July 2016

Anticompetitive practices

The EU Commission accepts commitments on geo-blocking practices restricting passive sales of audio-visual content (Paramount)
Fieldfisher (London)
Territorial restrictions in media content licensing – lessons from the Paramount commitments decision* The European Commission’s battle against territorial restrictions in media content licences continues on a number of fronts. One of those is an investigation launched in January 2014 into (...)

The Luxembourg Competition Council issues a decision stressing that a resale price maintenance practice constitutes a hard core restriction (SCAB)
NautaDutilh (Luxembourg)
Clarification of applicable criteria The Competition Council clarified the applicable criteria, which will undoubtedly help companies to (better) assess whether their practices constitute an illegal RPM practice. Such criteria are most welcome. Indeed, even though the European Commission has (...)

The EU Commission accepts commitments on geo-blocking practices restricting passive sales of audio-visual content (Paramount)
Van Bael & Bellis
On 26 July 2016, the Commission made legally binding the commitments offered by Paramount Pictures (“Paramount”) as it considered that they adequately addressed its concerns regarding specific contractual clauses restricting passive sales. In July 2015, the Commission had expressed concerns that (...)

The Hungarian Competition Authority finds for the first time that mere negotiations concerning a draft consortium agreement can qualify as a hardcore cartel (Alcufer)
Ernst & Young
On 26 July the Hungarian Competition Authority published its first ever cartel settlement decision which granted a 10% reduction from the fine to a settling party. The decision found that already the mere fact of negotiating with competitors a draft consortium agreement containing restrictive (...)

Advocate General Szpunar renders an opinion on publication of information about the functioning of an illegal cartel acquired via leniency statements (Evonik Degussa)
CDC Cartel Damage Claims
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CDC Cartel Damage Claims
Presenting public knowledge: Leniency programmes and cartels* By his opinion of 21 July 2016 in Case C-162/15 P, Evonik Degussa, Advocate General (AG) Maciej Szpunar of the EU Court of Justice confirmed that information on the functioning of a clandestine cartel, even when it originates from (...)

The EU Court of Justice issues preliminary ruling on liability for anti-competitive behaviour by employees and outside contractors (VM Remonts)
Hogan Lovells (Brussels)
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Hogan Lovells (Brussels)
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Liability for anti-competitive behaviour by your employees and outside contractors: when you are off the hook and when you are not* In its recent VM Remonts judgment, the Court of Justice of the EU has confirmed the strict liability of companies for the anti-competitive behaviour of their (...)

The EU Court of Justice clarifies when an undertaking can be held liable for the anticompetitive behaviour of an independent service provider (VM Remonts)
Van Bael & Bellis
In VM Remonts, the Court of Justice furst reiterated the established case-law on the liability of an undertaking for the conduct of an independent service provider: an undertaking may be held liable if the service provider acts under the direction or control of the undertaking concerned, and is (...)

The UK Competition and Markets Authority fines online retailers for using automated repricing software to implement an illegal cartel (Trod / GB Posters)
UK Competition and Markets Authority (CMA)
Online seller admits breaking competition law* An online seller has agreed to accept a fine after admitting using automated repricing software to implement an illegal cartel. Trod Limited has admitted agreeing with one of its competing online sellers, GB eye Limited (trading as ‘GB Posters’), (...)

The French Competition Authority fines suppliers and distributors of liquid fuel heating units for concluding horizontal and vertical anticompetitive agreements (PVG / Ligne Plus)
French Competition Authority
Liquid fuel backup heating units* The Autorité de la concurrence fines both PVG and Ligne Plus suppliers for anticompetitive agreement on wholesale prices and sharing of customer base (horizontal agreement). Besides, both suppliers are fined for having set distributors’ resale prices to the (...)

The EU Commission fines truck producers for cartel (MAN)
European Commission - DG COMP (Brussels)
Antitrust: Commission fines truck producers € 2.93 billion for participating in a cartel* The European Commission has found that MAN, Volvo/Renault, Daimler, Iveco, and DAF broke EU antitrust rules. These truck makers colluded for 14 years on truck pricing and on passing on the costs of (...)

The EU Commission imposes record-breaking fines of € 2.9 billion against truck producers (MAN, Volvo/Renault, Daimler, Iveco, DAF)
Van Bael & Bellis
On 19 July 2016, the Commission announced it had adopted a decision under the cartel settlement procedure fining truck producers a record breaking € 2.9 billion for their participation in a cartel on the market for medium and heavy trucks. The companies involved in the decision are MAN, (...)

The French Competition Authority launches a public consultation on its midpoint assessment concerning its investigation on the hearing aids sector
French Competition Authority
Hearing aids* As part of its investigation on the hearing aids sector, the Autorité de la concurrence launches a public consultation on its mid-point assessment today. The Autorité encourages the sector’s players to express their opinion on the competition issues identified. Interested actors (...)

The UK CAT awards competition damages in UK’s first judgment on a standalone action (Sainsbury’s / MasterCard)
Cleary Gottlieb Steen & Hamilton (Rome)
The Competition Appeal Tribunal awards competition damages in UK’s first judgment on a stand-alone action* On 14 July 2016, the UK Competition Appeal Tribunal (CAT) ordered MasterCard to pay Sainsbury’s £68.6m plus interest for infringing competition law in the setting of UK multilateral (...)

The UK CAT rules on passing-on defence (Sainsbury ’s Supermarket / Mastercard)
Blackstone Chambers
The passing-on “defence” after Sainsbury’s*The passing-on defence – ie. whether the damages suffered by a purchaser of a product which has been the subject of a cartel are reduced if he passes on the overcharge to his own customers – had, as Tristan Jones blogged a few years ago, been the subject of (...)

The EU General Court rules that a parent company cannot be held liable for aggravated circumstances of a subsidiary’s conduct prior to the date of its acquisition (Parker Hannifin)
Van Bael & Bellis
Under settled case law, a subsidiary and its parent company may be regarded as forming a single economic unit for the purpose of EU competition law. In such case, the Commission may be entitled to hold the parent company jointly and severally liable for the unlawful conduct of its subsidiary (...)

The Hellenic Competition Authority opens an ex-officio investigation into the luxury cosmetics market (L’Oréal)
Hellenic Competition Authority (Athens)
Ex-officio investigation into the luxury cosmetics market, for alleged infringements of competition rules.* Ex-officio investigation into the luxury cosmetics market, for alleged infringements of competition rules. The Grand Chamber of the HCC will convene on the 13th of October 2016 to (...)

The Latvian Competition Authority fines companies specialized in water infrastructure development service for bid rigging (Sistēmas)
Competition Council of Latvia
The Competition Council of Latvia Fines Three Companies for Collusive Bidding by Contractors* On 8 July 2016, the Competition Council (CC) of Latvia has fined three companies – SIA CO Sistēmas, SIA SAN B, and SIA Talsu spriegums – for rigging a public tenders. Companies were found to coordinate (...)

The Dutch Supreme Court accepts passing-on defense in private enforcement litigation (TenneT/ Gas-insulated Switchgear)
Van Bael & Bellis (Brussels)
On 8 July 2016, the Dutch Supreme Court (“the Court”) handed down a judgment upholding the availability of the passing-on defense in private enforcement litigation. The ruling resulted from a civil claim for damages brought by the electricity company TenneT against the gas-insulated switchgear (...)

The EU Court of Justice rules that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
Blackstone Chambers
License fees, invalid patents and Article 101 TFEU: Genentech v Hoechst and Sanofi Aventis* Consider an agreement under which a license fee is payable for use of a patented technology even if it transpires that the patent is invalid. Is such an agreement contrary to Article 101 TFEU? The answer (...)

The EU Court of Justice rules that payment of royalties under a licence agreement where the patent was held invalid may be compatible with Article 101 TFEU (Genentech / Hoechst)
Van Bael & Bellis
On 7 July 2016, the Court of Justice of the European Union (the “ECJ”) issued its judgment on a request for a preliminary ruling from the Paris Court of Appeal, which had enquired whether Article 101 TFEU precludes a licensee from paying royalties pursuant to a licensing agreement when the patent (...)

The EU Commission accepts remedies proposed by container liner shipping companies on price transparency (CMA CGM)
European Commission - DG COMP (Brussels)
Antitrust: Commission accepts commitments by container liner shipping companies on price transparency* The European Commission has adopted a decision that renders legally binding the commitments offered by fourteen container liner shipping companies. The commitments aim to increase price (...)

The French Competition Authority adopts a settlement decision concerning a case involving companies active in the distribution of consumer goods overseas (Henkel)
French Competition Authority
Exclusive distribution of consumer goods in overseas territories – Settlement* Within the framework of a settlement between all the parties, the Autorité de la concurrence fines Henkel and its wholesaler-importers in several overseas departments €600,000. In brief The Autorité de la (...)

The Frankfurt Court of Appeals submits preliminary reference on how to treat bans on sales via third-party internet platforms in selective distribution systems (Coty)
Sheppard Mullin (Brussels)
European Court of Justice to Rule on Legality of Online Sales Bans*An appeal court in Frankfurt has asked the European Court of Justiceto clarify the application of the competition rules to online sales. The Frankfurt court made its request in the context of a dispute between a leader in beauty (...)

Unilateral Practices

The EU Commission accepts remedies to alleviate concerns in film licensing contracts in cross-border pay-TV services (Paramount/Sky UK)
European Commission - DG COMP (Brussels)
Antitrust: Commission accepts commitments by Paramount on cross-border pay-TV services* The European Commission has made commitments offered by Paramount legally binding under EU antitrust rules. These address the Commission’s concerns regarding certain clauses in film licensing contracts for (...)

The Croatian Competition Authority refuses to open an infringement proceedings on the market of telecommunications equipment because the alleged infringer does not hold a dominant position (Ericsson NT)
Croatian Competition Agency
Ericsson Nikola Tesla: Initiative for abuse of dominance dismissed* The Croatian Competition Agency (CCA) dismissed the initiative for the initiation of the infringement proceedings for the establishment of abuse of a dominant position against the undertaking Ericsson Nikola Tesla (Ericsson (...)

The EU Commission accepts remedies proposed by companies active on the credit default swaps market (ISDA / Markit)
European Commission - DG COMP (Brussels)
Antitrust: Commission accepts commitments by ISDA and Markit on credit default swaps* The European Commission has adopted a decision that renders legally binding commitments to licence inputs for credit default swaps, offered separately by the International Swaps and Derivatives Association (...)

The Turkish Competition Board investigates electricity suppliers and distributors (Akdeniz EDAS / CLK / Ak Den)
Erdem & Erdem
The Competition Board (“Board”) in its decision dated 19.07.2016 and numbered 116-24/407-M (“Investigation”) has decided to open an investigation against electricity supplier and distributor companies, Akdeniz Elektrik Dağıtım A.Ş., CLK Akdeniz Elektrik Perakende Satış A.Ş. and Ak Den Enerji Dağıtım (...)

The EU Commission takes further steps concerning the case involving comparison shopping services and advertising-related practices (Google AdSens)
European Commission - DG COMP (Brussels)
Antitrust: Commission takes further steps in investigations alleging Google’s comparison shopping and advertising-related practices breach EU rules* The Commission has sent two Statements of Objections to Google. The Commission has reinforced, in a supplementary Statement of Objections, its (...)

The French Competition starts, in collaboration with 9 National Competition Authorities and the EU Commission, a survey among hoteliers to assess the remedies implemented in the hotel booking sector (Booking.com)
French Competition Authority
Hotel booking platforms* The Autorité de la concurrence launches, in collaboration with 9 national competition authorities and the European Commission, a survey among hoteliers in order to assess the effects of the remedies implemented in Europe in the hotel booking platforms sector. (...)

Mergers

The German Competition Authority informs the public that manufacturers of glass fibre nonwovens withdraw their merger notification (Ahlstrom / Owens Corning)
German Competition Authority
Manufacturers of glass fibre nonwovens withdraw merger notification* The Bundeskartellamt confirms that the notification of the planned merger between European Owens Corning Fiberglas Sprl, Watermael-Boitsfort, Belgium (’Owens Corning’) and Ahlstrom Glassfibre Oy, Kotka, Finland (’Ahlstrom’) was (...)

The German Competition Authority issues its preliminary assessment concerning a merger in the food retail market (Rewe / Coop)
German Competition Authority
Bundeskartellamt issues preliminary assessment of the planned Rewe/Coop merger* In response to enquiries the Bundeskartellamt confirms that on 25.07.2016 it sent the parties concerned in the Rewe/Coop merger control proceedings its draft decision in the matter. In addition to the parties to (...)

The US FTC requires divestitures in many local markets (Ahold / Delhaize)
Dechert (Washington)
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Dechert (Washington)
FTC Requires Divestitures in Ahold/Delhaize of 81 Stores and Gives Upfront Buyers More Time to Complete Acquisitions; Continues Focus on "Traditional Supermarket" Competition Key Points: The U.S. Federal Trade Commission (FTC) required divestitures in many local markets in Ahold/Delhaize (...)

The European Commission conditionally clears an acquisition in market for satellite launch services (Arianespace / ASL)
Van Bael & Bellis (Brussels)
On 20 July 2016, the European Commission conditionally cleared the acquisition of Arianespace by Airbus Safran Launchers (“ASL”). Arianespace is a French company offering satellite launch services to private and institutional satellite operators. ASL is a 50/50 joint venture controlled by Airbus (...)

The EU Commission clears a merger, subject to remedies, on the markets for satellites and launch services (Arianespace / ASL)
European Commission - DG COMP (Brussels)
Mergers: Commission approves acquisition of Arianespace by ASL, subject to conditions* Following an in-depth review, the European Commission has approved under the EU Merger Regulation, the acquisition of Arianespace by Airbus Safran Launchers (ASL), a joint venture between Airbus and Safran. (...)

The US Department of Justice conditionally approves merger in the beer sector (AB InBev / SABMiller)
Constantine Cannon (New York)
Department of Justice Moves Mega Beer Merger One Round Closer*U.S. Department of Justice (“DOJ”) antitrust officials have approved Anheuser-Busch InBev’s (“ABI”) $107 billion takeover of SABMiller, on condition that ABI divest substantial assets, agree to prohibitions of certain distribution (...)

The French Competition Authority holds that the relevant market for retail distribution of electronic products comprises both physical and online stores (Fnac / Darty)
Cleary Gottlieb Steen & Hamilton (Rome)
The French Competition Authority holds that the relevant market for retail distribution of electric product comprises both physical and online stores* On 18 July 2016, the French Competition Authority (FCA or the Authority) cleared the acquisition of Darty by the Fnac group, a move which will (...)

The French Competition Authority clears a merger, subject to remedies, on the market of retail of cultural and electronic products (Fnac / Darty)
French Competition Authority
Retailing of "brown" and "grey" products* The Autorité de la concurrence clears, subject to the divestiture of 6 stores in Paris and the Parisian region, the acquisition of the Darty company by the Fnac group On 17 February 2016, the Fnac group notified its project to take over Darty to the (...)

The UK Competition Authority opens an in-depth inquiry concerning a merger on the mental healthcare services market (Acadia / Priory)
UK Competition and Markets Authority (CMA)
Acadia/Priory merger faces in-depth investigation* Acadia’s completed acquisition of Priory faces being referred for an in-depth investigation by the CMA. Acadia Healthcare Company, Inc (Acadia) through its UK subsidiary Partnerships in Care, and Priory Group No.1 Limited (Priory) overlap in (...)

The Higher Regional Court of Düsseldorf suspends ministerial authorisation of an acquisition (Kaiser’s Tengelmann / EDEKA)
Van Bael & Bellis (Brussels)
In a decision of 12 July 2016, the Higher Regional Court of Düsseldorf suspended the ministerial authorisation of the acquisition of the supermarket Kaiser’s Tengelmann by its competitor EDEKA. The German Minister of Economic Affairs, Sigmar Gabriel, issued a ministerial authorisation in March (...)

The US Department of Justice fines an activist investor for a record $11 million for violations of the HSR Act (ValueAct)
Simpson Thacher & Bartlett (New York)
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Office of Attorney General
On July 12, 2016, the US Department of Justice (“DOJ”) announced that activist investor ValueAct Capital agreed to pay a record $11 million fine and also agreed to injunctive relief to settle allegations that ValueAct violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § (...)

The EU Commission clears a merger subject to remedies in the market for the production and supply of plastic bumpers (Plastic Omnium / Faurecia)
European Commission - DG COMP (Brussels)
Mergers: Commission clears acquisition of an automotive component business of Faurecia by Plastic Omnium, subject to conditions* The Commission has cleared under the EU Merger Regulation the proposed acquisition of the automotive plastic exterior component business of Faurecia by Compagnie (...)

State Aid

The EU Commission orders recovery of State aid and examines the definition of research in the context of aids granted for R&D purposes (ValDeal / CEATF)
College of Europe (Bruges)
State aid for R&D: What is research?* Introduction The purpose of research is to discover something new. But what is often difficult to define for public authorities that wish to stimulate more research activities is how new must be the outcome of research. It is rare that research (...)

The EU Court of Justice considers the compatibility of the bail-in provisions in the 2013 banking communication with the principle of proportionality (Kotnik)
Intesa Sanpaolo (Milan)
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Intesa Sanpaolo (Milan)
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Intesa Sanpaolo (Milan)
Bank rescue in the European Union. From bail-out to bail-in* States have traditionally faced banking crisis through the so-called bail-out tool: public resources have been used for a long time in order to rescue banks, putting the burden on public finance, thus on taxpayers. Actually, this is (...)

The EU Court of Justice considers the general presumption of confidentiality and the overriding public interest (Sea Handling)
University of Milan
Right of access and State aid procedures: a look at the general presumption of confidentiality and the overriding public interest in Case C-271/15 Sea Handling v Commission* A look at the Court’s ruling of 14 July 2016 on the applicability of the general presumption of confidentiality - and the (...)

The EU General Court rules on the concept of advantage in relation to the costs borne by competitors (Germany)
College of Europe (Bruges)
Compensation for the extra costs imposed by law* Introduction On 14 July 2016, the General Court rendered its judgment in case T 143/12, Germany v Commission. The outcome was a victory for Germany as the General Court annulled Commission decision 2012/636 which had ordered Germany to recover (...)

Procedures

The Spanish Audiencia Nacional holds that mobile phones are not safe from dawn raid scrutiny (Nougat cartel)
Hogan Lovells (Brussels)
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Hogan Lovells (Brussels)
Employee’s mobile phones not safe from dawn raid scrutiny, Spanish court finds* On 7 April 2016, the CNMC (Spain’s National Authority for Markets and Competition) Council imposed fines totalling €6.12 million on six Spanish nougat (“turrón”) producers for agreeing to share the market of the main (...)

The England and Wales Court of Appeal rules on fairness and equal treatment by national competition authorities (Gallaher)
Blackstone Chambers
Can several wrongs make a right? Gallaher v CMA in the Court of Appeal*When a public body makes a mistake in its treatment of one person, can fairness require it to treat other people in the same way – even if that means amplifying the effects of the mistake?According to the Court of Appeal in (...)

The US Court of Appeal for the Ninth Circuit overturns judgment of the District Court which rejected a class action on the basis of lack of evidence on potential substitutes in geographic markets (Sutter Health)
Constantine Cannon (New York)
Health Plan Members Convince Ninth Circuit to Revive Antitrust Class Action Against Dominant Northern California Healthcare Provider Sutter Health*An antitrust class action challenging the dominance of healthcare provider Sutter Health in Northern California received a new lease on life Friday (...)

The Administrative Court of Düsseldorf rules on right to access cartel damages proceeding file before labour court (Local transportation company)
Van Bael & Bellis (Brussels)
In a judgment of 7 July 2016, the Administrative Court Düsseldorf (the “Court”) annulled the prior decision of the President of the Higher Labour Court Düsseldorf (the “President”) who had denied a potential cartel victim access to the file of a cartel damages proceeding before the Higher Labour (...)

The UK Patents Court defers hearing on competition law issues in a patent litigation until infringement of patents is established (Illumina / Premiatha)
Fieldfisher
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Fieldfisher (London)
Illumina, Inc v Premiatha Health PLC [2016] EWHC 1726 (Pat)*In July 2015 the Court of Justice of the European Union (CJEU) handed down its judgment in Huawei Technologies Co. Ltd v ZTE Corp., ZTE Deutschland GmbH (Case C-170/13). In that Judgment the CJEU ruled that in proceedings for an (...)

The German Federal Ministry of Economics proposes a transaction value threshold to require notification of high value deals even with no / de minimis sales in Germany
Baker McKenzie (Brussels)
Germany proposes transaction value threshold to require notification of high value deals even with no / de minimis sales in Germany* With little fanfare, on Friday, 1 July 2016, among a raft of other amendments to the Act against Restraint of Competition (‘ARC’; 9th amendment), the Federal (...)

The German Federal Ministry of Economic Affairs publishes draft law implementing EU Damages Directive
Hausfeld (Berlin)
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Hausfeld (Berlin)
Draft German law implementing EU Damages Directive* On Friday, 1 July 2016, the German Federal Ministry of Economic Affairs finally published its draft law implementing the European Union directive governing actions for damages for infringements of competition rules (“Damages Directive”). The (...)

Public sector

The French Supreme Court holds that a jurisdiction or arbitration clause cannot be used by foreign undertakings to discard the application of French provisions on unfair trade practices when the action is brought by the Minister of the economy (Apple)
French Competition Authority
In a recent decision, the French Supreme Court had to decide whether or not a jurisdiction clause or an arbitration clause could be used by foreign companies to discard the application of French law enforcement concerning unfair trade practices, e.g. Article L. 442-6 of the Commercial Code. (...)

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