June 2012

Anticompetitive practices

The EU General Court reduces fine imposed on each undertaking in a case involving market sharing in the energy sector (GDF Suez / E.ON)
Van Bael & Bellis (Brussels)
On 29 June 2012, the EU’s General Court (“GC”) handed down its judgments on appeals brought by E.ON and GDF Suez against a Commission decision fining them for their involvement in a market-sharing agreement. In its judgments, the GC confirmed the previous Commission decision, but reduced the (...)

The UK Appeal Tribunal of the Rugby Football Union, composed of 3 QCs rules that provisions for Primacy of Tenure with three clubs exemption rule constitute an infringement of Articles 101(1) and 102 TFEU (London Welsh/RFU)
Blackstone Chambers
Competition law achieves fair play* The London Welsh decision provides a rare but telling example of competition law marching its way onto the field of professional sport. London Welsh won rugby union’s Championship in the 2011-12 season. This would, in ordinary circumstances, have entitled (...)

The Belgian Supreme Court upholds the severability of anticompetitive provisions in a distribution agreement (Bauer, Dubraco)
Université Catholique de Louvain
On June 28, 2012, the Belgian Supreme Court (Hof van Cassatie/Cour de Cassation) rendered a short judgment in a contractual dispute involving a distribution agreement entered into in 1993 by Bauer, a German manufacturer of compressors, and its Belgian distributor Dubraco. In essence, the (...)

The US Seventh Circuit Court of Appeal takes broad view of the foreign trade antitrust improvements Act (Minn-Chem / Agrium)
Paul Hastings (Washington)
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Paul Hastings (Orange County)
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Paul Hastings (Orange County)
Overview In a much-awaited decision, the Seventh Circuit has taken a broad view of the ability of U.S. courts to hear antitrust cases concerning alleged foreign cartel activity that plaintiffs contend has effects in the U.S. The Court’s ruling reviving a cartel case in the potash industry is (...)

The Danish Competition Council finds that TV-channels distributor violated a decision subject to conditions imposed against anti-competitive business terms (Viasat)
Danish Competition and Consumer Authority (Copenhagen)
Viasat violates a decision subject to conditions imposed by the Danish Competition Council in the case of Viasat’s business terms* On 27 June 2012, the Danish Competition Council decided that Viasat has violated a decision subject to conditions imposed by the Council in the case of Viasat’s (...)

A U.S. Court of Appeals potentially expands the extraterritorial reach of the U.S. antitrust laws (Minn-Chem v. Agrium)
Davis Polk & Wardwell (New York)
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Davis Polk & Wardwell (New York)
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Gibson Dunn (New York)
Introduction The U.S. Court of Appeals for the Seventh Circuit (the “Court”) recently potentially expanded the extraterritorial reach of the U.S. antitrust laws. Its unanimous en banc decision in Minn-Chem, Inc. v. Agrium Inc. (7th Cir. 2012) may make it easier for the Department of Justice (...)

The EU Commission fines producers of water management products € 13.7 M in sixth cartel settlement case (Flamco, Reflex and Pneumatex)
Van Bael & Bellis (Brussels)
On 27 June 2012, the European Commission announced that it had fined a number of producers of water management products a total of € 13.7 million for their involvement in an illegal price-fixing cartel in breach of Article 101 TFEU. In its Decision, the Commission found that three (...)

The EU General Court dismisses appeal against Commission’s re-adoption of carbonless paper cartel decision (Bolloré)
Van Bael & Bellis (Brussels)
On 27 June 2012, the General Court (“GC”) handed down its judgment on the appeal brought by French investment and industrial group Bolloré against the European Commission’s re-adoption of its decision in the carbonless paper cartel. The GC upheld the fine of € 21.26 million and ruled that the (...)

The EU Commission re-imposes € 131.6 M fine on Japanese companies over gas insulated switchgear cartel following General Court’s partial annulment (Mitsubishi and Toshiba)
Van Bael & Bellis (Brussels)
On 27 June 2012, the European Commission announced that it had re-imposed a € 131.61 million fine on Toshiba and Mitsubishi Electric, after last year’s General Court (“GC”) judgment partially annulling the original decision concerning these companies’ involvement in the gas insulated (...)

The UK Supreme Court rejects the respondent’s arguments that enforcement of the plaintiff’s trade marks could lead to infringements of EU law (Oracle America / M-Tech Data)
Blackstone Chambers
Supreme Court puts brake on “Euro defences”* The UK Supreme Court has given trade mark proprietors reason to celebrate, in a judgment which is likely to have important consequences for the success of “Euro defences” more broadly. See: Oracle America Inc (formerly Sun Microsystems Inc) v M-Tech (...)

The Danish Competition Council finds that satellite communication company had infringed conditions imposed by the Council concerning the distribution of its TV channels (Viasat)
European Commission (Brussels)
Denmark: Viasat infringes Conditions imposed by Competition Council’s Decision in Distribution of TV Channels Case* On 27 June 2012, the Danish Competition Council (the Council) found that Viasat had infringed the conditions imposed by the Council’s decision of 30 September 2009 on Viasat‘s (...)

A US Court of Appeal unanimously expands extraterritorial reach of US antitrust rules in a foreign price-fixing conspiracy case (Potash II)
Cleveland-Marshall School of Law
Seventh Circuit Sitting En Banc Reverses in Potash, Announces Second Most Important of All FTAIA Opinions, Shores Up the Text Messaging Position on Conspiracy Pleading* Well, okay, I guess there might just possibly have been an appellate decision this week of even more pressing moment, but I (...)

The Hong Kong Legislative Council finally passes a comprehensive competition law
Jones Day (Sydney)
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Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
After years of discussions, the Hong Kong Legislative Council finally passed a comprehensive competition law (the "HK Competition Law"). The HK Competition Law includes the classic prohibitions of anticompetitive agreements and abuses of market power, as well as a merger control regime (with (...)

The Hellenic Competition Commission finds a pharmacists association guilty of concerted agreements and grants interim measures (Pharmacists Association of Achaia)
European Commission - DG Internal Market and Services
Introduction On June 22, 2012 the Hellenic Competition Commission found the Pharmacists Association of Achaia, whose members are all the owners of pharmacies in Achaia, (hereinafter: PAA), the Pharmacists Union of Achaia and Islands (hereinafter: PUAI), Panagiota Karousos-Akrivi Asprogeraka (...)

The Supreme Administrative Court annuls decision on exchange of commercial information by dairies due to expiration of the limitation period (Dairies)
Valiunas Ellex (Vilnius)
Dairies case is a national precedent where a decision of a national competition authority on alleged infringement of competition rules - exchange of commercially sensitive information – by dairy companies was annulled by the court due to the fact that the national competition authority imposed (...)

The Lithuanian Supreme Administrative Court declares that provisions of the Code of administrative offences may not be applied on the basis of analogy in disputes related to competition law
Law firm of Raimundas Moisejevas (Vilnius)
Background On 28 February 2008, the Lithuanian Competition Council passed resolution in which it was recognized that a number of Lithuanian milk producers have committed the infringement of competition law, since the undertakings referred to above have been exchanging confidential information (...)

The Canadian Competition Bureau jointly lays 77 charges against 11 individuals and 9 companies in the construction industry in connection with a Quebec bid-rigging case (Carrière Bernier, Cie Wilfrid Allen)
Steve Szentesi Law Corporation
Competition Bureau Jointly Lays 77 Charges Against 11 Individuals and 9 Companies in Quebec Bid-rigging Case – Tough Stance on Criminal Enforcement Continues* On June 21, 2012 the Competition Bureau announced that, together with the Unité permanente anticorruption (UPAC) in Quebec, it has laid (...)

The Competition Commission of India imposes US$ 1.1 Billion penalty for price fixing (Cement Cartel Case)
Jones Day (Beijing)
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Gibson Dunn (Hong Kong)
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Jones Day (Tokyo)
India’s Competition Commission, which was established in 2003 and has been enforcing the cartel provisions of the law since 2009, has imposed fines of approximately US$ 1.1 billion against 11 internationally and locally owned cement manufacturers and their industry association for price fixing. (...)

The Indian Competition Commission breaks up a cement cartel and fines cartelists with a record fine of RPS 60 billion (Cement Manufacturers Association)
Computer and Communications Industry Association US (CCIA)
The Competition Commission of India (CCI) has fined eleven cement companies for fixing prices, and for limiting and controlling the output in the cement markets. The CCI has imposed record fines amounting to RPS 60 billion (approximately EUR 836 million) on the cartelists. Economic evidence, (...)

The U.S. Seventh Circuit Court of Appeals rules that an association may limit the number of available scholarships and place restrictions on those awarded without committing antitrust violations in the market for scholarships granted to student athletes (Agnew/NCAA)
University of Pennsylvania - The Wharton School of Management (Philadelphia)
Many of the most impactful cases in the history of sports law are antitrust based. Those cases range from a 1920s foundational case granting baseball’s antitrust exemption to the series of landmark cases evaluating the move by the Raider’s NFL franchise back and forth between Los Angeles and (...)

The Swedish Competition Authority accepts the commitments undertaken by office stationery supply chain not to indicate prices in a common marketing catalogue (Rationella Kontors Varuinköp)
Swedish Competition Authority (Stockholm)
Putting a stop to common catalogue prices The office supplies chain, RKV, has undertaken to stop having common catalogue prices for office requisites. This commitment resulted from a review conducted by the Swedish Competition Authority. The office supplies chain RKV (Rationella Kontors (...)

The EU Commission makes legally binding commitments offered by companies active in nuclear markets on post-JV non-compete and confidentiality obligations (Siemens / Areva)
Van Bael & Bellis (Brussels)
The European Commission announced, on 18 June 2012, that it had adopted a decision to make legally binding commitments offered by Siemens AG (“Siemens”) and Areva SA (“Areva”) to reduce the scope and duration of certain non-compete and confidentiality obligations imposed on Siemens further to (...)

The Hong Kong Government adopts its first comprehensive competition bill
CRA International (Washington)
Hong Kong passed its first comprehensive Competition Bill on June 14, 2012. With its passage, Hong Kong now has in place legislation to deal with price fixing, collusion, abuse of market power (akin to abuse of dominance in the EU and monopolization in the US), and merger review (although the (...)

The Spanish Competition Authority fines two iron wholesaler’s associations for illicit collusion (AAHE, UAHE)
European Commission (Brussels)
Spain: The Comisión Nacional de la Competencia fines two Iron Wholesalers’ Associations* On 14 June 2012, the Comisión Nacional de la Competencia (CNC) Council adopted a resolution in which it established that the Extremadura Iron Wholesalers’ Association (AAHE) and the Union of Iron Wholesalers (...)

The European Court of Justice specifies the regime of the quantitative selection criteria in a selective distribution system under the motors vehicle block exemption regulation (Auto 24/Jaguar Land Rover)
UGGC Avocats (Paris)
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UGGC Avocats (Paris)
After a referral by the French Supreme Court (“Cour de cassation”) for a preliminary ruling on 29 March 2011, the CJEU provides interesting answers to the question of control of selection criteria in a quantitative selective distribution system. French case law has given rise to discussions as (...)

The 7th Circuit US Court of Appeal reverses and remands with instructions to enter judgment for defendants a shareholders’ derivative suit alleging that a compagny violated Section 8 by having on its Board of Directors two individuals who also served on the boards of its competitors (Sears Roebuck & Co.)
Jones Day (Houston)
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Jones Day (Washington)
Although Section 8 of the Clayton Act, 15 U.S.C. § 19, which prohibits competing corporations from sharing directors or officers, is an important concern for the business community, the statute has received surprisingly little attention from government enforcers or judicial opinions in recent (...)

US Ninth Circuit affirms dismissal of antitrust action by atm cardholders due to lack of standing (ATM Fee Antitrust Litigation)
Chadbourne & Parke (New York)
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Chadbourne & Parke (New York)
The Ninth Circuit recently affirmed the decision of the United States District Court for the Northern District of California and held that automated teller machine (“ATM”) cardholders lacked standing to bring an antitrust class action against banks and former and current corporate owner-operators (...)

The Competition Commission of India fines an association of pharmaceutical distributors for price-fixing and limiting competition on the basis of the Competition Act (Varca Chemist and Druggist, Chemists and Druggists Association, Goa)
University of Delhi (New Delhi)
In two cases decided in 2012, the Competition Commission of India (CCI) found evidence of collusion amongst wholesale and retail distributors of pharmaceuticals in particular regions of India. We analyze one case (Varca Chemist and Druggist and others vs Chemists and Druggists Association, Goa) (...)

The US District Court for the Northern District of California denies motions for acquittal and for a new trial in LCD price-fixing conspiracy case (AU Optronics)
Wolters Kluwer (Riverwoods)
Convictions in LCD Panel Price Fixing Case Stand After Motions for Acquittal, New Trial Rejected* The government’s successful prosecution of AU Optronics Corporation, its wholly-owned U.S. subsidiary, and two former company executives serves as a cautionary tale. The case marks the first time a (...)

The Spanish Supreme Court confirms first follow-on claim for an infringement of antitrust rules against a cartel in the sugar sector (Spanish Sugar Cartel, TS Acor)
3C Compliance
I. Introduction The Spanish Supreme Court, Tribunal Supremo, issued on June 8, 2012 an important ruling about a follow-on damage claims that resulted from an infringement of the Spanish and European Cartel Prohibition. These claims were filed in the year 2007 before the local court of (...)

The Dutch Competition Authority lowers fines in construction and gardening cartels (Ballast Nedam, Vermeer and Ooms)
Van Bael & Bellis (Brussels)
According to a press release published on 8 June 2012, the Dutch Competition Authority (“NMa”) has lowered the fines it had earlier imposed in the construction cartel case and the gardening cartel case. The NMa’s decision to reduce the fines follows two decisions by the NMa’s College of (...)

The Spanish Supreme Court confirms the judgment of the Valladolid Provincial Court in the sugar cartel (Nestlé, Gullón, Zahor)
University of Castilla-La-Mancha (UCLM)
The judgment of the Spanish High Court of June, 8, 2012, is the first case in which the highest court in Spain provides for a redress of the victims of a cartel of 1.1 million Euros. The sugar manufacturer Acor had appealed the judgment of the Valladolid Provincial Court of October, 9, 2009, (...)

The Lithuanian Competition Authority established agreements concluded through a common third party breaching Art. 101 of the TFEU (Eturas)
Valiunas Ellex (Vilnius)
By its decision of 7 June 2012 the Lithuanian Competition Council (also referred to as the Council) established that as many as thirty travel agencies and an online booking system operator – UAB “Eturas” – had participated in an anticompetitive agreement of fixing the maximum discount rate for (...)

The Paris Commercial Court seeks the opinion of the French Competition Authority on the broadcasting rights for championship football matches (Ligue de Football professionnel)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Paris Commercial Court seeks the opinion of the Autorité de la concurrence on the compatibility with competition rules of the call for tenders the Ligue de Football Professionnel (LFP - French professional (...)

The Lithuanian Competition Council adopts a broad interpretation of concerted practices under national rules and art. 101 TFEU (E-TURAS)
Herbert Smith Freehills (Brussels)
This case note aims to illuminate the Lithuanian Competition Council’s (“CC”) decision No. 2S-9 which found a concerted practice between travel agents and the undertaking managing Lithuania’s online travel booking system E-TURAS. The conduct, held to violate Article 101 TFEU and its national (...)

The Lithuanian Competition Authority fines tours operators and travel agents for concerted practices relating to online sale of package tours (Eturas)
European Commission (Brussels)
Lithuania: The Competition Council imposes Fine of more than € 1 500 000 for Anti-competitive Practice relating to Online Sale of Package Tours* On 7 June 2012, the Competition Council of the Republic of Lithuania (the CC) adopted a decision in which 30 tour operators/travel agents were fined (...)

The Dutch Competition Authority imposes fines in two cartels in the agricultural sector (ZON, UWG and Rainbow)
Van Bael & Bellis (Brussels)
According to a press release published by the Dutch Competition Authority (“NMa”) on 5 June 2012, the NMa has imposed fines totalling € 23 million on a number of pepper growers’ co- operatives and on five shallot growers and processors for their involvement in two separate cartel agreements. (...)

The German Competition Authority fines manufacturers of fire-fighting vehicles (Albert Ziegler, Giengen an der Brenz, Schlingmann, Dissen, and the Rosenbauer Group)
Van Bael & Bellis (Brussels)
According to a press release of 18 February 2011, the German Federal Cartel Office (“FCO”) has imposed a total fine of € 20.5 million on three manufacturers of fire-fighting vehicles for their participation in a cartel, as well as on a Swiss accountant who assisted in operating the cartel. (...)

Unilateral Practices

The Swiss Supreme Court upholds fines against media sales and marketing services group in an abuse of dominance case (Publigroupe)
Université de Genève
In a much awaited decision, the Swiss Supreme Court dismissed an appeal directed against the decision of the Swiss Federal Administrative Tribunal confirming a fine of CHF 2.5 million (approximately € 2 million) imposed by the Swiss Competition Commission ("Comco") on Publigroupe for abuse of a (...)

The Slovak Competition Authority confirms competence with regard to regulated fees in energy sector (ZSE Distribúcia)
Diwok Hermann Petsche (Baker McKenzie Vienna)
Introduction The Council of the Slovak Competition Authority ("SCA") confirmed the first instance decision imposing a fine on ZSE Distribucia, a.s., Bratislava ("ZSE") for abuse of dominant position. The abuse of dominant position consisted in the charging of unreasonably high fees for (...)

The Danish Competition Authority adopts a commitments decision concerning the prevention of abusive behaviour of a news agency (Ritzau)
Danish Competition and Consumer Authority (Copenhagen)
Ritzau’s News Service* On June 27th 2012, The Danish Competition Council (DCC) has adopted a commitment decision, cf. Section 16a of the Danish Competition Act, to prevent competition restrictions in the Danish market for news services. The decision concerns the news agency Ritzau Bureau af (...)

The EU General Court upholds a periodic penalty payment imposed by the Commission on an undertaking for failing to share adequate interoperability information (Microsoft)
Blackstone Chambers
“Imprecise legal concepts” are no excuse* The second chapter of the Microsoft saga unfolded on 27 June 2012, when the General Court largely upheld the €899 million periodic penalty payment imposed on Microsoft for failing to share adequate interoperability information with its competitors. (...)

The Regional Administrative Tribunal of Lazio annuls the decision of the Italian Competition Authority which had fined national postal incumbent for an abuse of dominant position in the markets for liberalized value-added services (Poste Italiane)
Pirelli
The ICA’s decision On December 15, 2011, the Italian Antitrust Authority (hereinafter “ICA”) fined Poste Italiane S.p.A. (“Poste Italiane”), the incumbent operator in the postal sector in Italy, more than EUR 39 million for abusing its dominant position in the markets for liberalized value-added (...)

The Regional Administrative Tribunal of Lazio annuls the decision of the Competition Authority which had fined the incumbent postal operator for an abuse of dominant position in the markets for liberalized value-added services (Poste Italiane)
Pirelli
The AGCM’s decision On December 15, 2011, the Italian Antitrust Authority (Autorità Garante della Concorrenza e del Mercato, hereinafter "AGCM") fined Poste Italiane S.p.A. ("Poste Italiane"), the incumbent operator in the postal sector in Italy, more than EUR 39 million for abusing its dominant (...)

The Romanian Competition Authority finds no abuse of dominance in the absence of economic dependence in the bulk handling terminal services market (Comvex, Arcelor Mittal)
University of Technology (Tallinn)
On 22 June 2012 the Romanian Competition Authority (CC) concluded its investigation into the alleged abuse of dominant position on the bulk hanlding terminal services market. In the absence of the clearly defined situation of economic dependence between the parties and in the view of the (...)

The Italian Competition Authority closes case against telecom incumbent with commitments (Telecom Italia)
European Commission (Brussels)
Italy: The Italian Competition Authority closes Case against Telecom Italia with Commitments* On 19 June 2012, the Italian Competition Authority (ICA) decided to accept the commitments offered by Telecom Italia S.p.A. (Telecom Italia) in an abuse of dominant position case in which Telecom (...)

The Spanish Competition Authority fines copyright collecting societies for abusing of their dominant position (AGEDI, AIE)
European Commission (Brussels)
Spain: The Comisión Nacional de la Competencia fines Copyright Collecting Societies AGEDI and AIE* In its Resolution of 14 June 2012, the Comisión Nacional de la Competencia (CNC) Council declared that the Asociación de Gestión de Derechos Intelectuales (AGEDI) and Artistas, Intérpretes y (...)

The US District Court for the District of Minnesota dismisses an antitrust complaint on the basis that copyright owners may exclude others from using even portions of their work in the market for footage of professional football games (Washington/NFL)
Loeb & Loeb (New York)
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Loeb & Loeb (Los Angeles)
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Loeb & Loeb (Los Angeles)
Plaintiffs Gene Washington, Diron Talbert, and Sean Lumpkin, former professional football players, brought a class action suit against the National Football League and a number of affiliated entities, including each of the 32 NFL teams, alleging that the NFL defendants, by constraining (...)

The Italian Competition Authority publishes for market test the commitments of the incumbent electricity operator (Eni)
European Commission (Brussels)
Italy: Market Test of Commitments in alleged Abuse by ENI in Gas Transportation Case* On 12 June 2012, the Italian Competition Authority (ICA) published for market test the commitments proposed by Eni (Ente Nazionale Idrocarburi). In its commitments, Eni offered to auction off transportation (...)

The Hellenic Competition Commission imposes on Greek leading movie producer and distributor the obligation to supply movies to its economically dependent competitor (Odeon, Technopolis)
European Commission - DG Internal Market and Services
Facts In 2005 the company "ODEON ENTERPRISE OF PUBLIC ENTERTAINMENT S.A.", hereinafter ODEON, opened the multiplex cinemas ODEON TALOS in Heraklion of Crete, in Greece. In the same area another multiplex called TECHNOPOLIS CINE TSAGKARAKIS S.A., hereinafter TECHNOPOLIS, has been active since (...)

The Lithuanian Competition Council fines a retailer for unfair practices (Palink)
Max Planck Institute for Innovation and Competition (Munchen)
On 6 June 2012 the Competition Council imposed a fine on UAB “PALINK” for an infringement of Article 3(1) point 5 of the Law of the Republic of Lithuania on the Prohibition of Unfair Practices of Retailers. The competition authority held that UAB “PALINK” included in the standard contracts with the (...)

The Italian Antitrust Authority fines a retail chain for an abuse of dominant position consisting in a strategy aimed at opposing the opening of new outlets by a competitor (Esselunga/Coop Estense)
Legance - Studio Legale Associato
1. Facts The case concerned an alleged abuse of dominance carried out by a retail chain, Coope Estense, consisting in carrying out a systematic strategy aimed at opposing the opening of new outlets by a competitor, Esselunga. The relevant market was the market for the retail distribution of (...)

Mergers

The Antimonopoly Office of the Slovak Republic prohibits a merger in the bakery industry (Agrofert/Euro Bakeries)
Agency for the Cooperation of Energy Regulators (ACER) (Slovenia)
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Factual background By its decision No. 2012/FH/3/1/029 of 29 June 2012, the Antimonopoly Office of the Slovak Republic ("AMO") prohibited the concentration of undertakings Agrofert Holding a. s., Czech Republic ("Agrofert") and Euro Bakeries Holding, a. s., Czech Republic ("Euro Bakeries") (...)

The EU Court of Justice restricts access to Commission file in merger cases (Éditions Odile Jacob / Lagardère / Natexis VUP and Agrofert / PKN Orlen / Unipetrol)
Van Bael & Bellis (Brussels)
On 28 June 2012, the European Court of Justice handed down two judgments on appeals by the European Commission in cases concerning the disclosure to third parties of documents relating to proceedings under the EU Merger Regulation. The first case concerns the Commission’s refusal to (...)

The European Commission clears a merger between two Austrian mobile networks operators subject to remedies (Hutchison 3G / Orange Austria)
CRA International (London)
The long-standing discussion about how competition in telecom markets should be best managed (that is, through a mix of traditional regulatory mechanisms – like access price regulation – and ex-post competition policy) has recently drawn new life from the debate about the need to provide the (...)

The Dutch Competition Authority approves under strict conditions an acquisition of a retail service organization by its competitor (Intres / Euretco Holding)
VVGB
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VVGB
On the 27 of June 2012, the Dutch Competition Authority approved under strict conditions the acquisition of Intres B.V. by Euretco Holding B.V.. I. The Parties The Dutch undertaking Euretco Holding B.V., which is part of Avedon Capital Partners The Dutch undertaking Intres B.V. II. Facts (...)

The Italian Competition Authority authorizes with conditions the acquisition of certain assets of a shipping company by a company jointly controlled by a private equity firm and by another shipping company (Compagnia Italiana di Navigazione / Ramo di Azienda di Tirrenia di Navigazione)
Legance - Studio Legale Associato
1. The sale process of Tirrenia and the proceeding before the European Commission The present concentration concerns the sale of the main assets of the shipping company Tirrenia, previously controlled by the Italian State. Due to the economic and financial difficulties suffered by Tirrenia, on (...)

The Italian Competition Authority clears a merger between two major ferry companies by imposing a set of behavioural remedies (Compagnia Italiana di Navigazione, Tirrenia)
Desogus Law Office (Cagliari)
Introduction By a decision made on 21 June 2012 the Italian Competition Authority (ICA) has cleared the acquisition of the ferry service branch of the debt-stricken publicly owned ferry operator Tirrenia by Compagnia Italiana di Navigazione (CIN). The go-ahead for the transaction was made (...)

The Italian Competition Authority grants conditional clearance to the acquisition of control of its rival by an insurer (Unipol of Premafin/Fondiaria)
Pirelli
The notified transaction On 24 February 2012, Unipol Gruppo Finanaziario S.p.A. (hereinafter also "UGF"), a top player on the Italian insurance market, notified to the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, "AGCM") a transaction, called by the parties (...)

The Chinese MOFCOM approves US-based company’s takeover of a competitor with divestment in the production and sale of aviation equipment (United Technology Corp / Goodrich)
University of Melbourne
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China Competition Bulletin (Beijing)
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Institute of American Studies
On 15 June 2012, MOFCOM announced that it had conditionally approved the proposed USD 18.4 billion acquisition of Goodrich Corporation (Goodrich) by United Technology Corporation (UTC), both US-based companies active in the production and sale of aviation equipment on a worldwide basis. (...)

The UK Office of Fair Trading investigates a transaction above the EU Merger Regulation turnover thresholds (Ryanair / Aer Lingus)
Norton Rose Fulbright (London)
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Falcon & Hume
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Norton Rose Fullbright (Sidney)
In June this year, Ryanair, the Irish low-cost airline, launched a full takeover bid for Aer Lingus, the airline which has been the country’s national flag carrier. The European Commission is now examining the potential competition effects of that proposed takeover in a full “second-phase” (...)

The Turkish Competition Board unconditionally approves an acquisition in the markets for metal packaging coatings and metal decorating inks (Akzo Nobel / Metlac)
GlaxoSmithKline (Istanbul)
On 27 August 2012, the Turkish Competition Board (the “TCB”) made public the reasoning for its unconditional clearance decision on the acquisition of Metlac Holding S.r.l. (“Metlac Holding”) and its subsidiaries by Akzo Nobel Coatings Int. B.V. (“ANCI”), a transaction which has already been cleared (...)

The President of the Polish Office for Competition and Consumer Protection issues new guidelines on the assessment of notified concentrations
Orange (Warsaw)
After issuing the Guidelines on criteria and procedure for notification of the concentration intent, in which the President of the Office for Competition and Consumer Protection (the “OCCP President” or the “Authority”) clarified which undertaking is to notify the concentration and how notification (...)

The Serbian Administrative Court annuls the decision of the Competition Authority prohibiting a merger between the two largest sugar producers in the Republic of Serbia (Sunoko/Hellenic Sugar Industry)
Kinstellar (Belgrade)
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Kinstellar
On 8 June 2012, the Serbian Administrative Court (the "Court") annulled the decision of the Serbian Competition Authority (the "Competition Authority") prohibiting a merger between Sunoko d.o.o. Novi Sad, with its registered seat at Novi Sad, the Republic of Serbia ("Sunoko"), and Hellenic (...)

The Chinese MOFCOM issues a revised form relating to the notifications of concentrations of undertakings
University of Melbourne
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China Competition Bulletin (Beijing)
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Institute of American Studies
On 6 June 2012, MOFCOM issued a revised form for notifications of mergers and acquisitions and instructions for completing the form pursuant to China’s Anti-Monopoly Law (AML) and the relevant AML implementing regulations. The new form, replacing the current form that has been used since 5 (...)

State Aid

The EU Commission concludes that the aid in the land purchase was compatible with the internal market under the regional aid guidelines (Habidite Alonsogeti)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Exceptional Circumstances, Natural Disasters, Commercial Risk and Rights of Complainants* Reduced commercial risk: Commission Decision 2013/198 on aid to Habidite Alonsogeti (ES) Habidite Alonsogeti (HA) was involved in the construction of social (...)

The EU Court of Justice reaffirms the objective character of the notion of state aid finding that the private investor test remains applicable even in cases where the means employed by the state are not available to a private investor (EDF)
European Court of Justice (Luxembourg)
The EDF judgment of the CJEU in case C-124/10 P: towards a public investor test in EU State aid law?* On the 5th of June 2012, the Court of Justice of the EU (hereafter ‘CJEU’) delivered an important judgment in the field of European State aid law on the very notion of State aid and the (...)

Procedures

The UK OFT publishes its annual report 2011-2012
European Commission (Brussels)
United Kingdom: The Office of Fair Trading publishes Annual Report 2011-2012* On 28 June 2012, the Office of Fair Trading (OFT) published its Annual Report, including an estimate of the financial benefits of its activities to consumers. The report shows that last year the OFT achieved an (...)

The Canadian Commissioner of Competition, Melanie Aitken, announces she will resign in September 2012
Canadian International Joint Commission
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Canadian International Joint Commission
Melanie Aitken, Canada’s Commissioner of Competition, (“Commissioner”) announced on 28 June 2012 that she will resign on 21 September 2012. She has been Commissioner since 2009, and was scheduled to serve until 2014. In a statement released by the Competition Bureau (“Bureau”), which assists the (...)

The Bulgarian Commission on Protection of Competition adopts report on sunflower seeds and sunflower oil sector inquiry
European Commission (Brussels)
Bulgaria: The Commission on Protection of Competition adopts Report on Sunflower Seeds and Sunflower Oil Sector Inquiry* On 22 June 2012, the Commission on Protection of Competition (CPC) adopted a decision establishing the findings of the sector inquiry into the market for production and sale (...)

The Bulgarian Competition Authority publishes the results of the sector inquiry on the sunflower oil market
University of Technology (Tallinn)
On 22 June 2012 the Bulgarian Competition Authority (CPC) published the results of its sector inquiry into the market for sunflower seed and production and distribution of sunflower oil. The CPC’s ex officio investigation was initiated in February 2011 and was prompted by the unusually high (...)

A Dutch District Court reduces competition fine for breach of seal during ongoing competition investigations (Landelijke Huisartsen Vereniging)
Smeets Van Empel advocaten (Amsterdam)
Introduction The national society of general practitioners (Landelijke Huisartsen Vereniging, hereinafter “LHV”) was fined by the Dutch Authority for Consumers and Markets (hereinafter “ACM”) for a breach of a seal during ongoing competition investigations. In this case the District Court Rotterdam (...)

A German Regional Court approves seizure by Federal Cartel Office of audit documents prepared by external counsel
Van Bael & Bellis (Brussels)
By decision of 21 June 2012, the Regional Court of Bonn (“the Court”) upheld a decision by the Local Court of Bonn approving the seizure by the German Federal Cartel Office (“FCO”) of internal audit documents that had been prepared by external counsel at the premises of the appellant. The (...)

The Swedish Competition Authority initiates a sector inquiry by sending out a questionnaire to banks and fund management companies
European Commission (Brussels)
Sweden: The Swedish Competition Authority initiates Inquiry into Swedish Banking and Financial Sector* On 20 June 2012, the Swedish Competition Authority initiated a sector inquiry by sending out a questionnaire to banks and fund management companies. Competition in the Swedish banking market (...)

The Irish Parliament adopts a new competition act
European Commission (Brussels)
Ireland: Competition (Amendment) Act 2012 signed into Law* The Competition (Amendment) Act, 2012 which contains a number of provisions aimed at strengthening the enforcement powers of the Competition Authority was signed into law on 20 June 2012. The new Act commenced on 3 July 2012. With (...)

The Slovak Competition Authority hosts the fifth annual FTC-Eastern European Workshop on investigating methods and techniques
European Commission (Brussels)
Slovakia: Fifth Annual FTC-Eastern European Workshop on investigating Methods and Techniques* Investigation of anticompetitive agreements and abuses of dominant position were the topics of the Fifth Annual FTC - Eastern European Workshop held in Bratislava on 20 and 21 June 2012. (...)

The UK Ofcom publishes its report on measuring media plurality
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. Ofcom’s Report on Measuring Media Plurality – The Outstanding Questions* On 19 June, Ofcom published its report on the future of the media plurality rules. The process began in October last year, with the Culture Secretary, Jeremy Hunt (...)

The Osaka District Court orders the Japan Fair Trade Commission to submit documents in relation to a shareholder derivative suit (Sumitomo Electric)
Nishimura & Asahi (Tokyo)
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Nishimura & Asahi (Tokyo)
On July 15, 2012, the Osaka District Court ordered the Japan Fair Trade Commission (the “JFTC”) to submit (i) written statements of employees of Sumitomo Electric Industries (“Sumitomo Electric”) and (ii) Sumitomo Electric’s report to the JFTC in relation to the shareholder derivative suit against (...)

The Dutch Competition Authority initiates study on switching costs in financial services sector
European Commission (Brussels)
The Netherlands: The Competition Authority initiates Study on Switching Costs in Financial Services Sector* On 15 June 2012, the Netherlands Competition Authority (NMa) initiated a study on switching costs in the financial services sector. The aim of the study is to identify switching costs (...)

The Hellenic Competition Commission fines undertakings for obstructing dawn raids (Kaplanidis Mills and Association of Greek Flour Industries)
Van Bael & Bellis (Brussels)
On 14 June 2012, the Hellenic Competition Commission (“HCC”) announced that it has fined Kaplanidis Mills S.A. and the Association of Greek Flour Industries for obstructing on-site inspections carried out on the basis of suspicions of anticompetitive behaviour in the flour and grain sector. (...)

The United Kingdom Government announces the appointment of the new Chief Executive of the Office of Fair Trading
European Commission (Brussels)
United Kingdom: Clive Maxwell appointed new OFT Chief Executive* On 14 June 2012, Business Secretary Vince Cable announced the appointment of Clive Maxwell as Chief Executive of the Office of Fair Trading (OFT). Mr Maxwell officially took on the role on 1 July. Mr Maxwell succeeds the (...)

The Hong Kong Legislative Council introduces a cross-sector competition law regime
Norton Rose Fulbright (Hong Kong)
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Norton Rose Fulbright (Hong Kong)
On 14 June 2012, the Legislative Council adopted the Competition Ordinance, which introduces a cross-sector competition law regime in Hong Kong. Hong Kong is among the last jurisdictions in Asia to introduce a competition legislation of general application. The competition law map of the region (...)

The Quebec Court of Appeal upholds constitutionality of search and seizure pursuant to Canada’s Competition Act (Express Transaction Services)
Canadian International Joint Commission
,
Canadian International Joint Commission
Introduction On 13 June 2012 the Quebec Court of Appeal (the “Court of Appeal”) confirmed, in Express Transaction Services Inc v Canada (Attorney General) , the legality of a search conducted by the Royal Canadian Mounted Police (the “RCMP”) pursuant to an investigation into alleged fraud under (...)

US Ninth Circuit holds direct-purchaser antitrust plaintiffs lacked standing to seek damages for alleged antitrust price-fixing in the ATM services (ATM Fee Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
Having failed at obtaining federal standing to sue for damages under one exception to the Illinois Brick rule, the plaintiffs argued in the alternative that they had standing under the “ownership/control” exception to that rule. Again, the court disagreed. 686 F.3d at 756. The court found that (...)

The EU Parliament publishes an independent study voicing support for EU legislation on antitrust damages actions (Lear’s Report)
Van Bael & Bellis (Brussels)
An independent report commissioned by the European Parliament (“EP”) and published on 12 June 2012 has expressed strong support for plans for EU-level regulation aimed at encouraging the initiation of damages claims by consumers and small companies who wish to seek redress for harm caused (...)

The Bulgarian Competition Authority holds seminars for business community and public authorities
European Commission (Brussels)
Bulgaria: The Commission on Protection of Competition holds Seminars for Business Community and Public Authorities* On 12 June 2012 the Commission on Protection of Competition (CPC) held a seminar with business representatives, lawyers and competition experts, organized jointly with “Boyanov” (...)

The new Luxembourg Competition Council adopts its internal rules
NautaDutilh (Luxembourg)
Now that 2011 Competition Act (“Loi du 23 octobre 2011 relative à la concurrence”) has entered into force on 1 February 2012 and the composition of the new Competition Council (“Conseil de la concurrence”) is complete, the latter has adopted on 11 June 2012 its internal rules of procedure (published (...)

The Austrian Supreme Court rejects a request to seal electronic data collected during an inspection on the grounds that they were not covered by the scope of a search warrant (Polystyrolkartell II)
European Court of Justice (Luxembourg)
1. Introduction By order of 6 June 2012 in Case 16 Ok 2/12, the Austrian Supreme Court (acting as the highest appellate court in competition matters; Oberster Gerichtshof als Rekursgericht in Kartellrechtssachen) confirmed the first instance decision of the Vienna Cartel Court (...)

The UK’s Court of Appeal to decide Competition Commission’s powers in telecoms price control investigation (Everything Everywhere)
Squire Patton Boggs (London)
,
Jones Day (London)
A recent appeal by the UK’s mobile telephone operator, Everything Everywhere, to the UK’s Court of Appeal may lead to a change to the Competition Commission’s (CC) investigation powers in deciding telecoms price control matters in the future. CC investigation powers in telecoms price control On (...)

The Moldovan Supreme Court of Justice quashes the NCA decision concerning anticompetitive practices in the road transport sector and limits the NCA’s powers (Micora-Trans)
University of Technology (Tallinn)
On 6 June 2012 the Moldovan Supreme Court of Justice (CSJ) upheld the judgment issued by the Chisinau Court of Appeals (CAC) against the infringement decision of the Moldovan Competition Authority (ANPC) where the latter established the violation of the basic principles of competition (...)

The Portuguese Competition Authority hosts delegation from China Anti-monopoly Bureau of MOFCOM
European Commission (Brussels)
Portugal: The Competition Authority hosts Delegation from China Anti-monopoly Bureau of MOFCOM* On 6 June 2012, the Portuguese Competition Authority hosted a delegation from the Antimonopoly Bureau of the Ministry of Commerce (MOFCOM AMB) of the People’s Republic of China. High-level officials (...)

The Chinese National Development and Reform Commission and the Korean Fair Trade Commission sign a memorandum of understanding on anti-monopoly cooperation
University of Melbourne
,
China Competition Bulletin (Beijing)
,
Institute of American Studies
On 30 May 2012, China’s NDRC and Korea’s KFTC reached a MOU on antitrust cooperation. Mr Hu Zucai, Vice Chairman of the NDRC, and Mr Dongsoo Kim, Chairman of KFTC, signed the MOU in Beijing. The MOU establishes a long-term cooperation framework between the NDRC and the KFTC in eight areas. (...)

The US Third Circuit answers whether a distributor is a direct purchaser (Hypodermic Products Antitrust Litigation)
Cohen Milstein (Washington)
,
Cohen Milstein (New York)
In this judgment, the Third Circuit was asked to answer an increasingly common question in antitrust litigation in the medical industry: whether a distributor who purchases a product from a manufacturer, albeit pursuant to prices negotiated by a group purchasing organization at the behest of (...)

The Vilnius District Administrative Court upholds the Competition Council’s decision on a failure to respond to the request for information during the investigation (UAB, Plungės duona)
Max Planck Institute for Innovation and Competition (Munchen)
On 23 February 2012 the Competition Council imposed on UAB “Plungės duona” a fine of LTL 86 400 (approx. EUR 25 023) for having not responded in due course to the request for information during the investigation which the Competition Council carried out on the allegedly anti-competitive agreements (...)

The European Union and Switzerland set up the framework for possible future exchanges of information between their respective agencies
Bourgeois Avocats
Originally published in the ABA International Antitrust Bulletin 2012 Volume 4 under the title “New Competition Cooperation Agreement between the European Union and Switzerland: A second generation Agreement and a door opened towards confidential information exchange” Introduction No one (...)

Regulatory

A French Court of Appeal upholds court order banning a parapharmaceutical products price comparison advertising based on a non-significant sample and wrong data (Univers Pharmacie/Leclerc)
EDHEC Business School
The French mass retail group "Centres E. Leclerc", which remains a cooperative, is well-known for having continuously tried to make more concrete and visible its strategic goal ("To sell at the best price, the largest set of products and services, to make them accessible to as many as (...)

The Spanish Competition Authority publishes reports on proposed amendments to bylaws of several professional colleges
European Commission (Brussels)
Spain: The CNC publishes Reports on proposed Amendments to Bylaws of several Professional Colleges* Following the publication in April 2012 of its Report on Professional Colleges after the transposition of the Services Directive (see ECN Brief 3/2012), the Comisión Nacional de la Competencia (...)

Public sector

The EU Court of Justice leaves for the referring court to determine whether the procured material could be regarded as specially designed and developed for military purposes in order to decide on compliance with the duty to organize a tender procedure (Insinööritoimisto InsTiimi)
ClientEarth (Bruxelles)
Procuring military equipment under the public procurement directive* As one of the last bastions of purely national competence, trade in arms is excluded from the application of the Treaty rules. Article 346 TFEU provides that the Treaties do not preclude Member States to trade and procure war (...)

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