June 2005

Foreword Les politiques de clémence en Europe

NB 1: Leniency programs are now a well established and efficient policies through Europe, both at the EU level and at the national levels. In this sery of 5 articles, EU and national policy officers, academics and practionners give various points of view on the use of lenieny programs in the EU network context and on same international law issues. Articles in French. NB 2: This article was (...)

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University Paris II Panthéon‑Assas
University Panthéon-Sorbonne (Paris)
European Commission - DG COMP (Brussels)
Jones Day (Brussels)
Jones Day (Brussels)
Université Aix-Marseille
University Panthéon-Sorbonne (Paris)
Transport For London (TFL)

Anticompetitive practices

A Belgian Court holds that a provision requesting feedback on resale prices does not constitute resale price maintenance (IDH Diamonds / Billiton Diamonds)
Leuven University
Description of the impugned case This case involved two undertakings active in the diamond industry, IDH Diamonds NV (‘IDH’) and BHP Billiton Diamonds Belgium NV (‘BHP’). In 1997 they had entered into an agreement under which IDH would become a ‘regular client’ of BHP, whose customers for diamonds (...)

The Hungarian Competition Authority reduces a fine imposed to an undertaking in the framework of a leniency programme (Kemira, Tessenderlo)
Université Catholique de Louvain
The Competition Council of the Hungarian Competition Authority recently established that a number of undertakings which make up the Finnish group Kemira and the Belgian group Tessanderlo took part in an egregious violation of the Hungarian competition rules which took the form of a (...)

The German Federal Court of Justice rules on the standard of proof for the existence of a revenue surplus from a cartel agreement (Transportbeton Berlin)
University College London
On June 28, 2005, the German Federal Court of Justice (FCJ) clarified the standard of proof in cases in which the state seeks to disgorge the revenue surplus (“additional proceeds”) from a cartel. I. Facts of the case Between 1995 and 1998, nearly all producers of ready-mixed concrete in the (...)

A Dutch Court set aside the decision of the NCA for failing to demonstrate that the alleged parallel behaviour of the appellants in the motor fuel sector amounted to horizontal agreements or concerted practices (’Texaco gas stations’)
Government of Albania
The appellants, [X], [Y], [Z] and [W] appealed to the District Court of Rotterdam against Decision No. 03/2527 taken by the Dutch Competition Authority (DCA) on 25 June 2002. The decision was taken under Section 6 paragraph 1 of the Dutch Competition Law Act 1998 (DCLA) which prohibits (...)

The Spanish Competition Court holds that car manufacturers with a market share below 30% may freely choose the members of their distribution or repair and maintenance network (Citröen)
Hogan Lovells (Madrid)
Background The Agrupación de Agentes y Servicios Oficiales Citröen de Cataluña (hereinafter, “the ASOCC”), an association of the repair shops integrated in the repair and maintenance services’ network of Citröen in the region of Cataluña, lodged on 1 October 2003 a complaint before the Spanish (...)

The Court of Appeal of Brussels confirms the conformity with Art. 81 EC of an exclusive beverages supply agreement (Emond / Brasserie Haacht)
BDGS Associés (Paris)
In a decision dated of 23 June 2005, the Court of Appeal of Brussels confirmed the conformity of a supply agreement of beverages with the Article 81 of the EC treaty. The facts leading to this decision were the following. On 24 June 1993, M. Emond signed a supply agreement with the brewery (...)

The Brussels Court of appeal issues a preliminary ruling on the successive application of EC Reg. N° 1984/83 and N° 2790/1999 on the application of Art. 81.3 EC to vertical agreements and concerted practices and rules on the de minimis doctrine (Brasserie Haacht)
Sheppard Mullin (Brussels)
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Notre Europe
This is a judgment of the Brussels Court of Appeal responding to a request for a preliminary ruling from the Court d’appel de Liège ("Court of Appeal of Liège"), on the application of Article 81 EC and vertical block exemption regulations to a beer supply agreement setting up an exclusive (...)

The French Competition Authority sanctions a company and its distribution network for anticompetitive agreements and abuse of dominant position in the dog food market (Royal Canin)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Anticompetitive agreements and abuse of dominant position in the dog food market: The Conseil de la concurrence fines Royal Canin and distribution network a total of 5,000,000 Euros.* Following a referral (...)

The UK Office of Fair Trading issues a draft opinion indicating that exclusive newspaper distribution arrangements granting absolute territorial protection are compatible with UK and EC competition law ("Distribution arrangements between newspaper and magazine publishers and wholesalers")
Freshfields Bruckhaus Deringer (London)
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King’s College (London)
In order to ensure consistency with the EC regime, the UK system for notification of agreements under the Competition Act 1998 (the CA) was abolished on 1 May 2004. The OFT does not therefore accept notifications for decision or guidance under the Act. The OFT, however, continues to offer a (...)

The Hungarian Competition Office imposes a € 5.6 M fine in software public tenders and refuses to apply the de minimis doctrine (SAP)
lakatos, koves and partners
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lakatos, koves and partners
In 2004, the Hungarian Competition Office (HCO) launched proceedings against SAP Hungary Kft. (SAP), International Business Machines Magyarország Kft. (IBM), International System House Kft. (ISH), Synergon Informatikai Rendszereket Tervező és Kivitelező Rt. (Synergon) and ORACLE Hungary Kft. (...)

The Irish Competition Authority calls for further amendments to the Intoxicating Liquor Bill 2005 in order to enhance competition between Licenced Premises
London School of Economics
Irish National Competition Authority, Press Release, 13 June, 2005 The Irish National Competition Authority (henceforth “NCA”) took the opportunity in June, 2005 to comment on the proposed reform of the liquor licensing regime to be introduced by the Intoxicating Liquor Bill 2005 (hereinafter (...)

A German Court finds that a horizontal cooperation agreement between small and medium-sized undertakings does not affect trade between Member States under Art. 81 EC as the agreement has no “appreciable” impact on interstate trade (Filigranbetondecken)
Hengeler Mueller (Dusseldorf)
I. Background Two small and medium-sized producers of filigree concrete ceilings and other pre-fabricated concrete parts intended to enter into a cartel agreement regarding a cooperation in respect of their sales and distribution activities, including a joint data information system, common (...)

The French Competition Authority sanctions 11 building and civil engineering companies for having entered into an anticompetitive agreement (Public works in the Meuse département)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Public works in the Meuse département: The Conseil de la concurrence finds 11 building and civil engineering companies guilty of entering into an anticompetitive agreement and imposes fines totalling 7 million (...)

The Hungarian Competition Council exempts a 9 year exclusive services agreement with the incumbent on the basis of Art. 81.3 EC in the IT services market (Magyar Telekom)
Dentons (Paris)
Facts of the case The Rába Group (the "Group") is one of Hungary’s largest vehicle manufacturers, which produces undercarriages, spare parts and commercial vehicles, mainly for export markets (60% of its production is exported). The Rába Group is one of the biggest undercarriage constructors in (...)

The Hungarian Competition Council clears a 9 years’ exclusive agreement on the basis of Art. 81.3 EC (Rába/Integris)
Smartflats
,
Liège University - IEJE
Rába is a Hungarian vehicle manufacturers specialized in the spare parts business. The firm mostly exports products for the supply of companies such as Daimler Chrysler, Caterpillar, Suzuki etc. Rába is one of the most important independent undercarriage constructors in the world. Integris - (...)

A French Court condemns an undertaking to repair the damage suffered by an authorised dealer of a selective distribution network (LCJ Diffusion / La Roche Posay)
Sheppard Mullin (Brussels)
,
Notre Europe
This is a judgment of the Court of Appeal of Paris applying Article 81 EC which has been transmitted to the European Commission by virtue of Article 15(2) of Regulation n° 1/2003 and has been published on DG Competition’s website (See also on this case, C. Mai-Doremus and J. Philippe, The Paris (...)

The Paris Court of Appeal holds that a selective distribution system is compatible with EC Reg. n° 2790/1999 (LCJ Diffusion/La Roche Posay & Cosmétique Active France)
Freshfields Bruckhaus Deringer (Paris)
,
Eversheds Sutherland (Paris)
La Roche Posay is specialised in the manufacturing and marketing of dermo-cosmetics products and has established a selective distribution system throughout the European Economic Area (EEA). La Roche Posay and its distributor in France, Cosmétique Active France, brought an action against LCJ (...)

Unilateral Practices

The French Competition Authority sanctions the dominant operator of the market for street advertising furniture for having broken injunctions (Decaux Group)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The market for street advertising furniture: The Conseil de la concurrence fines the Decaux Group 10 million Euros for breach of injunctions.* Context of the case The Conseil de la concurrence has penalized (...)

The German Federal Court of Justice holds that the EC motor vehicles block exemption does not create any obligation to admit a plaintiff as an authorized repairer (Qualitative Selektion)
Fresenius Medical Care (Frankfurt)
Background The defendant, a manufacturer of motor vehicles, terminated its service agreement with the plaintiff, an authorized provider of repair and maintenance services, by contractual notice effective June 30, 2002. The defendant intended to change its criteria for selecting authorized (...)

The German Federal Court of Justice clarifies that access to an essential facility does not require a dominant position in the up- or downstream market in the electricity sector (Arealnetze)
University College London
On June 28, 2005, the German Federal Court of Justice (FCJ) clarified that the so called “essential facility clause” of Sec. 19(4) n° 4 of the German Act against Restraints of Competition (ARC) requires dominance only in the market for the essential facility itself. Contrary to the view of some (...)

The Court of Appeal of Paris confirms absence of predatory pricing on the basis of ECJ case law (VIIV/Régie départementale des passages d’eau de la Vendée)
Freshfields Bruckhaus Deringer (Paris)
,
Eversheds Sutherland (Paris)
The “Régie départementale des passages d’eau de la Vendée” (“RDPEV”) is entrusted with the operation of a public service : it operates regular ferry services (both for passengers and for cargo and vehicles) between the mainland and l’Île d’Yeu (an island off the Atlantic coast of France) all year round. (...)

The Belgian Supreme Court adopts an in concreto approach to the definition of the relevant market product for the provision of directory services in the telecommunications sector (Kapitol / Telekom Austria)
Sheppard Mullin (Brussels)
,
Hogan Lovells (Brussels)
Following a request by Kapitol, a Belgian provider of phone directories, based on Directive 98/10/EC of the European Parliament and of the Council, of 26 February 1998, on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a (...)

The European Commission adopts a commitment decision preventing a leading soft drinks manufacturer from entering into exclusive supply arrangements and from practicing growth and target rebates or from leveraging market power between various product categories (Coca Cola)
European Commission - DG COMP (Brussels)
,
European Commission - DG COMP (Brussels)
"Coca-Cola: Europe-wide remedies in fizzy drinks"* 1. Introduction On 22 June 2005 the Commission adopted a commitment decision based on Article 9 of Regulation 1/2003 addressed to The Coca-Cola Company (’TCCC’) and three of its major bottlers (all together: ’Coca-Cola’), making the commitments (...)

The Danish Competition Council exempts an agreement between cinemas and advertisers (Dansk Reklame Film)
Smartflats
,
Liège University - IEJE
Dansk Reklame Film (hereinafter referred to as ““DRF”) is an intermediary between Cinemas and advertising agencies whose activities consist in entering into (i) agreements with advisers/agencies concerning the display of screen advertising in cinemas (ii) agreements with cinemas on hire of the (...)

The Danish Competition Authority finds a company guilty of an abuse of dominance regarding its rebates practices on the basis of Art. 82 EC (DBC Medier)
Smartflats
,
Liège University - IEJE
Danish Competition Council, DBC Medier Decision, 22 June 2005 On 22 June 2005, the Danish Competition Council found DBC Medier, a company selling books, music, films and computer programmes, guilty of an abuse of dominance contrary to Article 82 EC. With exclusive rights on a large number of (...)

The Danish Competition Authority launches an inquiry on possible anti-competitive effects of the exclusive right conferred for port harbour services (Copenhagen Malmö Port’s)
McDermott Will & Emery (Brussels)
Against the backdrop of a string of analyses of the abovementioned Act, the Danish competition authority carried out an examination of the competitive effects of Copenhagen Malmö Port’s exclusive right to offer harbour services in Copenhagen Free Port. The Danish competition authority at the same (...)

The French Competition Authority accepts commitments to address competition concerns in the equine reproduction market (Haras nationaux)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence has accepted the commitments proposed by the "Haras Nationaux" and decided to close the legal proceedings. The “Haras Nationaux” have undertaken to introduce analytical accounting (...)

The European Commission imposes a € 60 M fine against two companies in the pharmaceutical sector for abuse of a dominant position (AstraZeneca)
Danish Competition and Consumer Authority (Copenhagen)
,
European Commission - DG COMP (Brussels)
"AstraZeneca: the first abuse case in the pharmaceutical sector"* 1. Introduction On 15 June 2005 the Commission adopted a decision (‘Decision’) fining the Swedish company AstraZeneca AB and the UK company Astra-Zeneca Plc (together ‘AZ‘) 60 million euros due to their infringements of Article 82 (...)

The Italian Competition Authority adopts an interim measure ordering that a firm, dominant in the market for the production of a certain antibiotic, must grant a license for the production of a key ingredient of the antibiotic (Merck - Carbapenem)
Shearman & Sterling (Rome)
Merck manufactures, and holds the patent of, a key active ingredient necessary for the production of an antibiotic (carbapenem) used in the treatment of particular types of infection. Merck’s patent rights have expired in most European countries and outside the EU (except the US) but, due to the (...)

The Italian Competition Authority launches an investigation in the pharmaceutical sector for generics under Art. 82 EC (Merck-Principi attivi, Imipenem Cilastatina)
Studio Legale DDPV
,
Studio Legale
The “Autorità Garante della Concurrenza e del Mercato” - the Italian national competition authority (the “Authority”) - recently started an investigation in the pharmaceutical sector under article 82 of the EC Treaty. The issue is to determine whether Merck is in a dominant position in the market (...)

A US District Court holds that a drug manufacturer rebates to pharmacy benefits managers (PBM) for exclusive formulary listing do not violate the Sherman Act (Wyeth, J.B.D.L)
Jones Day (Washington)
A U.S. District Court in Ohio granted summary judgment for defendants in a class action suit alleging that a drug manufacturer’s rebates to pharmacy benefit managers in order to obtain an exclusive listing in the PBMs’ drug formulary violated Section 1 of the Sherman Act. The plaintiffs, (...)

The Czech Competition Authority states that refusal of access to a facility amounts to abuse of a dominant position even if the conditions of the essential facilities doctrine are not met (ČSAD Liberec)
Government of the Czech Republic
On 6 June 2005 the Czech Republic’s Office for the Protection of Competition (“the Office”) issued a decision whereby it established that a bus service and station operator in a Czech city abused its dominant position when it refused to allow a competing carrier to use its bus station for (...)

Mergers

The Italian Competition Authority, after having opposed to a so-called merger transaction under Art. 81 EC, imposes substantial modification to the original acquisition agreement and finally clears the transaction as a merger (Anonima Petroli Italiana - ENI)
London School of Economics
API Anonima Petroli Italiana (“API”) is an undertaking active in the distribution, marketing and refinement of oil products. ENI is active mainly in the oil and natural gas sectors. IP, a subsidiary owned at 100% by ENI, is active in the marketing of oil products. On 1 June 2005, API and ENI (...)

The Dutch Competition Authority clears merger between a supplier of pay television and an operator of television networks (Chellomedia Programming, Canal+)
De Nederlandsche Bank (DNB)
,
Smeets Van Empel advocaten (Amsterdam)
1. Introduction On 15 December 2004 the Dutch Competition Authority (Nederlandse Mededingingsautoriteit,hereinafter "NMa") received a notification for a merger between UPC Programming B.V. ("UPC", now Chellomedia Programming B.V.) and Canal+ N.V. ("Canal+"). According to the proposed merger (...)

The European Commission conditionally clears a merger in the wines and spirits industry (Pernod Ricard/Allied Domecq)
,
European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2005"* The European Commission has cleared under the EU Merger Regulation the proposed acquisition of Allied Domecq plc by Pernod Ricard SA. The Commission’s clearance is conditional on the sale by Pernod Ricard of the Scotch whisky brands (...)

The Norwegian Competition Authority approved a merger in the provision of public key infrastructure services, subject to remedies (BBS/ZebSign)
Ernst & Young
The operation On 22 February 2005, the Norwegian Competition Authority (NCA) was informed that the entire share capital of ZebSign AS had been acquired by BBS AS. BBS AS is a supplier of electronic identification (ID) services, payment and information solutions. ZebSign is a supplier of (...)

The European Commission refers to the German FCO the examination of a concentration in the asphalt manufacturing industry (Strabag/Walter Bau)
,
European Commission - DG COMP (Brussels)
"Mergers — Main developments between 1 May and 31 August 2005"* The Austrian company Bauholding Strabag SE (Strabag) notified the Commission of its intention to acquire parts of the bankrupt German construction company Walter Bau-AG (Walter Bau). In May 2005 Germany’s Federal Cartel Office (...)

The Italian Competition Authority cleared a merger in the baby milk sector subject to ceasing to use certain brands and ensuring product availability in the supermarkets (Koninklijke Numico/Mellin)
,
Chiomenti (Rome)
The operation The transaction will result in the acquisition of sole control over Mellin by way of shares purchase. After examining the operation, the ICA concluded that the proposed operation might have worsened the already weak competition in the market for baby milk. In the ICA’s view, the (...)

The Italian Competition Authority clears in phase II the merger between the two main baby milk producers subject to remedies, including wholesale prices reduction (Koninklijke Numico / Mellin)
Ashurst
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Legance - Studio Legale Associato
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Banca d’Italia (Italian Central Bank)
Background By decision of 15 June 2005, the Italian Competition Authority (Autorità garante della concorrenza e del mercato) cleared the acquisition by Koninklijke Numico N.V. (Numico) of Mellin S.p.A. (Mellin). The concentration affected the baby milk sector which the Authority’s investigations (...)

An Estonian Court of appeal confirms the right of third parties to challenge merger decisions, but upheld the Competition Authority’s merger clearance concerning the acquisition of a company controlling a chain of pharmacies by an Estonian dominant wholesaler of pharmaceuticals (Parimex Invest/Magnum Medical)
COBALT Legal
On 14 June 2005, the Tallinn Circuit Court (a court of appeal) issued a judgment upholding the Estonian Competition Authority’s (ECA) merger clearance concerning the acquisition of OÜ Parimex Invest, a company controlling a chain of pharmacies, by AS Magnum Medical, an Estonian dominant (...)

The Romanian Competition Council cleared a merger in the sector of harbour operating services with remedy including divestiture (Chimpex/Azomures)
Fruth Oprisan
The operation SC AZOMURES SA Tg.Mures, manufacturer of fertilisers proposed acquiring 74.372% of the share capital of CHIMPEX SA Constanta , company which performs harbour operating services for fertilisers. The market(s) The relevant market has been assessed as the market of harbour (...)

The US FTC proposes conditional consent order approving an acquisition of the voting securities of a major petroleum explorer and marketer (Unocal / Chevron)
Sheppard Mullin (Los Angeles)
FTC Approves Chevron’s Acquisition Of Unocal On Condition Of Release Of Patent Rights To CARB Reformulated Gasoline* The Federal Trade Commission has proposed consent orders that will approve Chevron’s acquisition of the voting securities of Unocal, which will then merge into a Chevron (...)

The Dutch Competition Authority consults four external research firms to define the geographical market in a second phase hospital merger (Ziekenhuis Hilversum/Ziekenhuis Gooi-Noord)
European University Institute (Florence)
Introduction Geographical market definition is central in this decision of the Dutch Competition Authority ("NMa"). In both the first phase and the second phase procedure the essential question is whether the relevant geographical market is limited to "Het Gooi", a region in North Holland. (...)

The German Bundeskartellamt cleared with remedies, including the divestments of a depot and a shareholding, the disposal of two lease agreements and the termination of a distribution agreement (WASAG/Sprengstoffwerke Gnaschwitz)
Baker McKenzie (Dusseldorf)
The operation On 3 December 2004 H&R WASAG AG, Salzbergen (“WASAG”) notified the Bundeskartellamt of its proposed acquisition of approximately 50% of Sprengstoffwerke Gnaschwitz GmbH, Schlungwitz (“SWG”). WASAG is active in the development, production and distribution of chemical and (...)

State Aid

The European Commission approves € 47.3 million operating aid in favor of a Dutch public company operating in the hazardous waste treatment (AVR)
European Commission - DG COMP (Brussels)
"State aid for hazardous waste treatment: the case of AVR, the Netherlands"* On 22 June 2005, the European Commission has approved € 47.3 million operating aid in favour of AVR of the Netherlands for hazardous waste disposal. € 2.4 million — compensation for the cost of acquisition of the (...)

The Danish Competition Authority dismisses claim based on State aid rules on the ground that insufficient evidence was brought by the claimants and issues guidelines for the future claims (Storskærmsproduktioner)
Lexxion Publisher
Factual Background A TV producer complained about a public school ("Århus tekniske Skole") providing big screen productions free of charge in the form of open-air concerts. It claimed that the school was thereby using State subsidies meant for educational activities to finance production in (...)

The European Commission issues a consultation document concerning the reform of State aid policy in order to contribute to the Lisbon strategy for growth and job
European Commission - DG COMP (Brussels)
"Reforming state aid policy to best contribute to the Lisbon Strategy for growth and jobs"* Since she took up the mandate of Commissioner in charge of Competition, Neelie Kroes has made no secret that she plans to reform state aid policy. To some extent, reforming state aid is a logical step (...)

Procedures

The European Court of Justice confirms the legality of the Commission’s guidelines on fines (Pre-insulated pipes)
European Commission - DG COMP (Brussels)
"The ‘Pre-insulated pipes’ judgment: the European Court of Justice confirms the legality of the Commission’s Guidelines on fines"* Introduction On 28 June 2005 the Court of Justice confirmed in substance the decision of the European Commission of 21 October 1998 concerning a cartel on the (...)

The German Parliament passes an amendment modernizing national competition law and giving way to damages actions (Gesetz gegen Wettbewerbsbeschränkungen in der Fassung des Beschlusses des Deutschen Bundestages)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer (Berlin)
On 1 July 2005, major changes to German competition law entered into force. The seventh amendment of the German Act against Restraints of Competition (“ARC”) aims to bring Germany into line with the modernised EU competition law rules. Damages actions The amended section 33 ARC deals with (...)

Regulatory

The Danish competition authority finds that a Danish act on raw material has anti-competitive effects and calls for modifications
McDermott Will & Emery (Brussels)
Danish Competition Authority, Konkurrencebegrænsende virkninger af råstoflovens §§ 19 og 20, 22 June 2005 In November 2004 the Danish Competition Authority received a complaint in relation to the administration of the provisions in Articles 19 and 20 of the Danish Act on Raw Material. The (...)

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