual Property Center of China’s Ministry of Industry and Information Technology (MIIT) has released a draft “Template for Intellectual Property Policies in Industry Standardization Organizations” (the Draft Template), seeking public comments by January 30. The Draft Template (...)

The European Commission appeals a Belgian Court’s judgement in a cartel damages case (Otis, KONE, Schindler, ThyssenKrupp)
Hausfeld (London)
European Commission’s damages litigation illustrates challenges in domestic regimes pre-implementation of the Damages Directive* In January 2015 the European Commission announced its intention to appeal a judgment of the Belgian Commercial Court which dismissed the Commission’s claim for €6 (...)

The Italian Supreme Court rules on the scope of the jurisdiction clause favoring English courts (ISDA)
Gatti Pavesi Bianchi
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Jones Day (New York)
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Jones Day (Milano)
In January 2015, the Italian Supreme Court ("Supreme Court" or "Court") had the opportunity to have its say, for the second time, concerning the scope of the jurisdiction clause favoring English courts and contained in International Swaps and Derivatives Association ("ISDA") Master Agreements. (...)

Unilateral Practices

The Italian Competition Authority challenges anticompetitive measures in the Italian slots allocation tender process (Rotte Italia / Israele)
Macchi di Cellere Gangemi (Rome)
Following the Opinion S2138 of January, 30, 2015 (not yet published), the ICA is going to challenge in Court the Italian Civil Aviation Agency (ENAC) method of allocating air traffic rights from Italy to Israel due to hamper of competition and favor of the dominant player . The outcome may (...)

The federal state of Baden-Württemberg withdraws its remedies proposed to the German Competition Authority aiming at bringing the state’s timber marketing practices in line with competition law (Federal state of Baden-Württemberg)
German Competition Authority
Baden-Württemberg withdraws its commitments in round timber proceedings* Today the federal state of Baden-Württemberg withdrew the commitments it offered in the Bundeskartellamt proceedings initiated against it for its joint marketing of round timber. The commitments were aimed at bringing the (...)

The German Competition Authority imposes fines on a home appliances manufacturer for abuse of dominance (SodaStream)
German Competition Authority
Fine imposed on SodaStream for abusive practices* The Bundeskartellamt has imposed a fine of 225,000 euros against SodaStream GmbH, Limburg an der Lahn, on account of abusive practices. Due to the dominant position held by SodaStream (formerly Soda Club) other companies must also be given the (...)

The Russian Competition Authority sanctions an electricity provider having imposed disadvantageous contract conditions for abuse of dominance (IDGR)
Russian Federal Antimonopoly Service
Imposing disadvantageous conditions by “IDGR of the North-West” is unlawful* On 20 January 2015, the Arbitration Court of Moscow District pronounced legitimacy of the decision and determination of the Federal Antimonopoly Service (FAS Russia) with regard to “Interregional Distribution Grid (...)

The Bulgarian NCA states its opinion on a draft amending law that proposes introduction of rules on abuse of significant market power to the Bulgarian Protection of Competition Act
Braykov’s Legal Office
On 20 January 2015 with Decision No. 53/20.01.2015 the Bulgarian Commission for Protection of Competition (“CPC”) adopted its position on а draft amending law (No. 454-01-36 of 06.11.2014) that proposes changes of the Bulgarian Protection of Competition Act (“PCA”). As stated in the official motives (...)

The Russian Competition Authority concludes that a cement producer in Crimea has abused of its dominance (Stroiindoustria)
Russian Federal Antimonopoly Service
A cement producer in Crimea unreasonably increased prices* The Federal Antimonopoly Service (Crimea OFAS) found that “Stroiindoustria” Bakhchisarai Works” Shareholding Company violated the antimonopoly law in the part of abusing dominance (Clause 1 Part 1 Article 10 of the Federal Law “In (...)

The Kazakh Court condemns abuse of dominant position in the gasoline market (Helios)
Center for Development and Protection of Competition Policy
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Kazakhstan Association of Mining and Metallurgical Companies
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Center for Development and Protection of Competition Policy
Facts The regional division of the Antimonopoly body of Kazakhstan in Almaty city has recently finished investigation of violations of the antitrust law concerning «Helios» LLP. In accordance with the results of investigation into “Helios” LLP it was established that in August 2014 the Company (...)

The Higher Regional Court of Munich holds that the arbitration clause used by the International Skating Union referring all challenges to the Court of Arbitration of Sport was in breach of German competition law (Pechstein)
Hogan Lovells (Munich)
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Freshfields Bruckhaus Deringer (Berlin)
I. The Facts In 2009 Ms. Claudia Pechstein, a successful German speed skater, was banned by the International Skating Union (ISU) from all skating competitions for two years. Ms. Pechstein had tested positive in a doping control that was held during the ISU skating world cup in Norway. The (...)

The Slovenian Competition Protection Agency fines an incumbent gas importer and supplier for abuse of dominance by imposing prohibited contractual clauses on the market of gas supply to large industrial customers (Geoplin)
Slovenian Competition Authority (Ljubljana)
Geoplin abused its dominant position on the market of gas Supply by prohibited contractual clauses* Slovenian Competition Protection Agency (CPA) concluded that Geoplin, incumbent gas importer and supplier in the Republic of Slovenia, abused its dominant position on the market of gas supply to (...)

Mergers

The Romanian Competition Council clears a merger in the banking sector although the parties have realized the merger before clearance (Transilvania Bank / Volksbank Romania)
Romanian Competition Council (Bucharest)
Transilvania Bank can involve in the activity of Volksbank Romania* The Competition Council issued a derogation decision from the provisions of the Competition Law so that Transilvania Bank to involved in the activity of Volksbank Romania and Volksbank Services Romania before obtaining the (...)

A US State Court rejects a proposed consent judgement for under-addressing the competitive harm (Commonwealth / Partners Healthcare System)
Simpson Thacher & Bartlett (New York)
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New York State Executive Chamber
Massachusetts Court Unsettles Partners’ Hospital Merger By Nixing Consent Judgment* A Massachusetts state court on Thursday derailed the settlement of a challenge to the proposed merger of Partners Health System with rivals South Shore Health and Educational Corp. (South Shore Hospital) and (...)

The EU Commission conditionally approves deals in the pharmaceutical sector extending its analysis of pipeline pharmaceutical products (GSK / Novartis)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"Protecting the drugs of tomorrow : competition and innovation in healthcare"* In a nutshell : In Novartis/GSK Oncology, the Commission extended its analysis of pipeline pharmaceutical products beyond those that are in advanced stages of development (phase III), to fully assess the (...)

The Italian Administrative Supreme Court reinstates a decision issued by the Competition Authority prohibiting a joint venture in the in the gas distribution sector (Isontina Reti Gas)
Legance - Studio Legale Associato
By judgment No. 334 of 26 January 2015, the Italian Supreme Administrative Court (Consiglio di Stato) upheld two appeals brought by the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter “ICA”) and reinstated the ICA’s decision No. 24320 of 17 April 2013 (...)

The Canadian Supreme Court clarifies the notion of "prevention" of competition and revitalizes efficiencies defence in a merger case (Tervita)
Stikeman Elliott (Ottawa)
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Stikeman Elliott (Toronto)
Supreme Court clarifies "prevention" and revitalizes efficiencies defence in Tervita merger case* Canada’s Supreme Court of Canada issued its much-anticipated decision in the case of Tervita Corp. v. Canada Commissioner of Competition yesterday, upholding the Federal Court of Appeal’s (and the (...)

The Canadian Supreme Court considers for the first time the analytical framework for prevention of competition cases and the statutory efficiency defence in a very small merger case (Tervita)
Borden Ladner Gervais (Toronto)
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Gowling Lafleur Henderson (Toronto)
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Gowling Lafleur Henderson (Toronto)
Tiny Merger Will Have Major Implications for Merger Review in Canada* On Jan. 22, 2015, the Supreme Court of Canada released the long anticipated decision in Tervita Corp. v. Canada (Commissioner of Competition) in which it considered, for the first time, the analytical framework for (...)

The French Competition Authority opens ex officio proceedings to review the conditions under which a phone carrier complies with commitments (SFR / Numéricable)
French Competition Authority
Acquisition of SFR by Numericable.* The Autorité de la concurrence opens ex officio proceedings to review the conditions under which Numericable complies with its commitment to divest Outremer Telecom’s mobile telephony activities in La Réunion and Mayotte. On 30 October 2014, the Autorité de la (...)

The US FTC increases its 2015 jurisdictional and filing fee thresholds under the Hart‐Scott‐Rodino Antitrust Improvements Act
Paul Hastings (Washington)
The Federal Trade Commission (“FTC”) has announced its 2015 jurisdictional and filing fee thresholds under the Hart‐Scott‐Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). Due to an increase in gross national product over the past government fiscal year, the new thresholds have (...)

The Danish Competition and Consumer Authority requests criminal indictment for withholding in a merger assessment (METRO)
Gorrissen Federspiel (Copenhagen)
METRO Cash & Carry risks fine in Danish merger case* The Danish Competition and Consumer Authority (DCCA) has reported METRO Cash & Carry (METRO) to the State Prosecutor for Serious Economic and International Crime for failing to submit relevant information regarding a notified merger. (...)

The US FTC announces revised HSR thresholds for proposed mergers
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)
On January 15, 2015, the Federal Trade Commission (FTC) announced the revised thresholds for determining whether companies are required to notify federal antitrust authorities about a transaction under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). If a proposed (...)

The UK Competition Appeal Tribunal upholds that when a company acquires assets that can potentially be turned into a business activity, it can be considered as acquiring part of a business activity (Eurotunnel / SeaFrance / MyFerryLink)
Blackstone Chambers
Eurotunnel: when buying assets is a merger* When is an asset acquisition a merger? As the Eurotunnel litigation shows, the answer is not clear-cut. The background is the 2011 liquidation of the cross-channel ferry company SeaFrance. It could not be sold as a going concern, so instead there (...)

The Competition Appeal Tribunal upholds the merger decision of the UK Competition and Markets Authority in a maritime transport case (Eurotunnel / SeaFrance / MyFerryLink)
UK Competition and Markets Authority (CMA)
The CMA has welcomed today’s judgment by the Competition Appeal Tribunal (CAT) to uphold the CMA’s decision to bar Eurotunnel from running its MyFerryLink service out of Dover, to safeguard competition.* The CAT’s judgment dismissed an appeal by Eurotunnel and Société Coopérative de Production de (...)

State Aid

The European Commission closes an investigation and shows that less ex ante control will be followed by more ex post control of State aid schemes (Belgium)
College of Europe (Bruges)
The Perils of Ex Post Monitoring* Greater use of the new General Block Exemption Regulation means fewer State aid measures subject to notification and ex ante assessment by the Commission. However, less ex ante control will be followed by more ex post control. Member States should be prepared (...)

The EU General Court holds that different interventions that aim to finance the same restructuring plan constitute a single measure (SeaFrance)
College of Europe (Bruges)
i) SeaFrance* When a public authority makes an investment in a financially troubled company, the State aid bells should start ringing. However, it is now a well-established principle of the case law on State aid that even when a public authority invests in a troubled company, there is not (...)

The European Court of Justice rules that allowing London taxis to use bus lanes while prohibiting private hire vehicles from doing so does not appear to involve State aid (Eventech)
European Procurement Law Group
A criticism of the CJEU’s ruling that allowing London taxis to use bus lanes while prohibiting private hire vehicles from doing so does not appear to involve State aid (Eventech, C-518/13)* In its judgment of 14 January 2015 in Eventech (C-518/13, EU:C:2015:9), the Court of Justice of the EU (...)

The Finnish Supreme Administrative Court rules that deciding on recovery of unlawful State aid was required by the Commission decision regarding that aid and EU law even though the recipient of the aid was in restructuring proceedings (Osuuskunta Karjaportti)
University of Helsinki
The Finnish Supreme Administrative Court has decided on a complaint concerning the legality of decisions by a Finnish city (the city of Mikkeli) and, later, the Administrative Court of Kuopio . The decisions related to recovery of state aid which had been declared unlawful by the European (...)

The EU General Court explains that in the field of State aid it is not necessary to define precisely the relevant market in order to determine the existence of an advantage (Club Hotel Loutraki)
College of Europe (Bruges)
ii) Monopolies and the market economy investor principle* Several casinos in Greece appealed against Commission decision SA.33988 which found that an exclusive licence granted to OPAP, the Greek betting undertaking, to operate 35,000 video lottery terminals [exclusive rights 1] and the (...)

The EU General Court confirms the Commission decision holding that the Greek scheme of exclusive rights for lottery did not contain State Aid (Club Hotel Loutraki)
European University Institute (Florence)
In Brief: Case T-58/13, Club Hotel Loutraki AE and Others v Commission (judgment of 08.01.2015)* On Thursday the 8th January the GC dismissed all four pleas in the action for annulment of the Commission Decision finding that the exclusive rights granted to operate 35 000 Video Lottery (...)

The General Court of the EU allows a State scheme consisting on ’cross-overpayment’ of new and existing exclusive rights (Club Hotel Loutraki)
European Procurement Law Group
Exclusive rights, State aid and lottery: a winning ticket worth an extended monopoly? (T-58/13)* In its Judgment in Club Hotel Loutraki and Others v Commission, T-58/13, EU:T:2015:1, the General Court (GC) has confirmed the previous Decision of the European Commission and considered that (...)

Procedures

China’s National People’s Congress and Supreme People’s Court issue amendments and interpretations, respectively, leading to increases in public interest class action-type litigation
King & Wood Mallesons (Beijing)
Trends in Class Action-Type Public Interest Litigation in China* The framework for variants of class action-type litigation in the People’s Republic of China has been in place since the initial promulgation of the Civil Procedure Law of the P.R.C. (“CPL”) in 1991. The recently amended CPL (...)

The Spanish Supreme Court declares illegal the criteria applied by the Spanish Competition Authority to calculate competition fines (BCN Aduanas y Transportes)
Uria Menéndez (Brussels)
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Uria Menéndez (Madrid)
On 29 January 2015 the Spanish Supreme Court issued a landmark ruling clarifying the criteria to be applied by the Spanish Competition Authority (the “Authority”) when setting fines in national proceedings. This position has been confirmed in subsequent rulings. Since the entry into force in (...)

The General Court of the European Union authorizes the Commission to communicate information submitted in support of its leniency program, through the publication of a new and more detailed version of its penalty decision in the hydrogen peroxide cartel (Akzo Nobel, Eka Chemicals)
Norton Rose Fulbright (Paris)
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Norton Rose Fulbright (Paris)
On January 28, 2015, the General Court of the European Union (General Court) authorized the European Commission (Commission) to publish a new and more detailed version of a penalty decision, including information submitted pursuant to its leniency program. This solution should cause (...)

The English High Court reminds that the CMA has to treat with fairness and equal treatment all the parties but that a mistake should not be replicated where public funds were concerned (Gallaher)
Blackstone Chambers
Gallaher and Somerfield: will the CMA change its approach to settlement?* The latest episode in the tobacco litigation saga has seen Gallaher and Somerfield’s attempt to benefit from the collapse of the OFT’s case in November 2011 rejected by the High Court in R (Gallaher Group Limited and Ors) (...)

The EU Court of Justice holds that a competitor has standing to challenge national spectrum allocation decision implementing merger commitments (T-Mobile / Telekom-Control)
Van Bael & Bellis (Brussels)
On 22 January 2015, the Court of Justice of the European Union (“ECJ”) issued its judgment in Case C-282/13, T-Mobile Austria v. Telekom- Control-Kommission, concerning whether competitors have a right under Directive 2002/21 on a common regulatory framework for electronic communications networks (...)

The Austrian Supreme Court in competition matters confirms the legality of the publication of a merger decision (Ediktsdatei II)
European Court of Justice
By judgment of 21 January 2015 in Case 16 Ok 6/14i, the Austrian Supreme Court in competition matters (Oberster Gerichtshof als Rekursgericht in Kartellrechtssachen) rendered an important follow-up decision to its judgment of 27 January 2014 in Case 16 Ok 14/13 (annotated by Florian Neumayr in (...)

The EU General Court rules on the conditions for applying a provision allowing NCAs and the Commission to reject complaints if they "have already been dealt with" by another member of the ECN (Easyjet)
European Commission - DG COMP (Brussels)
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Magellan
Introduction Regulation 1/2003 introduced close forms of cooperation between the Commission and national competition authorities (hereinafter referred to as “NCAs”) in the framework of the European Competition Network (hereinafter referred to as "ECN"), with a view to ensuring the effective and (...)

The US Supreme Court allows appeal of terminated individual case from multi-district litigation proceeding (Gelboim / Bank of America)
Bona Law (San Diego)
US Supreme Court Allows Appeal of Terminated Individual Case from MDL Proceeding* The US Supreme Court just issued its decision in an antitrust case called Ellen Gelboim v. Bank of America Corporation. This case arises out of major multi-district litigation (an MDL) centered on allegations (...)

The US Supreme Court provides certainty to plaintiffs about the timing of their appeal in multidistrict litigations (Gelboim / Bank of America)
Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
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Patterson Belknap Webb & Tyler
Supreme Court Revives LIBOR Antitrust Appeal in Gelboim et al. v. Bank of America Corp. et al.* On January 21, 2015, the Supreme Court of the United States issued a highly anticipated decision in a LIBOR-based antitrust class action suit allowing a plaintiff to immediately take a direct appeal (...)

Regulatory

The Danish Competition Council recommends to change regulation of specialist practitioners in the Health sector
Danish Competition and Consumer Authority (Copenhagen)
The Danish Competition Council recommends new regulation of specialist practitioners* The Danish Competition Council (DCC) recommends that the Minister for Health changes the regulation concerning specialist practitioners in order to improve competition between the specialists and shorter (...)

The French Competition Authority publishes its opinion on four draft implementing decrees concerning the railway sector
French Competition Authority
The Autorité de la concurrence issues its opinion on four draft implementing decrees* The Autorité considers that some measures entail significant risks to the development of competition in the sector and issues several recommendations aimed in particular at strengthening the independence of (...)

Public sector

The Russian Competition Authority concludes that an ordering institution has restricted unlawfully the number of bidders (Rosimuschestvo )
Russian Federal Antimonopoly Service
Rosimuschestvo unlawfully restricted the number of bidders* On 21 January 2015, Moscow Arbitration Court supported the arguments of the Federal Antimonopoly Service (FAS Russia) in a case against the Federal State Property Management Agency (Rosimuschestvo). In September 2014, the (...)

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