June 2007

Anticompetitive practices

The French Commercial Supreme Court rules that exchange of information is not prohibited per se and recalls that imposing fine in an oligopolistic market requires to demonstrate a concrete anticompetitive object or effect (Bouygues Telecom, Orange, SFR, “Mobile telephony case”)
White & Case (Paris)
The “mobile telephony case” in which the French Competition Council, upheld by the Paris Court of Appeal, imposed on three competitors a record EUR 534 million fine, has not come to an end yet since the Cour de cassation (French supreme court for judicial matters) partially repealed the appeal (...)

The French Commercial Supreme Court rules that exchange of information between competitors in an oligopolistic market is not per se contrary to Art. 81 EC and national equivalent provision (Bouygues Telecom, Orange, SFR)
French Competition Authority (Paris)
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European Commission - DG COMP (Brussels)
French Commercial Supreme Court [Cour de cassation (Chambre commerciale, financière et économique)], 29 June 2007, Bouygues Telecom, Orange, SFR, Cases n° U 07-10.303, Z 07-10.354 and W 07-10.397 Background On 29 June the French Commercial Supreme Court (“the Supreme Court”) ruled on a (...)

The French Commercial Supreme Court partly annuls the Paris Court of Appeal’s judgment on illicit exchange of sensitive information in the mobile telephony cartel, thus strengthening the standard of proof (Bouygues Telecom SFR and Orange)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Eversheds Sutherland (Paris)
French Commercial Supreme Court [Cour de cassation (Chambre commerciale, financière et économique)], 29 June 2007, Bouygues Telecom, Orange, SFR, Cases n° U 07-10.303, Z 07-10.354 and W 07-10.397 Proceedings In its decision of November 25, 2005, the French Competition Council imposed record (...)

The Polish Competition Authority condemns resale price maintenance on the ceramic roofing-tile market (Röben Ceramika Budowlana)
French National Research Agency (ANR)
Röben Ceramika Budowlana Sp. z o.o. (hereafter: Röben) is a Polish limited liability company which is controlled by Röben Betailigungsgesellschaft mbH (Germany) who owns 100 per cent of its shares. Röben is specialized in manufacturing, inter alia, ceramic roofing-tiles, which are sold via (...)

The US Supreme Court sets aside Dr. Miles rule on resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leeging)
Grant & Eisenhofer
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Porter Wright Morris & Arthur (Washington)
Dr. Miles: Will the Supreme Court Find a Cure?* On December 7, 2006, the U.S. Supreme Court agreed to hear Leegin Creative Leather Products, Inc. v. PSKS, Inc.,which presents the Court with an opportunity to address the per se minimum resale price rule established almost a century ago in Dr. (...)

The US Supreme Court overrules prohibition against vertical agreements between manufacturers and their dealers setting minimum resale prices as a per se violation (Leegin Creative)
Kozyak Tropin and Throckmorton Law Firm
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Vertical Price Agreements in the Wake of Leegin v. PSKS: Where Do We Stand Now?* I. INTRODUCTORY REMARKS For nearly a century, agreements between retailers and suppliers stipulating a minimum retail price were considered per se violations of the Sherman Act. Resale price maintenance (“RPM”) (...)

The US Supreme Court reverses the 96 year old-doctrine governing resale price maintenance agreements as per se illegal replacing it with the rule of reason standard (Leegin Creative)
Hahn Loeser & Parks (Columbus)
Introduction In the summer of 2007, the United States Supreme Court overruled a ninety-six year old precedent when it overruled the historical decision of Dr. Miles in Leegin Creative Leather Products, Inc. v. PSKS, Inc.. Relying on economists’ views, the majority took a drastic measure and (...)

The US Supreme Court overturns its long-standing prohibition against vertical agreements between manufacturers and their dealers setting minimum resale prices (Leegin Creative)
White & Case (Washington)
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White & Case (Washington)
This article is part of a set of 5 articles released in Concurrences N°3-2008: Resale price regulation: Leegin and much more * The authors gratefully acknowledge the contributions of summer associates Christel Green and Aaron McAllister. I. Introduction 1. In 2007, the Supreme Court of the (...)

The US Supreme Court overrules the nearly 100-year-old per se prohibition of vertical minimum price restraints finding that they are to be judged by the rule of reason (Leegin Creative)
Berlin Freie Universität
I. Background After the per se prohibition of non-price vertical restraints and of maximum resale price maintenance have long been abolished by overruling Supreme Court decisions [Continental T.V. v. GTE Sylvania Inc., 433 U.S. 36 (1977) and State Oil v. Kahn, 522 U.S. 3 (1997)], Leegin is the (...)

The French Competition Authority accepts commitments but fines two companies for having entered into an agreement on the sector of laundry cleaning and renting (Elis & Initial BTB)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Agreement in the sector of laundry cleaning and renting fined up to 18 million euros: The Conseil de la concurrence accepts innovative commitments from the sector’s two leaders - Elis and Initial BTB – who will (...)

The Paris Court of appeal rejects rule of reason reasoning and confirms ban on resale price maintenance (Guerlain)
University Paris II Panthéon‑Assas
On March 13, 2006, the French competition council imposed a heavy fine on several manufacturers and distributors of luxury perfumes in France, for the implementation of a network of vertical agreements aiming at imposing minimum resale prices. In the judgment under review, the Paris court of (...)

The Romanian Competition Council dismisses a complaint for anticompetitive termination of a beer supply agreement (Sasha/Heineken)
University College London
The facts The dispute can be traced back to a notice for unilateral termination of the distribution contract between Heineken Romania, the beer producer, and Sasha, a non-specialised food wholesaler, served by the former on 2 Mach 2007, taking effect on 2 May 2007. The notice eventually cut a (...)

The Japan Fair Trade Commission issues a cease and desist order and imposes surcharges on participants in bidding for civil engineering and construction projects and makes a cease and desist order against them (Defense Facilities Administration Agency)
Japan Fair Trade Commission (Tokyo)
Cease and desist order, Penalty payment order, etc. Against Corporate Bidders for Civil Engineering and Construction Projects Commissioned by the Defense Facilities Administration Agency * The Japan Fair Trade Commission (JFTC), in accordance with the provisions of the Antimonopoly Act (...)

The Lithuanian Competition Authority fines a professional association for recommanding minimum fees to its members (Chamber of Auditors)
Lithuanian Competition Council
On 21 June 2007 the Lithuanian Competition Council concluded its long-running investigation in the Chamber of Auditors case with the infringement decision establishing a fine of LTL 30,000 (approx. EUR 8,689) on the Lithuanian Chamber of Auditors (LCA) for the latter’s recommendations of (...)

The Spanish Antitrust Authority fines € 4 M an olive oil manufacturer and a large retail distributors for retail price maintenance (Aceites)
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Compass Lexecon (Madrid)
The Spanish Antitrust Court (Tribunal de Defensa de la Competencia, TDC) has imposed fines of 2 million euros to the SOS-Cuétara group (the largest olive oil manufacturer in Spain), and 2 million euros to be distributed among the main retailers in proportion to their shopping area. The TDC found (...)

A German Court finds that a cartel agreement causing a coordination of prices can affect competition substantially even if the involved undertakings have a combined market share of less than 10% (Nord-KS/Xella)
Berlin Freie Universität
Background The following case deals with different concepts of “substantiality” and “appreciability” as part of the criterions “restriction of competition” and “effect on inter-state trade”. According to the European competition rules as well as to the German Act against Restraints of Competition (...)

The Hungarian Court of Appeal confirms the NCA’s decision having fined anticompetitive cooperation agreement in the course of a public procurement procedure (Construm-Royal Bau)
Eötvös Lorand University
On 16 December 2004, the Hungarian Competition Office condemned two undertakings interested in a public procurement procedure. This decision was confirmed by the Court of Appeal’s judgment on 20 June 2007. Construm and Royal Bau concluded a co-operation agreement in the course of a public (...)

The French Competition Authority issues an opinion on quality label farm and food industry (Comité interprofessionnel de la volaille de Bresse)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Sale of intermediate products restricted to label producers: The Conseil de la concurrence examines whether it is compatible with competition law to reserve certain intermediate products for producers of a (...)

The Polish competition authority finds pharmaceuticals companies and their distributors not guilty of price fixing and market sharing on the EPO medicines market (Johnson & Johnson, Roche)
Hogan Lovells (Warsaw)
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PKN Orlen
On 14 June 2007, the Polish President of the Office for Competition and Consumer Protection (“OCCP") issued a decision concerning alleged price fixing and market sharing of medicines containing human recombined erythropoietin (EPO). The OCCP had decided that agreements between Johnson & (...)

A French Court receives the first application ever from the European Commission acting as amicus curiae on the basis of Reg. N°1/2003 in a case concerning the application of the automotive block exemption (Garage Gremeau/Daimler Chrysler)
Kramer Levin Naftalis & Frankel (Paris)
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Eversheds Sutherland (Paris)
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Eversheds Sutherland (Paris)
Facts and proceedings Garage Gremeau had been entrusted by Daimler Chrysler France with the distribution of Mercedes Benz motor vehicles in the Dijon area (Burgundy) since 1982. On the basis of the new Commission Regulation (EC) n° 1400/2002, of 31 July 2002, on the application of Article (...)

The Vilnius District Administrative Court upholds the NCA’s decision in the first Art. 81 EC case in Lithuania (Paper Wholesalers)
Lithuanian Competition Council
On 7 June 2007 the Vilnius District Administrative Court (the “VDAC” or the “Court”) substantially upheld the 26 October 2006 Competition Council’s infringement decision in Paper Wholesalers. As reviewed previously in this newsletter, by that decision the Competition Council found five wholesalers (...)

Unilateral Practices

The French Competition Authority imposes an obligation upon the electricity incumbent to offer a wholesale contract to new entrants (Direct Energie/EDF)
Compass Lexecon (Paris)
Background Direct Energie (hereafter ‘DE’) is a new entrant in the French retail electricity market which supplies small professional customers. It purchases energy from EDF through a bilateral wholesale contract concluded in December 2005 (hereafter ‘EDF-DE contract’). DE has seized Conseil de la (...)

The Vilnius District Administrative Court annuls the NCA’s first Art. 82 EC case in Lithuania on both legal reasoning and procedural grounds and, inter alia, for not having informed the EC Commission, in an excessive fuel prices case (Maeikiu nafta II)
Lithuanian Competition Council
On 28 June 2007 the Vilnius District Administrative Court (the “VDAC” or the “Court”) overturned the 22 December 2005 Competition Council’s infringement decision n° 2S-16 in Mažeikiu nafta II (“MN”)(, the first Article 82 case in Lithuania, notable for its record fine of LTL 32 million (approx. EUR 9.27 (...)

A German Court decides on excessive fees for the provision of information for directory enquiry services (DaRed II)
Gleiss Lutz (Munich)
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Milbank, Tweed, Hadley & McCloy (Munich)
On 27 June 2007, the German Higher Regional Court of Düsseldorf issued a decision on the question whether a telecommunication company abused its dominant position by demanding excessive fees for the provision of information for directory enquiry services. The question at stake was whether a (...)

The Swiss Competition Commission supports the legal admissibility of parallel importation of patent-protected products into Switzerland
ABELS Avocats
I - Background A complete overhaul of the Swiss Patent Act enacted on June 25, 1954 is being discussed (mid-2007) by the Swiss Parliament. In this context, one of the heavily-debated topics is the scope of protection granted by a patent, in particular the question of whether a patent holder (...)

The Cypriot Competition Authority finds the Cyprus dairy organisation guilty of abusing its dominant position because of price discriminating among its customers and grants the applicant interim measures
Agora Trading
An Overview On June 19, 2007 the Cypriot Commission for the Protection of Competition (hereinafter: the “Commission”) condemned the Cyprus Dairy Organisation (hereinafter: the “CDO”) of having abused its dominant position in the market of production and supply of fresh milk in the form of price (...)

The US Supreme Court finds implied antitrust immunity in regulated securities industry related claims (Credit Suisse Securities / Billing)
Lytle Soulé & Curlee
Securities Law and Antitrust Law: Two Legal Titans Clash Before the United States Supreme Court in Credit Suisse v. Billing* Because of the inherent tension between antitrust law on one hand and industry-specific regulations on the other, the United States Supreme Court has often been called (...)

The US Supreme Court rules that federal securities laws implicitly preclude application of antitrust law to regulated securities industry related claims (Credit Suisse Securities / Billing)
Dentons (Washington)
Credit Suisse v. Billing: The Limited Impact on Application of Antitrust Laws in Federally Regulated Industries Following the 2008 Financial Crisis and Beyond* In Credit Suisse v. Billing, the Supreme Court of the United States considered whether antitrust laws were implicitly precluded from (...)

The US Supreme Court rules that federal and state antitrust claims related to certain IPOs are preempted by federal securities laws (Credit Suisse Securities/Billing)
Winston & Strawn (New York)
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Haug Partners (New York)
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Winston & Strawn (New York)
In a decision announced earlier today, the United States Supreme Court held that federal securities laws implicitly preclude the application of antitrust laws to claims filed against ten leading investment banks over alleged conduct on initial public offerings during the technology boom of the (...)

The Austrian competition authority concludes general inquiry in the highly concentrated food distribution sector while highlighting indications of strong buyer power (Branchenuntersuchung Lebensmittelhandel)
European Court of Justice (Luxembourg)
In June 2007, the Austrian competition authority (Bundeswettbewerbsbehörde; “BWB”) published its final report on a general inquiry conducted in respect of the Austrian food wholesale and retail distribution sector with special regard to the phenomenon of buying power (“Nachfragemacht”) exerted by (...)

The Brussels Court of Appeal confirms that a non compete clause does not constitute a restrictive agreement but may constitute an abuse of dominance (FEBIAC/WEX)
Liège University - IEJE
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Minnen & Peysmans-De Rick
I. Parties FEBIAC is a non-profit organisation which represents all motorcar designers, importers and suppliers in Belgium. Wallonie Expo (“WEX”) is the owner of an exhibition infrastructure. UPTR is a professional association of road transport companies. II. Facts In January 2005, FEBIAC (...)

The UK High Court of Justice rejects a claim of predatory behaviour on a local bus transport services market (Chester City Transport v. Arriva)
King’s College (London)
Introduction and Background to the Claim In Chester City Council and Chester City Transport Limited v. Arriva Plc, Arriva Cymru Limited and Arriva North West Limited [2007] EWHC 1373 (Ch), the High Court of Justice had to consider a claim brought by Chester City Council (‘the Council’) and (...)

The Austrian Federal Competition Authority refers to the Cartel Court a case of alleged excessive pricing in the jet fuel market pursuant to both Art. 82 EC and national provisions (Austrian Airlines/OMV)
Reidlinger Schatzmann Rechtsanwälte
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The case at hand concerns a complaint by Austrian Airlines of June 2006 to the Austrian Federal Competition Authority (FCA) that followed a long dispute between Austrian Airlines and OMV, the Austrian market leader in the oil refining and distribution of refinery products. According to the (...)

The French Competition Authority orders interim measures aiming at ending the eviction practices of the French incumbent on the market of engineering, consultancy and checking of private telephone installations (Solutel / France Télécom)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Conseil de la concurrence orders France Télécom to end its eviction practices on the market of engineering, consultancy and checking of private telephone installations.* Following a referral of November (...)

The Lithuanian Competition Authority fines the State-controlled airport for abusing its dominance by restricting access to the airport facilities (Vilnius Airport/RSS)
Lithuanian Competition Council
On 7 June 2007, in its first explicit application of the essential facilities doctrine, the Lithuanian Competition Council imposed a fine of LTL 50,000 (approx. EUR 14,481) on the State Enterprise Tarptautinis Vilniaus oro uostas (TVOU) for abuse of a dominant position by way of restricting (...)

The Turkish Competition Board holds as not abusive a refusal to supply in the glass market (Anadolu Cam)
Erdem & Erdem
By its decision dated 5 June 2007, the Turkish Competition Board (Hereafter “CB”) examined the allegations of a glassware retail shop, Solmaz Mercan (“SM” or “Complainant”) stating that Anadolu Cam is violating Article 6 of the Act on the Protection of Competition n° 4054 (“Act n° 4054”) by abusing (...)

The Swedish Market Court rejects alleged predatory pricing and bundling practices in the free press sector (Metro v. Stockholm City)
General Court of the European Union (Luxembourg)
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Kreab
Swedish Market Court (Marknadsdomstolen), 5 June 2007, Tidnings Aktiebolaget Metro v. Stockholm City i Sverige AB, Expressen AB, Dagens Nyheter AB, Case Dnr A 9/05 On the 5th of June 2007, the Swedish Market Court ruled on Tidnings Aktiebolaget Metro v. Stockholm City i Sverige AB - a case (...)

Mergers

The European Commission conditionally clears a merger in the healthcare nutrition products sector (Nestle/Novartis)
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European Commission - DG COMP (Brussels)
"Merger control: Main developments between 1 May and 31 August 2007"* In June the Commission approved the proposed acquisition of Novartis‘ Medical Nutrition business by Nestle. The approval was granted subject to the fulfilment of certain conditions. Nestle is active in the production, (...)

The Polish Competition Authority clears a merger in the retail distribution sector with remedies, including stores divestiture (Carrefour/Ahold)
Clifford Chance (Warsaw)
The operation In the decision of 28.06.2007, the President of the OCCP consented to the takeover of Ahold Polska by Carrefour subject to a structural remedy. The market(s) The relevant product market of the concentration is the market of food and non-food retail through modern channels of (...)

The Polish Competition Authority conditionally clears a merger referred back from the EC Commission in the large retail distribution sector while imposing supermarkets divestments (Carrefour Nederland/Ahold Polska)
Sdzlegal Schindhelm (Wroclaw)
On 28 June 2007, the President of the Polish Office for Competition and Consumer Protection (the “President of the OPCC”) issued a merger control decision, providing conditional clearance for the intended acquisition of 100% of the shares in Ahold Polska Sp. z o.o. (“Ahold”) by Carrefour Nederland (...)

The European Commission prohibits a merger between two airlines companies (Ryanair/Aer Lingus)
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European Commission - DG COMP (Brussels)
"Merger control: Main developments between 1 May and 31 August 2007"* On 27 June the Commission took the decision to prohibit the proposed takeover by Ryanair of Aer Lingus. Ryanair is an Irish-based “low-cost” airline, offering point-to-point scheduled air transport services on more than 400 (...)

The European Commission prohibits a merger in the airline sector for the first time (Ryanair/Aer Lingus)
European Commission - DG ECFIN
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European Commission - DG ENER
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European Commission - DG COMP (Brussels)
"Ryanair/Aer Lingus: Even “low-cost” monopolies can harm consumers"* I. Introduction The Ryanair/Aer Linguscase, which concerned a proposed merger of the two leading airlines operating from Ireland, raised a number of interesting procedural, legal and economic questions and required a (...)

The EU Commission prohibits a merger in the airline industry using econometric and survey evidence to assess the non-coordinated effects of the merger (Ryanair / Aer Lingus)
European Commission - DG COMP (Brussels)
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Compass Lexecon (Brussels)
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European Commission - DG COMP (Brussels)
"Econometric and survey evidence in the competitive assessment of the Ryanair-Aer Lingus merger"* I. Introduction Recently, the Commission prohibited the hostile takeover by Ryanair of Aer Lingus. The facts of this case differ from previous airline mergers assessed by the European Commission. (...)

The Latvian Competition Council prohibits a merger founding that it would strengthen the dominant position in two geographically distinct markets of towing services in port (Ostas Flote and PKL)
PwC (Riga)
On June 27, 2007, the Latvian Competition Council (CC) prohibited a merger between Ostas Flote and PKL. The proposed merger structure would involve creation of a new company which would take over businesses of both companies. The CC found that a merger between the parties would strengthen the (...)

The French Administrative Supreme Court upholds a merger in the audiovisual sector conditional to remedies (Métropole Télévision)
Brown Brothers Harriman (BBH) (Luxembourg)
The operation By a Court decision dated 27 June 2007, the French Administrative Supreme Court upheld a decision taken by the French Minister of Economy, Finance, and Employment on 27 October 2004 granting TV channels TF1 and AB with an authorisation to acquire Télé Monte-Carlo in a Phase I (...)

The Hungarian Competition Office interprets the Competition Act’s provisions on merger joint control (Budapest Fováros Önkormányzata / Degrémont - OTV France - Hídépíto - Alterra)
Morley Allen & Overy Iroda (Budapest)
Background With its decision of 26 June 2007 (Decision), the Hungarian Competition Office (HCO) has approved a concentration whereby the city of Budapest (“Budapest City”) outsourced the operation of a sewage farm to a consortium consisting of Degrémont SA (Degrémont), OTV France (OTV), (...)

The Turkish Competition Authority clears the creation of a joint venture while limiting the scope and duration of the non-compete obligation (ODE-Is-Girisim)
Esin
The operation ODE is a company primarily active in the business of isolation in Turkey. ODE performs the distribution of the leading firms in the field of isolation and it is a leading firm with the production activity carried out in 5 manufacturing plants in Turkey. ODE merges with Ductflex (...)

The UK OFT decided to accept undertakings in lieu of a reference to the Competition Commission, including the vacation of an overnight airport parking stand (Flybe/BA Connect)
Baker McKenzie (Dusseldorf)
The operation By decision given on 7 February 2007, the Office of Fair Trading authorised Flybe, one of Europe’s largest largest low-cost airlines specialising in serving regional destinations, to acquire the assets of BA Connect1, the regional arm of British Airways plc which offers low fare (...)

Swedish merger review: Rights of third parties to appeal merger decisions under Swedish and EU laws
Latham & Watkins (Brussels)
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Roschier (Stockholm)
Merger control constitutes an area of law where limited harmonization has occurred between EU and national law. All Member States have their own merger control rules, which in some cases differ substantially with regard to jurisdictional thresholds, notification requirements, procedure and the (...)

The Norwegian Competition Authority approved the creation of a new newspaper company, comprising one national and three regional titles, subject to behavioural remedies concerning the printing of third-party titles (Media Norge)
Ernst & Young
The operation On 15 February 2007, the Norwegian Competition Authority (NCA) was notified of the merger of one national and three regional newspapers to form Media Norge AS. The national ‘Aftenposten’ is Norway’s second largest daily newspaper. The three regional titles were: ‘Bergens Tidene’ (...)

The European Commission acknowledges the abandonment of a proposed acquisition in automobile equipment industry (HgCapital/Denton)
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European Commission - DG COMP (Brussels)
"Merger control: Main developments between 1 May and 31 August 2007"* On 13 June the European Commission acknowledged the abandonment of the proposed acquisition of Denton (US) by the UK-based financial investment group HgCapital, owner of FTSS, and closed its investigation following the (...)

The Latvian Competition Council clears a merger in the specialized equipment manufacturing and sales business market (Volvo and Ingersoll-Rand Company)
Klavins Ellex (Latvia)
I. Introduction On 13 June 2007 Latvian Competition Council adopted a decision to permit the acquisition by AB Volvo (Volvo) of Ingersoll-Rand Company Ltd. (IRC) individually divestible business - business of manufacturing and sales of specialized equipment. II. Background Volvo is a company (...)

The Hungarian Competition Authority clears a merger in the audiovisual sector subject to non-discrimination remedies (LGI Ventures/Audiotec Médiaszolgáltató)
lakatos, koves and partners
The operation LGI is owned and controlled by Liberty Global Inc. ("Liberty group") and provides media services worldwide. The Audiotec Zrt. is one of the members of the Audiotec group, which develops television channels for children and for the youth, introduces them to the public and also (...)

A Dutch Court upholds the decision of the Dutch Competition Authority and confirms the remedies proposed by the telecommunciation incumbent in the transmission of wireless radio signals sector in order to remedy vertical effects (KPN - Broadcast - Vodafone - UPC - Orange/NMa)
Philips (Amsterdam)
On 11 June 2007 the Dutch Court upheld the decision of the Dutch Competition Authority (NMa) in relation to KPN’s acquisition of the network transmission service company Nozema. The Court concluded that the NMa’s decision not to initiate a Phase 2 investigation was well founded. In December 2005 (...)

The German competition authority rejects the failing firm defence and prohibits a merger between two hospital (Mariahilf / Asklepios)
Berlin Freie Universität
I. Background LBK Hamburg GmbH (LBK) is a leading supplier of hospital services in the city of Hamburg. Seven hospitals that stood originally in the sole sponsorship of the city of Hamburg are combined within the LBK. Since a partial privatisation in 2004 LBK is jointly controlled by the (...)

A German regional Court upholds the NCA’s decision blocking an energy merger (E.ON / Stadtwerke Eschwege)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
A recent blocking decision against a merger between RWE and SaarFerngas (See Dr. Frank Röhling, Bertrand Guerin, The German Federal Cartel Office prohibits further merger of a dominant player in the electricity and gas sector (RWE/SaarFerngas), e-Competitions, July 2007-I, a Court decision (...)

The German Federal Cartel Office prohibits further merger of a dominant player in the electricity and gas sector in spite of proposed remedies (RWE/SaarFerngas)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
A recent blocking decision against a merger between RWE and SaarFerngas, a Court decision upholding a blocking decision against E.ON (See Dr. Frank Röhling, Bertrand Guerin, The Düsseldorf Higher Regional Court upholds a Bundeskartellamt decision blocking an energy merger (E.ON/ Stadtwerke (...)

The Turkish Competition Authority cleared with remedy a merger in the port cargo services market subject to non-discrmination remedy (TCDD - Port of Izmir)
Esin
The operation With the Transfer of the Operation Rights Agreement, the right to provide services at the Port of Izmir belonging to and used by TCDD such as sheltering, loading, unloading, shifting, terminal, warehousing and wharfing services, the provision of water to the ships, waste (...)

The Portuguese Competition Authority clears a merger in the air transport sector subject to remedies, including third parties access obligations, interlining agreements and freezing flights (Portugália/TAP)
PLMJ (Lisboa)
The operation Transportes Aéreos Portugueses, SGPS, S.A. (TAP) is a state-owned company which mainly operates in the air transport of passengers. Portugália - Companhia Portuguesa de Transportes Aéreos, S.A. (PGA) mainly operates in the regional air transport of passengers. TAP intends to acquire (...)

The Portuguese Competition Authority cleared in phase II a merger between the two main national airline companies with remedies including granting slots to third parties and not increasing the number of flights on certain routes (Portugália/TAP)
Uria Menéndez (Lisbon)
On 5 June 2007 the Portuguese Competition Authority (“AdC”) cleared the acquisition by the state-owned airline company TAP of its main Portuguese competitor Portugália, subject to commitments. This was the first case held by the AdC where a merger regarding passenger air transportation services (...)

The EU Commission approves, subject to divestiture, an acquisition in the travel services industry (TUI / First Choice)
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European Commission - DG COMP (Brussels)
"Merger control: Main developments between 1 May and 31 August 2007"* In June the Commission gave its approval to the proposed acquisition of First Choice, a UK travel services company, by TUI, parent of the German TUI group, active in tourism and shipping services. The Commission’s decision (...)

The Romanian Competition Council cleared a merger in the fat oil manufacturing sector subject to remedy, including giving up of purchasing new trade marks (Bunge Romania/Agricover)
Fruth Oprisan
The operation Bunge Romania SRL purchased some assets of Agricover SA consisiting in 4 fat oil trade marks and the other assets related to the manufacturing of fat oils The market(s) The relevant market consists in the market of fat oil manufacturing. Remedy: Commitment to give up (...)

State Aid

The French Administrative appeal court of Lyon rules that trade chambers are not undertakings and rejects the claim of a claimant alleging that a tax for the expenses of these chambers amounts to unlawful State aid (Bellerivedis)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The society seeks the annulment the administrative tribunal of Clermont-Ferrand judgment rejecting its claims for reimbursement of a tax on the expenses of the trade chambers (from 1991 to 2002). The disputed tax is instituted by a provision of the general tax code and is (...)

A Slovakian Regional Court rules on the central office on employment failure to issue formal decisions on its refusal to grant de minimis State aid (Emil Krajèík)
Nedelka Kubáč advokáti (Bratislava)
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Ružička Csekes
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Ružička Csekes
The Regional Court ruled that the Central Office on Employment as well as regional employment offices breached rules on administrative proceedings by omitting to issue formal decisions on refusal to grant the de minimis state aid and incorrectly assessed criteria for provision of de minimis (...)

The French Civil Supreme court applies the ECJ State aid Boiron case law and rules that national courts have an obligation to take all the necessary measures when national procedural rules are not sufficiently favorable for a claimant wishing to demonstrate the existence of overcompensation for public service obligations (Laboratoires Boiron)
Sheppard Mullin (Brussels)
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European Court of Justice (Luxembourg)
Factual Background The company Laboratoires Boiron appeals the judgment of the Court of appeal of Lyon in litigation concerning a provision of the French Code de la santé publique (Public Health Code). The appellants which is a pharmaceutical laboratory specialising in homeopathic medicines (...)

The Swedish Administrative Court of Appeal in Göteborg rules that financial support from local government to a regional film production company infringes national State aid law (Uddevalla kommun )
Swedavia AB
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General Court of the European Union (Luxembourg)
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Öberg & Associés
Factual Background In September 2005, the municipality of Uddevalla decided to give financial support of 900 000 SEK to Film i Väst, a regional film production company. Hans Jonasson, a local resident, appealed the decision to the Administrative Court. The Administrative Court considered that (...)

The Regional Administrative Court of Sardigna holds that when the EU Commission declares an aid to be incompatible, the unlawful aid should be recovered notwithstanding the fact that the national law that provided for the measure has not been repealed (Sardegna Lines)
EUJUS Law Firm (Rome)
Factual background The applicant was a company active in the sector of water transport. On 22 July 1992 Credito Industriale Sardo S.p.A. (C.S.I.), one of the major banks of Sardinia, granted the applicant an subsidised loan under Regional Law no. 20/1951. However, the European Commission, (...)

Procedures

The Czech NCA publishes new version of the Leniency Programme
Gide Loyrette Nouel
The new Leniency Programme of the Czech Office for Protection of Competition (the “Office) entered into effect on 28 June 2007. It replaced the previous 2001 programme and amended it according to the ECN Model Leniency Programme and the Commission’s Notice on Immunity from Fines and Reduction of (...)

The Luxembourg Administrative Tribunal and the Competition authorities clarify the leniency regime and introduce a marker system
MOYSE BLESER law firm
Luxembourg Administrative Tribunal (Tribunal Administratif de Luxembourg), 13 June 2007, X v. Conseil de la concurrence, Case n° 21870 The Luxembourg administrative tribunal (“Tribunal”) adopted on 13 June 2007 a landmark decision by clarifying the leniency procedure introduced by article 19 of (...)

The Paris Court of Appeals receives observations - submitted for the first time to a national court since adoption of Reg. n° 1/2003 - from the European Commission (Garage Gremeau/Daimler Chrysler)
Freshfields Bruckhaus Deringer (Paris)
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Background According to Article 15(3) of Council Regulation (EC) n° 1/2003, of 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJEC L 1, 4 January 2003, pp. 1-25), the European Commission (the “Commission”) may submit (...)

Regulatory

The Polish telecom regulator wishes to impose ex ante obligations on Internet interconnection (Telekomunikacja Polska)
French Competition Authority (Paris)
Background reminder The Internet is often called the “network of networks”. A local Internet Service Provider (ISP) wishing to offer Internet services to end-users has to connect with other networks in order to allow his end-users to exchange traffic with other end users or content providers (...)

The French Competition Authority imposes price regulation on the electricity market through interim measures (Direct Energie/EDF)
Fréget - Tasso de Panafieu Avocats (Paris)
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Novartis (Basel)
On 28 June 2007, the Competition Council ordered interim measures against Electricité de France ("EDF"), imposing it to market base-load electricity to alternative suppliers at a price enabling them to effectively compete with the incumbent operator’s retail sales on the free market (i.e.: (...)

The Brussels Court of Appeal highlights the Member States’ margin of discretion as regards the method of financing the universal service obligation in the postal and telecommunication sectors (Belgacom - Fund for the universal service in the telecommunication sector)
Sheppard Mullin (Brussels)
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UGGC Avocats (Brussels)
Background Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJEC L 108, 24 April 2002, pp. 51-77) provides that national regulatory (...)

The French Competition Council issues an opinion on the wholesale market for voice call termination on mobile networks (ARCEP)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Wholesale market for voice call termination on mobile networks: The Conseil is in favour of continuing regulation but considers however that the risks of competition imbalances identified shall also be dealt (...)

The German Federal Court of Justice clarifies to what extent the Energy Regulator may request data and information of regulated network operators regarding the development and future practice of a concept of incentive regulation (Auskunftsverlangen)
Hengeler Mueller (Dusseldorf)
I. Background The German Energy Industry Act (Energiewirtschaftsgesetz, EnWG) was implemented in 2005, introducing inter alia the regulated third party access to energy networks. In this respect the Federal Network Agency (FNA - Bundesnetzagentur) and the smaller State Network Agencies (...)

The French Supreme Administrative Court annuls a State’s decision discriminating the reimbursement’s rate between princeps and generic drugs (GlaxoSmithKline)
Fréget - Tasso de Panafieu Avocats (Paris)
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Novartis (Basel)
1. The Regulatory Context: positive discrimination as a starting point and the TFR a possible end to it Sales of reimbursable medicines to consumers are heavily regulated in France, from the level of the pharmaceutical company manufacturing them all the way through to the ultimate individual (...)

The Brussels Court of Appeal largely supports the Belgian Telecom Regulator’s decision on retail fixed telephone access markets (Belgacom/IBPT)
Leuven University
Background The decision, which is under appeal, is adopted on 19 June 2006 by the Belgian post and telecom regulator, the BIPT/IBPT (Belgian Institute for Postal Services and Telecommunications). Sector specific regulation for electronic communications, as harmonized on European level and (...)

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