June 2011

Anticompetitive practices

The Spanish Competition Commission agrees to the conventional termination, subject to commitments, of the sanctioning proceedings against several companies for joint commercialisation of television advertising slots (Antena 3 Televisión, Veo Televisión and The Walt Disney Company Iberia)
Mediaset
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Cuatrecasas, Goncalves Pereira (Brussels)
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Allen & Overy (Madrid)
On June 30, 2011, the Spanish Competition Commission (Comisión Nacional de la Competencia or “CNC”) agreed to the termination, subject to commitments, of the sanctioning proceedings initiated against several broadcast television companies for adopting horizontal agreements relating to sales and (...)

The Paris Court of Appeal confirms the decision of the NCA in the mobile telephony case by adopting the same arguments without clarification regarding the new requirement of proof of harm to the economy (Orange France)
Linklaters (Paris)
The ruling by the Paris Court of Appeal of 30 June 2011 in connection with decision N° 05-D-65 (hereinafter Decision) of the Competition Council (which has now become the Competition Authority) opens new perspectives for thinking about certain issues such as (i) the criteria for sanctions in (...)

The EU General Court hears an appeal from Spanish service station associations against a Commission’s decision (CEES/AGES)
Van Bael & Bellis
CEES (Confederación Española de Estaciones de Servicio) and AGES (Asociación de Gestores de Estaciones de Servicio), two associations representing 45 percent of Spanish service stations, are reported to have recently lodged an appeal with the General Court against a Commission decision which (...)

The Spanish Competition Commission closes with commitments a proceeding initiated against two companies for alleged restrictive practices in the printed advertising sector (Vocento, Godό)
Callol, Coca & Asociados
On 30 June 2011 the NCC has decided to close a formal proceeding opened ex officio against Corporación Vocento S.A.U. and Vocento, S.A. (VOCENTO) and Publipress Media, S.L.U. and Grupo Godó de Comunicaciones S.A. (GODÓ) for possible restrictive practices under Article 1 SCA. The practices (...)

The Paris Appeal Court confirms fines imposed by the French Competition Authority in telecommunications case (Mobile phone cartel)
European Commission
France: The Paris Appeal Court upholds Fines imposed by the French Competition Authority in Telecommunications Case* On 30 June 2011, the Paris Court of Appeal upheld the fine that had been imposed by the French Competition Authority in the mobile telephony sector. This ruling follows a (...)

The German Supreme Court holds that indirect purchasers have standing to sue for antitrust damages but defendants may invoke passing-on defense (Carbonless paper cartel)
Jones Day (Dusseldorf)
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Jones Day
The German Federal Civil Court (BGH) has held that both direct and indirect purchasers may sue for antitrust damages, but defendants may raise the passing-on defense. Through the passing-on defense, defendants try to demonstrate that plaintiffs suffered no financial harm, as they passed on the (...)

The Spanish Competition Authority imposes fines totalling € 18 M on 19 Spanish manufacturers and distributors of fluid pumps (Bombas de Fluidos)
Van Bael & Bellis
On 28 June 2011, the Spanish Competition Authority (“CNC”) announced that it had fined the Spanish Association of Fluid Pump Manufacturers (Asociación Española de Fabricantes de Bombas de Fluidos –“AEFBF”) and 19 manufacturers and/or distributors of fluid pumps a total of € 18 million for engaging in (...)

The Moldovan Court of Appeals quashes the infringement decision of the Competition Authority on concerted practices in the market for retail trade in oil derivatives on the basis of lack of evidence (Petrom-Moldova)
University of Technology (Tallinn)
On 24 June 2011 the Chisinău Court of Appeals (the CAC) quashed the infringement decision of the Moldovan Competition Authority (ANPC) establishing the existence of concerted practices on the market for retail trade in oil derivatives. The CAC held that the ANPC failed to present sufficient (...)

The Spanish Competition Authority fines undertakings involved in the fluid pumps cartel (Spanish association of fluid pump manufacturers)
European Commission
Spain: The CNC fines Undertakings involved in the Fluid Pumps Cartel* In its Resolution of 24 June 2011, the CNC Council decided that it was established that several undertakings active in the fluid pumps sector and the Spanish Association of Fluid Pump Manufacturers (AEFBF) had participated (...)

The New York Southern District Court holds that enforcement of a Minimum Advertised Price (MAP) policy against Internet retailers does not amount to minimum resale price maintenance (Worldhomecenter.com / Franke Consumer Products)
Pepper Hamilton (Philadelphia)
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Pepper Hamilton (Philadelphia)
Courts May Try to Harmonize Federal and State Law on the Legality of Resale Price Maintenance* Ever since the United States Supreme Court ruled in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), that resale price maintenance (i.e., agreements to set minimum resale (...)

The Portuguese Competition Authority imposes a € 9865 fine on 7 regional driving schools for anti-competitive agreements on prices after a 3-year investigation (Driving school cartel)
Sérvulo & Associados
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European Court of Justice
On June 17, 2011, the Portuguese Competition Authority (PCA) announced, through Press Release 6/2011 that it has imposed fines totalling € 9.8 thousand on seven driving schools operating in the Autonomous Region of Madeira (ARM) – more specifically, in the capital Funchal – which it has found had (...)

The EU General Court reduces fine in the Dutch beer cartel case finding that the EU Commission did not prove all infringements and that the duration of the procedure was excessive (Bavaria)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court reduces fine in the Dutch beer cartel case finding that the EU Commission did not prove all infringements and that the duration of the procedure was excessive (Heineken)
Google (London)
The Dutch Beer Cases: The Value of Whistleblower Statements and the Cutback of Fines in Case of Unreasonably Long Commission Investigations* The General Court has rendered a series of judgments in the Dutch Beer Cartel case that involve a number of legal issues, including in Grolsch v. (...)

The EU General Court partially annuls the Commission’s decision and reduces fines in a cartel case concerning the international removal services market in Belgium (Gosselin, Verhuizingen Coppens)
White & Case (Brussels)
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White & Case (London)
By its decision of 11 March 2008, the Commission imposed fines totalling over EUR 32 million on ten companies for their participation in a cartel on the international removal services market in Belgium between October 1984 and September 2003. In particular, the Commission imposed fines of EUR (...)

The EU General Court holds for the first time that the Commission erred in relying on the presumption that a parent company is liable for the anticompetitive conduct of its wholly-owned subsidiary (Hydrogen Peroxide)
White & Case (Brussels)
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White & Case (London)
By its decision of 3 May 2006, the Commission imposed fines totalling over EUR 388 million on a number of companies for their participation in a cartel on the market for hydrogen peroxide and sodium perborate (bleaching agents) between 31 January 1994 and 31 December 2000. Among the companies (...)

The EU General Court partially annuls the Commission’s decision and reduces fines in a cartel case concerning the Dutch beer market (Netherlands Beer)
White & Case (Brussels)
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White & Case (London)
By its decision of 18 April 2007, the Commission imposed fines totalling approximately EUR 270 million on several Dutch brewers, including Heineken NV and its subsidiary Heineken Nederland BV, and Bavaria NV, for their participation in a cartel on the Dutch beer market between 27 February 1996 (...)

The Italian Competition Authority detects and punishes a cartel between a trade association and 20 trucking companies that haul freight to or from Italy aimed at fixing the size and form of price increases applied to their customers (International logistics)
University of Bologna
The Italian Competition Authority (hereinafter “AGCM”) has fined a trade association and 20 trucking companies that haul freight to or from Italy a total of € 76.447.677 for operating a single and complex price-fixing cartel having as its object the restriction of competition for at least five (...)

The Italian Antitrust Authority concludes an investigation triggered by a leniency application concerning a cartel in the freight forwarding market (Freight-forwarding agents cartel case)
European Commission
Italy: Fines imposed in Freight-Forwarding Agents Cartel Case* On 15 June 2011, the ICA concluded an investigation triggered by a leniency application concerning a cartel in the freight forwarding market. The ICA ascertained that the main market players had coordinated their commercial (...)

The EU Court of Justice issues a preliminary ruling on disclosure of leniency documents to third parties heightening concerns about encouraging private enforcement (Pfleiderer)
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. ECJ Ruling in Pfleiderer Heightens Concerns about Encouraging Private Enforcement* The European Court of Justice (ECJ) has ruled that EU Law does not prohibit access to leniency documents by third parties seeking damages. Access should (...)

The Competition Authority of Bosnia & Herzegovina addresses anti-competitive regulations on the taxi market of one of the cantons (Ministry of Transport of the Sarajevo Canton and Assembly of the Sarajevo Canton)
University of Technology (Tallinn)
On 14 June 2011 the Competition Authority of Bosnia & Herzegovina (KV) established that the Assembly of Sarajevo canton and the Ministry of Transport of Sarajevo canton by adopting a series of sector-specific regulations have restricted competition on the market for taxi services on the (...)

The EU Court of Justice issues a preliminary ruling holding that national courts need to balance on a case-by-case basis the interest of preserving the effectiveness of leniency programmes and that of facilitating private enforcement by third parties (Pfleiderer)
Winston & Strawn (London)
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DLA Piper (Frankfurt)
On 14 June 2011, the European Court of Justice (ECJ) handed down a key judgment regarding the interplay between national leniency programmes and the right of individuals to claim damages for losses in EU cartel cases. The ECJ held that documents submitted under the auspices of a national (...)

A US Court of Appeals precludes tying claims brought by an hospital upholding the direct-purchaser rule under the Illinois Brick doctrine (Warren General Hospital/Amgen)
Wolters Kluwer (Riverwoods)
Illinois Brick Direct-Purchaser Rule Precludes Tying Claims by Hospital* The U.S. Court of Appeals in Philadelphia earlier this week reaffirmed the “bright-line” rule limiting federal antitrust standing to direct purchasers. The court upheld dismissal (CCH 2010-1 Trade Cases ¶77,043) of an (...)

The Spanish National Court applies the ECJ "dual pricing" ruling to quash a decision by the Spanish Competition Commission concerning prices imposed to wholesalers by pharmaceutical company (Pfizer)
CMS Albinana y Suarez de Lezo (Madrid)
The Spanish National Court has applied the landmark ECJ dual pricing ruling to quash a decision by the Spanish Competition Commission dismissing a complaint against Pfizer’s pricing policy for pharmaceutical products. On 13 June 2011, the Spanish National Court («Audiencia Nacional« or «the (...)

A US Court of Appeals affirms the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages (Brantley / NBC Universal)
Sheppard Mullin (Los Angeles)
Ninth Circuit Rejects Consumer Antitrust Challenge To Cable Television Bundling* The Ninth Circuit recently affirmed the dismissal of a consumer class action challenging the television programming industry’s practice of exclusively offering multi-channel cable packages. Brantley v. NBC (...)

The EU General Court reduces fines imposed to a cartelist and its subsidiaries in the methacrylates sector (Arkema France)
Jones Day (Paris)
Unlimited jurisdiction: the end of a misnomer?* The past decade has seen a flurry of articles published trying to make sense of the degree of control that the EU Courts exercise on complex economic reasoning. By contrast, much less has been written about the Courts’ unlimited jurisdiction on (...)

The Portuguese Competition Authority fines industrial cleaning firms for anti-competitive bid-rigging and information exchange (Conforlimpa - Multiserviços and Number One - MultiServices)
Sérvulo & Associados
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European Court of Justice
On June 2, 2011, the Portuguese Competition Authority (PCA) announced, through its Press Release Nr. 5/2011, that it has imposed fines totalling EUR 316.3 thousand on two industrial cleaning firms in Portugal which it has found had colluded on cleaning services contracts. The PCA has concluded (...)

The Supreme Administrative Court of Lithuania issues a final judgement against an association of undertakings for implementing collective boycott practices (Lithuanian Cynological Society)
Max Planck Institute for Innovation and Competition (Munchen)
On 1 June 2011 the Supreme Administrative Court of Lithuania decided that the Lithuanian Cynological Society (hereafter: “the LCS”) had infringed Article 5 of the Law on Competition (a national provision equivalent to Article 101 TFEU) by having forbidden its members to sell puppies with the (...)

The French Competition Authority accepts commitments in relation to exclusivity agreements in the multi-brand gift cards sector (Accentiv’Kadéos)
Hewlett Packard (Boulogne-Billancourt)
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Affinion International
In its decision N°11-D-08 dated 27 April 2011, the French Competition Authority (the «Competition Authority«) accepted the commitments offered by Accentiv’Kadéos in relation to exclusivity agreements between it and its partner brands in the multi-brand gift cards sector. Background On August 2009, (...)

The Chinese National Development and Reform Commission fines an international brand consumer products company for disseminating information on price increases and disrupting market order (Unilever)
Lni avocats (Paris)
China’s price law and regulations expressly stipulate the form of and legal liability for disseminating information of price increases. Article 14 of the Price Law of the People’s Republic of China stipulates that no operator shall engage in falsifying and disseminating information of price (...)

The Serbian Competition Authority fines a professional association for adopting uniform minimum service fees to be applied by its members (Veterinary Chamber of Serbia)
University of Technology (Tallinn)
On 17 March 2011 the Serbian Competition Authority (KZK) has fined the Veterinary Chamber of Serbia (VKS) for adopting uniform minimum service fees to be applied by its members. The fine amounted to 7% of the VKS’s annual turnover in 2007 (RSD 1.243.690 or approx. EUR 12.330). The above (...)

The Italian Competition Authority accepts and makes binding commitments to avoid further proceedings into an alleged anticompetitive practice in the paper waste and raw paper material sector (COMIECO)
University of Bologna
The Italian Competition Authority (hereafter Agcm) has accepted and made binding commitments offered by the National Consortium established under Italian private law to rationalize, organize and promote the recovery and recycling of cellulose-based packaging(hereafter “COMIECO”). The Agcm stated (...)

Unilateral Practices

The Helsinki Court of Appeals dismisses the appeal of the Finnish composers’ copyright society to annul a decision founding it has abused its dominant position on the market of licensing copyrights (Teosto)
European Commission
Finland: Copyright Management Organization abused its Dominant Position* On 30 June 2011, the Helsinki Court of Appeals dismissed the appeal of the Finnish Composers’ Copyright Society (Teosto) to annul a district court decision where Teosto was found to have abused its dominant position on the (...)

The Italian Competition Authority fines the refusal to share with competitors information essential for renewal of marketing authorization (Bayer Cropscience)
European Commission
Italy: The ICA fines Refusal to share with Competitors Information essential for Renewal of Marketing Authorisation* On 28 June 2011, the Italian Competition Authority (ICA) sanctioned Bayer Cropscience S.r.l. together with Bayer Cropscience AG for a violation of Article 102 TFEU and imposed a (...)

The Italian Competition Authority fines a producer for abuse of its dominant position in the plant health products market (Sapec Agro/Bayer-Helm)
Desogus Law Office (Cagliari)
Introduction By the Sapec Agro/Bayer-Helm decision the Italian Competition Authority has fined € 5.124.359,00 Bayer Cropscience AG (BCS) and its Italian subsidiary Bayer Cropscience Srl for abuse of dominant position in the market for the production and commercialization of fosetyl-based (...)

The Supreme Administrative Court reduces fines for resale price maintenance of DVD films (DVD films distributors)
Valiunas Ellex (Vilnius)
The DVD films distributors case is one of only a few Lithuanian precedents on prohibited vertical agreements, i.e. resale price maintenance. The judgment of the Supreme Administrative Court of Lithuania (hereinafter – the Supreme Administrative Court) in the case No A-444-1433/2011 is the first (...)

The Austrian Supreme Court of Justice brings a preliminary ruling before the ECJ on the application of Article 102 TFEU to the Austrian commercial register (Compass)
Saxinger Chalupsky & Partners (Brussels)
The Compass group (“Compass”), a private provider of business information, runs a database of all Austrian businesses registered in the Austrian commercial register, for which end users have to pay. Besides the information available in the Austrian commercial register, which is run by the (...)

A Norwegian District Court dismisses a counter-claim against a subsidiary of the incumbent railway operator for abusing its dominant position (CargoNet, CargoLink)
BA-HR
In a judgment handed down on 24 June 2011, the Drammen District Court dismissed a counter-claim entered by railway operator CargoLink AS («Cargolink«) against fellow operator CargoNet AS («CargoNet«). Cargolink alleged that it had suffered economic losses as a result of CargoNet‘s abuse of (...)

The US FTC opens in-depth investigation for alleged antitrust violations in the online search market: A point of view (Google)
David A. Balto (Washington, DC)
Internet Search Competition: Where’s the Beef?* On [24] June 2011, Google announced that the FTC had opened an investigation of its search practices. This is an issue I have given considerable thought to. In an article I just released—Internet Search Competition: Where’s the Beef?—I explain (...)

The Japan Fair Trade Commission issues a cease and desist order to a chain of supermarkets for an abuse of superior bargaining position (Sanyo Marunaka)
Van Bael & Bellis
Facts and procedure of the case Sanyo Marunaka is a powerful retail chain of supermarkets called ‘Marunaka’ active in several areas including Okayama prefecture and Osaka city in Japan. It has developed approximately 73 retail shops and its annual turnover is marked as over Yen 120 billion (...)

The EU Commission imposes on Polish telecoms operator a fine of € 127.5 M for refusing to supply wholesale broadband products to alternative operators (Telekomunikacja Polska)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
"Telekomunikacja Polska Decision: competition law enforcement in regulated markets"* 1. Introduction On 22 June 2011 the Commission imposed on telecoms operator Telekomunikacja Polska S.A. (TP) a fine of € 127.5 million for refusing to supply wholesale broadband products to alternative (...)

The Supreme Court of Norway renders its first judgment interpreting Section 11 of the Norwegian Competition Act which forbids the abuse of a dominant position (Tine)
BA-HR
On 22 June 2011, the Norwegian Supreme Court rendered its first ever judgment interpreting Section 11 of the Norwegian Competition Act which forbids the abuse of a dominant position, a provision akin to Article 102 TFEU. The judgement ultimately vindicates dairy producer Tine AS («Tine«) for (...)

The European Commission imposes on telecoms operator a fine of € 127 000 000 for abusing its dominant position (Telekomunikacja Polska)
European Commission
European Commission fines Telekomunikacja Polska S.A. € 127 000 000 for Abuse of Dominant Position* On 22 June 2011, the European Commission (the Commission) imposed on telecoms operator Telekomunikacja Polska S.A. (TP) a fine of € 127 000 000 for abusing its dominant position in the Polish (...)

A US District Court dismisses the antitrust counterclaims alleging monopolization on the market for maintainance of printers, while allowing the tortious interference claims to continue (Océ North America / MCS)
Sheppard Mullin (Los Angeles)
Aftermarket Monopolization Claims Dismissed as Afterthought* Plaintiff Océ North America, Inc. ("Océ") brought an action against a service market supplier for copyright infringement. Defendant MCS Services, Inc. ("MCS") filed a Kodak-style "aftermarket" monopolization counterclaim, in addition (...)

A local branch of the Chinese SAIC applies for the first time the anti-monopoly law against a local government for abuse of administrative powers (Heyuan municipal government)
Lni avocats (Paris)
It has been reported that on June 12, 2011, the Guangdong Provincial administration for industry and commerce ("Guangdong AIC") requested the local Guangdong provincial government to correct the abusive conduct of a municipal government which had, by various measures, restricted the competition (...)

The Japan Fair Trade Commission issues a cease and desist order against a company providing social networking service for mobile (DeNA)
Japan Fair Trade Commission (Tokyo)
Cease and Desist Order against DeNA Co., Ltd* The Japan Fair Trade Commission (JFTC) has investigated DeNA Co.,Ltd. (DeNA) in accordance with the provisions of the Antimonopoly Act (AMA) and found it to be in violation of Article 19 of the AMA (falling within Paragraph 14 [Interference with a (...)

The Swedish Market Court prohibits the national postal operator’s rebate system and made its decision subject to the penalty of a fine of SEK 100 million (Posten)
Vinge (Stockholm)
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Cosmetics Europe
Introduction The claimant, Bring CityMail Sweden AB (“CityMail”) brought a claim against the Swedish Post (“Posten”), arguing that the discounts offered by Posten to its clients had foreclosure effects. The Market Court placed the burden of proof on Posten to prove that the discount programme was (...)

The Swedish Market Court finds that national postal operator abused its dominant position in the market for bulk mail deliveries (Bring CityMail Sweden / Posten Meddelande)
Stockholm University
In a ruling of 8 June 2011, the Swedish Market Court prohibits the national postal operator Posten from applying a worksharing discount system on certain bulk mail deliveries. The discount system is found to have foreclosing effects, and its application constitutes an abuse of Posten‘s dominant (...)

The Danish competition and consumer authority complets a competition analysis of the grocery market (Danish Grocery Market)
European Commission
Denmark: Analysis of Danish Grocery Market* In June 2011, the Danish Competition and Consumer Authority (DCCA) completed a competition analysis of the Danish Grocery market. The objective of this exercise was to study the competition among the retailers and the suppliers in the Danish grocery (...)

The Croatian Competition Authority finds no abuse of dominance in bundled insurance packages (Croatia osiguranje)
University of Technology (Tallinn)
On 21 April 2011 the Croatian Competition Authority (AZTN) closed its investigation into the alleged abuse of dominant position by the leading insurance company Croatia osiguranje d.d. (Crosig). The AZTN found no abuse of dominance in the bundled insurance packages offered by Crosig stating (...)

The English High Court finds London airport abused its dominant position in refusing competing car concierge services access to the arrivals forecourt (Heathrow Airport/Purple Parking and Meteor Parking)
DLA Piper
The English High Court has found that Heathrow abused its dominant position by refusing competing car concierge services access to the arrivals forecourts at Heathrow Airport. The case was brought by Purple Parking Limited (Purple) and Meteor Parking Limited(Meteor). Both Purple and Meteor (...)

The Spanish Competition Authority fines a broadcasting company and its subsidiary for abusing their dominant position in the market for audiovisual retransmission rights of football matches (Mediapro and Gol TV)
Kim & Chang
The Spanish competition authority (CNC) has fined jointly MEDIAPRODUCCIÓN S.L. (MEDIAPRO) and its subsidiary GOL TV 500,000 Euros for abusing its dominant position in the market for audiovisual retransmission rights of football matches. The facts that have led to the decision of the CNC can be (...)

The EU Court of Justice holds a preliminary ruling in a margin squeeze case in the telecomunications sector (TeliaSonera Sverige)
Airbus Defence and Space (Toulouse)
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European Commission - DG CNECT
The opinions expressed in this article are the personal views of the individual authors and do not necessarily represent the views of the employers of the authors. Warm thanks are expressed to Dilip Roy, Ben Harries and Simon Maunder for their contribution to this paper. Background Until the (...)

The Croatian Constitutional Court upholds the judgment of the Administrative Court confirming its previous position on the application of EU competition rules (Tisak)
University of Zagreb - Faculty of Economics and Business
Tisak d.d., one of the two biggest wholesale distributors of newspapers in Croatia, submitted on 6 May 2010 a constitutional complaint to the Constitutional Court of the Republic of Croatia against a judgement of the Administrative Court of the Republic of Croatia which confirmed a decision (...)

The Hellenic Competition Commission recalculates the fine imposed on a leading food company’s for its anti-competitive practices in the instant coffee market (Nestlé)
Ofcom
Background of the dispute In a 2009 decision, the Hellenic Competition Commission (HCC) had found that Nestle had infringed articles 101 and 102 TFEU as well as the corresponding articles of national competition law (articles 1 and 2 of Law 703/77). In particular, Nestle was found, inter alia, (...)

Mergers

The French Competition Authority clears, subject to conditions, a merger on the fuel and LPG distribution sector in the French West Indies and Guyana (Rubis / Chevron)
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears under conditions the acquisition by Rubis Group of sole control of Chevron (Texaco)’s activities in the French West Indies and Guyana*. The Autorité de la concurrence has (...)

The Hungarian Competition Authority holds that outsourcing agreements shall be notified as change of control over a business unit, contrary to the European Commission’s practice that qualifies it as service contract (HP / E.ON)
Philip Morris
1. Introduction On 30 June 2011, the Hungarian Competition Office (HCO) cleared an outsourcing agreement concluded between Hewlett-Packard GmbH (HP) and E.ON IT GmbH (E.ON IT) (together the Parties) in a Phase I merger procedure. The HCO concluded that the outsourcing of the previously (...)

The Canadian Competition Bureau challenges proposed airline joint venture (Air Canada and United Continental)
Canadian International Joint Commission
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Canadian International Joint Commission
Gavin Murphy, barrister and solicitor, Ottawa, Canada. The author serves on the editorial advisory boards of the Commonwealth Law Bulletin and the Journal of Parliamentary and Political Law. Shane Zurbrigg is a second year law student at the University of Ottawa. The views expressed in this (...)

The Canadian Competition Bureau seeks to unwind proposed airline joint venture (Air Canada and United Continental)
Canadian International Joint Commission
Introduction Canada’s Competition Bureau (the "Bureau"), an independent law enforcement agency that assists the Commissioner of Competition (the "Commissioner") in the administration and enforcement of the Competition Act (the "Act"), wants to ground Air Canada. The Bureau announced on 27 June (...)

The Chinese MOFCOM publishes draft rules on investigation procedures regarding failure to notify on concentrations
King & Wood Mallesons (New York)
MOFCOM publishes draft rules on investigation procedures re failure to notify on concentrations* Pursuant to the Anti-Monopoly Law, transactions which are construed as "concentrations" (i.e. mergers, acquisitions and joint ventures) and which meet with specified turnover thresholds ; must be (...)

The Chinese MOFCOM publishes provisional rules on the investigation of concentrations of business operators without legal filing
AnJie Law (Beijing)
Can companies avoid filing concentrations?* When a merger, acquisition or joint venture is connected to the Chinese market and is treated as a concentration under China’s Anti-monopoly Law, a company’s first question to its lawyer is likely to be whether the transaction must be filed with the (...)

The Romanian Competition Authority clears a healthcare merger subject to structural divestitures and behavioural commitments (Fresenius, Renamed)
University of Technology (Tallinn)
On 20 June 2011 the Romanian Competition Authority (CC) has cleared a healthcare merger subject to certain structural divestitures and behavioural commitments. The subject concentration was notified by SC Fresenius Nephrocare Romania SRL (Fresenius), which set out to acquire sole control over (...)

The European Commission refers the assessment of a proposed acquisition to the German NCA in the market for the provision of free‑TV services to housing associations (Kabel Baden‑Württemberg/Liberty Global)
"Merger: main developments between 1 May and 31 August 2011"* The European Commission refers the assessment of a proposed acquisition to the German competition authority in the market for the provision of free‑TV services to housing associations (Kabel Baden‑Württemberg / Liberty Global) On 17 (...)

The US DoJ issues the new policy guide to merger remedies
Akin Gump Strauss Hauer & Feld (Washington)
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Morrison & Foerster (Washington)
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DLA Piper (New York)
This article has been selected for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Summary On Friday, June 17, 2011, the U.S. Department of Justice released the Antitrust Division’s Policy Guide to Merger (...)

The French Competition Authority clears, subject to conditions, a merger on the retail sale of household appliances and consumer electronics sector (HTM / Saturn)
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears, subject to conditions, the acquisition of French Saturn stores’ sole control by HTM (Boulanger stores)*. The Autorité de la concurrence has investigated the takeover by (...)

The European Commission announces the withdrawal of a merger notification between the two leading suppliers of household insecticides (SC Johnson/Sara Lee)
Van Bael & Bellis (Brussels)
On 8 June 2011, the European Commission announced that the notification of the proposed acquisition by SC Johnson & Son Inc of the household insect control business of Sara Lee Corporation had been withdrawn. The proposed transaction had been notified to the Commission on 3 November 2010. (...)

The Chinese MOFCOM issues draft rules on merger assessment inviting public comments
China Competition Bulletin
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China Competition Bulletin
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Institute of American Studies
MOFCOM Invited Comments on the Interim Provisions on the Assessment of Competitive Effects of Concentrations of Undertakings* The MOFCOM issued the draft Interim Provisions on the Assessment of Competitive Effects of Concentrations of Undertakings (Merger Assessment Rules) on 3 June 2011 and (...)

The Chinese MOFCOM approves merger between potash producers but requires they continue to supply the Chinese market (Silvinit and Uralkali)
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Beijing)
On June 2, 2011, the Chinese Ministry of Commerce (MOFCOM) announced conditional approval of the merger between Russian potash producers Silvinit and Uralkali. Since the PRC Anti-Monopoly Law ("AML") entered into force in 2008, MOFCOM has published only eight decisions, as it makes public only (...)

The Chinese MOFCOM conditionally approves merger between two Russian undertakings in the Chinese potash industry (Uralkali/Silvinit)
Linklaters (Beijing)
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Linklaters (Shanghai)
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Linklaters (London)
On 2 June 2011, under two months into Phase 2, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) publicly announced its decision approving the merger of Uralkali with Silvinit, leading to the creation of the world’s second largest potassium chloride supplier, subject to several (...)

The Chinese MOFCOM conditionally clears in phase II a merger between two Russian companies in the Chinese potash market (Urakali / Silvinit)
King & Wood Mallesons (New York)
The Russian Potash Deal - first conditional clearance of 2011* On June 2, 2011, Ministry of Commerce (MOFCOM) publicly announced the first conditional merger clearance in 2011. At its [2011] No. 33 Announcement, MOFCOM cleared Uralkali’s proposed acquisition of Silvinit (the Parties) (both (...)

The Chinese MOFCOM conditionally clears merger between two Russian companies in the Chinese potash market (Uralkali/Silvinit)
China Competition Bulletin
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China Competition Bulletin
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Institute of American Studies
MOFCOM Conditionally Approves the Acquisition of Silvinit by Uralkali* On 2 June 2011, the MOFCOM conditionally approved Uralkali’s proposed US$1.4 billion acquisition of Silvinit, both of which are Russian potash companies. The MOFCOM imposed a set of behavioural remedies. The MOFCOM accepted (...)

The Indian Competition Commission publishes reforms in merger control regime
Cyril Amarchand Mangaldas (Mumbai)
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Cyril Amarchand Mangaldas (Mumbai)
Recent Developments in Merger Control in India* Introduction India’s highly anticipated merger control regime (Sections 5 and 6 of the Competition Act, 2002 (“Act”) and the accompanying Competition Commission of India (Procedure in regard to the transaction of business relating to (...)

The Competition Commission of India publishes regulations narrowing the application of the new Competition Act regarding merger provisions
White & Case (Washington)
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White & Case (Washington)
On June 1st 2011, the merger control provisions of the Indian Competition Act 2002 will finally enter into force. If you are contemplating M&A activity with binding agreements being signed as of tomorrow, you will need to carefully consider this new merger control regime. The Competition (...)

The UK Competition Commission provisionally clears acquisition in the commercial vehicles tail lifts spare parts business (Ratcliff Palfinger / Ross&Bonnyman)
Herbert Smith Freehills (Brussels)
Introduction and background Ratcliff Palfinger (Ratcliff) manufactures and supplies tail lifts for commercial vehicles, passenger vehicles and trains. Ross & Bonnyman (R&B) manufactures and supplies tail lifts for commercial vehicles, ambulances and mezzanine and yard lifts. Both (...)

The Brazilian Administrative Council for Economic Defence approves the first voluntary divestment transaction (Owens Corning, Chongqing Polycomp International)
Inglez, Werneck, Ramos, Cury e Françolin Advogados
Brazil’s first voluntary divestment was approved by the Administrative Council for Economic Defence (CADE), involving the sale by the U.S. fibreglass manufacturer Owens Corning of its Brazilian fibreglass reinforcement plant to Chongqing Polycomp International Corporation, a Chinese company. On (...)

State Aid

The European Commission authorises a plan by Germany to exempt selected groups of passengers to and from seven German islands from a newly‑created tax on air transport (Juist, Norderney)
University Luiss Guido Carli - GRIF (Rome)
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European Commission - DG COMP (Brussels)
"State aid: main developments between 1 May and 31  August 2011"* On 29 June 2011, the Commission authorised a plan by Germany to exempt selected groups of passengers to and from seven German islands (Juist, Norderney, Helgoland, Baltrum, Langeoog, Wangerooge, Borkum) from a newly‑created (...)

The European Commission clears a joint restructuring plan for two Irish banks (Anglo Irish Bank and Irish Nationwide Building Society)
University Luiss Guido Carli - GRIF (Rome)
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European Commission - DG COMP (Brussels)
"State aid: main developments between 1 May and 31  August 2011"* On 29 June 2011, the Commission cleared a joint plan for Anglo Irish Bank (Anglo) and Irish Nationwide Building Society (INBS) whereby they will be merged and resolved over a period of 10 years. The two Irish financial (...)

The European Commission concludes that the unlimited State guarantee granted to a French research body constitutes compatible State aid as long as the its economic activities are conducted solely on an ancillary basis and are connected with its main activity (Institut Français du Pétrole)
University Luiss Guido Carli - GRIF (Rome)
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European Commission - DG COMP (Brussels)
"State aid: main developments between 1 May and 31  August 2011"* By decision of 29 June 2011 the Commission concluded that the unlimited State guarantee granted to the Institut Français du Pétrole Énergies Nouvelles (IFP) constitutes compatible State aid as long as the IFP’s economic (...)

The European Commission approves the joint restructuring of two Irish banks (Anglo Irish Bank/Irish Nationwide Building Society)
De Nederlandsche Bank (DNB)
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European Commission - DG COMP (Brussels)
"The Resolution of Anglo Irish Bank and Irish Nationwide Building Society"* 1. Introduction Of the banks that have received State aid during the financial crisis, few have received as much aid relative to their risk‑weighted assets as Anglo Irish Bank (Anglo) and Irish Nationwide Building (...)

The Danish Competition Council finds that a municipality had granted unlawful aid to a national football club but it could not order its repayment because the aid was granted before the relevant State aid provisions in the Danish Competition Act came into force (The Farum Park Case)
Lexxion Publisher
On 22 June 2011 the Danish Competition Council issued a decision dealing with the question whether a Danish municipality (municipality of Furesø) had rented a Center for Sport and Culture to a local football club (FC Nordsjaelland) to a price below market price, leading to a grant of unlawful (...)

The Danish Competition Council orders full recovery of unlawful aid according to section 11a in the Competition Act after the case was referred for reconsideration by the Competition Appeals Tribunal (The Kastrup Marina Case)
Lexxion Publisher
By its second decision of 22 June 2011 in the Kastrup Marina Case the Danish Competition Council has for the first time ever ordered full recovery of unlawful and incompatible aid under Section 11a in the Danish Competition Act (corresponding to Article 107 of the EUF Treaty). The first (...)

The European Court of Justice upholds the General Court’s decision addressing the issue of the admissibility of action in state aid cases under the Plaumann test (Comitato Venezia vuole vivere)
European Commission - Legal Service
Death in Venice: The end of a Commission’s locus standi theory in State aid cases?* Following my previous post, I would like to briefly refer to another interesting battlefield within the State aid area: the locus standi of the beneficiaries of aid schemes (think, for instance, of tax (...)

The European Commission grants temporary approval to Danish support for the liquidation of a bank which was declared bankrupt (Amagerbanken)
University Luiss Guido Carli - GRIF (Rome)
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European Commission - DG COMP (Brussels)
"State aid: main developments between 1 May and 31  August 2011"* On 6 June 2011 the Commission granted temporary Approval to Danish support for the liquidation of Amagerbanken, which was declared bankrupt in February 2011. The aid is limited to what is necessary to facilitate an orderly (...)

The European Commission clears Danish support for the liquidation of a bank, as it provides for an orderly wind‑up of the bank and foresees sufficient safeguards to limit distortion of competition (Eik Bank)
University Luiss Guido Carli - GRIF (Rome)
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European Commission - DG COMP (Brussels)
"State aid: main developments between 1 May and 31  August 2011"* On 6 June 2011 the Commission cleared Danish support for the liquidation of Eik Bank, as it provides for an orderly wind‑up of the bank and foresees sufficient safeguards to limit distortion of competition. The bank, until 2010 (...)

Procedures

The Luxembourg Parliament enacts the 2011 Competition Act
NautaDutilh (Luxembourg)
1. On 30 June 2011, the Luxembourg Parliament (chambre des députés) has adopted a new Competition Act (loi relative à la concurrence). It is not excluded that it will have to pass a second vote round in Parliament but this is considered to be a formality. It will enter into force four months (...)

The Spanish competition commission adopts report on decree on access to legal profession (Access to legal profession)
European Commission
Spain: The Comisión Nacional de la Competencia (CNC) adopts Report on Royal Decree on Access to Legal Profession* On 29 June 2011, the CNC published its report on the Royal Decree 775/2011 of 3 June 2011 (Royal Decree) developing the principles set out in Act 34/2006 of 30 October 2006 (...)

The Tokyo District Court awards damages to the Japanese State in a bid-rigging case concerning the supply of jet fuel (Kosumo Sekiyu)
European Commission - DG COMP (Brussels)
I. Introduction In a judgment of 27 June 2011, the Tokyo District Court ordered nine oil companies to pay a total of 8.4 billion yen (104 million dollars at the time) to the Japanese State in restitution. The oil companies had violated the Japanese Antimonopoly Act by engaging in bid-rigging (...)

The UK OFT publishes guidance to help company directors understand their responsibilities under competition law
Linklaters (London)
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Linklaters (London)
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Linklaters (London)
On 27 June 2011, the OFT published guidance on how it will assess the extent of an individual director’s responsibility for infringements of competition law. Where a company has breached competition law, the OFT can apply to court seeking a competition disqualification order (“CDO”) against an (...)

The UK OFT issues revised guidance on how businesses can achieve compliance with competition law
Linklaters (London)
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Linklaters (London)
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Linklaters (London)
On 27 June 2011, the OFT published guidance on how it will assess the extent of an individual director’s responsibility for infringements of competition law. Where a company has breached competition law, the OFT can apply to court seeking a competition disqualification order (“CDO”) against an (...)

The UK OFT gives guidance for businesses and directors on competition law compliance
Allen & Overy (London)
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Allen & Overy (London)
This article has been nominated by the Business Steering Committee for the business category, anticompetitive practices category of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The OFT has published a package of materials aimed at helping (...)

The UK OFT publishes new guidance for businesses and directors setting standard for promoting competition law compliance
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. OFT Sets the Standard for Promoting Competition Law Compliance* The UK’s Office of Fair Trading should be applauded for making concerted efforts to promote competition law compliance. Today they published new guidance for businesses and (...)

US DoJ’s assistant attorney general announces closer antitrust cooperation between the US and Chinese enforcement agencies
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McDermott Will & Emery (Washington)
This article has been selected for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On June 24, 2011, Assistant Attorney General Christine Varney announced that the U.S. antitrust enforcement (...)

The US Supreme Court holds that a claim for monetary relief shall not be certified under Federal Class Actions Rule, if it is not secondary to obtaining an injunction or declaration (Wal-Mart Stores / Dukes)
Sheppard Mullin (Los Angeles)
Wal-Mart v. Dukes: Implications For Antitrust Class Actions* On June 20, 2011, the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, No. 10-277, holding that 1.5 million female Wal-Mart employees around the nation could not bring discrimination claims under Title VII of the (...)

The US Supreme Court reverses class action certification raising hurdles for antitrust collective redress cases (Wal-Mart Stores/Dukes)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
This article has been selected for the business category, general antitrust section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On June 20, 2011, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court handed down its decision (...)

The US DoJ and FTC conduct simultaneous independent antitrust investigations in the online search market (Google)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Google Investigation* After months of a rumors about government action against Google, there are reports that government agencies are begining to take action. On June 24, the Wall Street Journal reported that the FTC is primed to serve subpoenas on the internet giant. A July 19, 2011 (...)

The European Commission launches a public consultation on a draft guidance paper on quantifying harm in actions for damages based on breaches of the EU antitrust rules (Antitrust harm in civil cases)
European Commission
European Commission: Public Consultation on a draft Guidance Paper on quantifying Antitrust Harm in civil Cases* On 17 June 2011, DG Competition launched a public consultation on a draft Guidance Paper on “quantifying harm in actions for damages based on breaches of Article 101 or 102 TFEU” (...)

The French Criminal Supreme Court takes side in favour of the admissibility of the appeal by the Rapporteur général of the Competition Authority in a case concerning emails seizure (Orange)
Linklaters (Paris)
House searches carried out by the French competition authority (“Autorité de la concurrence”), a shared prerogative since 2009 with the Ministry of Finance & Economy (“DGCCRF”), are in principle governed by the Code of Criminal procedure. Furthermore, it has been held by the Supreme Court in (...)

The EU Court of Justice rules that EU law does not exempt leniency documents lodged with national competition agencies from requests for disclosure in private actions (Pfleiderer)
Morgan Lewis (London)
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Squire Patton Boggs (London)
On 14 June 2011, the European Court of Justice ("ECJ") ruled that EU law does not exempt leniency documents lodged with national competition agencies ("NCAs") from requests for disclosure in private actions. In a reference for preliminary ruling from a German court, Pfleiderer v (...)

The EU Court of Justice acknowledges the need to weigh the different interests at stake when granting access to documents containing leniency applications in the context of civil claims for damages, in line with US courts (Pfleiderer)
Callol, Coca & Asociados
The European Court of Justice has issued a Judgement (Decision of 14 June 2011, Pfleiderer, Case C-360/09) on a preliminary ruling from a national court, on a key matter regarding antitrust damages claims. The situation encountered by the national court, in essence, referred to a petition by a (...)

The Chinese State Council approves the official establishment of the Office of the State Council Anti-Monopoly Commission under the MOFCOM
China Competition Bulletin
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China Competition Bulletin
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Institute of American Studies
On 9 June 2011, the MOFCOM announced that the State Council had formally approved the official establishment of the Office of the State Council Anti-Monopoly Commission (AMC Office) under the MOFCOM. Mr. Yao Jian, spokesperson for the MOFCOM, said that the AMC Office has been situated within (...)

The Belgium Supreme Court rules on the exact scope of the "full jurisdiction" of the Brussels Court of Appeal in competition cases (Honda)
Sheppard Mullin (Brussels)
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Ideal Standard
1. Background Complaints and decision of the Belgian Competition Council Further to complaints lodged by twelve independent distributors of motorcycles before the Belgian Competition Council, five official importers of motorcycles (Honda, Suzuki, Ducati, Yamaha and Kawasaki) were condemned (...)

The Macedonian Competition Authority releases its liquefied petroleum gas market survey for 2010
University of Technology (Tallinn)
On 30 March 2011 the Macedonian Competition Authority (KZK) published the results of the sector inquiry evaluating the competitive conditions on the market for the wholesale and retail distribution of the liquefied petroleum gas (LPG) in 2010. This investigation was initiated in December 2010 (...)

The highest appellate court rejected the Turkish Competition Authority’s view on the appropriate amount of penalty for obstructing on-site investigations (Sodexho/Accor/Network)
King’s College (London)
The Turkish Competition Law includes two separate articles regulating two separate sanctions related to ‘hindering or complicating’on-site investigations. The wording of the law does not give any clear indication on whether there is a distinction between the scope of these two provisions. In (...)

Regulatory

The UK OFT launches new guidance to help businesses to comply with competition law (New competition law compliance materials)
European Commission
United Kingdom: The Office of Fair Trading (OFT) publishes new Competition Law Compliance Materials* On 27 June 2011, the OFT launched new guidance to help businesses comply with competition law. This coincides with the publication of the results of research showing business awareness of (...)

The French Competition Authority issues an opinion on the wholesale broadband market in the Antilles
French Competition Authority
Press Release published on the official website of the French Competition Authority. Concerned by the state of competition on the wholesale broadband Internet market in the French West Indies, the Autorité de la concurrence supports the project of the French Telecommunications and Posts (...)

The Swedish Market Court orders the incumbent postal operator to discontinue applying its sorting discount programme subject to a penalty payment (Posten AB, Bring CityMail Sweden)
European Commission
Sweden: Private Enforcement in Postal Sector On 6 June 2011, the Swedish Market Court (the Court) ordered Posten AB (Posten) to discontinue applying its sorting discount programme subject to a penalty payment of SEK 100 000 000 (€ 9 160 000). The case came before the Court as a private (...)

The Bulgarian Commission for the Protection of Competition proposes amendments to existing legislation regulating provision of textbooks free of charge
European Commission
Bulgaria: The Commission for the Protection of Competition (CPC) proposes Amendments to existing Legislation regulating Provision of Textbooks free of Charge* On 2 June 2011, the Commission on Protection of Competition (CPC) adopted an opinion on the Ordinance No. 5/2003 on the evaluation and (...)

Public sector

The Serbian Competition Authority adopts the guidelines on detection of bid rigging in public procurement
University of Technology (Tallinn)
On 9 June 2011 the Serbian Competition Authority (KZK) adopted the Guidelines on detection of bid rigging in public procurement. The Guidelines were modeled after the 2009 OECD Guidelines for fighting bid rigging in public procurement, which were designed to reduce the risks of bid rigging (...)

The Moldovan Competition Authority finds bid rigging practices in purchases of anti-diabetic medicines (Medicines Agencies)
University of Technology (Tallinn)
On 9 June 2011 the Moldovan Competition Authority (ANPC) established the existence of bid rigging practices at the public tenders organized by the Medicines Agency (AMED) for the purchase of anti-diabetic medicines. In Moldova the purchase of pharmaceuticals for the needs of public hospitals (...)

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