June 2014

Anticompetitive practices

The Moroccan Parliament adopts two complementary laws concerning competition rules (Law No 104-12 and Law No 20-13)
Moroccan competition Authority
« The views expressed herein are of the author and do not necessarily reflect the official position of the Moroccan Competition Authority » The competition’s regulation institutional architecture is expected to undergo a radical change in its structure. The first harbingers of this long-awaited (...)

The European Commission imposes €32 million fines in the canned mushrooms cartel (Lutèce, Prochamp and Bonduelle)
Clifford Chance (Madrid)
The infringement The European Commission ("Commission") sanctions three producers of canned mushrooms, Lutèce, Prochamp and Bonduelle, for participating in a cartel and imposes fines amounting to €32.2 million. The cartelists exchanged confidential information on tenders, set minimum prices, (...)

The Spanish Competition Authority fines fire extinguisher producers over 2 million Euro for price fixing and market sharing (Equipos c. Incendios)
European Commission - DG COMP (Brussels)
On 26 June 2014, the Spanish National Markets and Competition Commission (“CNMC”) imposed a fine of over €2 million on six fire extinguisher producers . The CNMC initiated its investigation following a leniency application filed on 26 July 2012 by TODOEXTINTOR S.L, one of the fire extinguisher (...)

The EU Court of Justice upholds the expansive geographic reach of a European Commission dawn raid decision in a cartel investigations (Nexans)
Jones Day (Brussels)
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Jones Day (Brussels)
The European Court of Justice (ECJ) has upheld the expansive geographic reach of a European Commission dawn raid decision in the electric cables cartel investigations. Nexans, one of ten companies being investigated, had argued that the geographic scope was overbroad and provided an (...)

The European Commission adopts revised safe harbor rules for minor agreements and provides guidance on "by object" restrictions of competition
Jones Day (Brussels)
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Jones Day (Brussels)
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Jones Day (Amsterdam)
The European Commission has published revised safe harbor rules for agreements that are not deemed to appreciably restrict competition. This is the so-called "De Minimis Notice," the first version of which dates back to 2001. At the same time, the Commission also published guidance on the (...)

The EU Commission releases its revised de minimis notice explaining that agreements having as their object the prevention, restriction or distortion of competition within the internal market fall outside the scope of the notice
Primerio
Plus ça change, plus c’est la même chose: Revised EU de minimis notice retains % thresholds, clarifies per se rule* Nothing new: The newly-revised de minimis notice of the European Commission isn’t that novel The revised Notice (after its 1997 and 2001 predecessors) retains the 10% and 15% (...)

The English High Court dismisses a competition law challenge to a disciplinary rule imposing sanctions for actions assessed to be inimical to the sport (Baker / The British Boxing Board of Control)
Blackstone Chambers
Avoiding the clinch: judicial respect for the rules inherent to sport* In a recent bout in the High Court, the specificity of sporting disputes once again came to the fore. In Bruce Baker v British Boxing Board of Control [2014] EWHC 2074 (QB), 25 June 2014, Sir David Eady was faced with the (...)

The Danish Competition Council orders the franchisees and the franchisor to stop the passive sales, price fixing and market sharing infringements on the market for robotic milking systems and the adjacent markets (Lely Scandinavia / Danish Lely Centres)
Danish Competition and Consumer Authority (Copenhagen)
Franchise chain has fixed selling prices and shared markets of supply with respect to milking robots* On 25 June 2014, the Danish Competition Council (DCC) ruled in a case concerning anticompetitive behavior regarding the market for milking systems, the market for repair and maintenance of (...)

The Russian Competition Authority fines Norwegian fish suppliers for cartel (SK Ryba)
Russian Federal Antimonopoly Service
FAS fined all members of a cartel of Norwegian fish suppliers* On 24th June 2014, the Federal Antimonopoly Service (FAS Russia) held “SK Ryba” Ltd. administratively liable under Part 1 Article 14.32 of the Code of the Russian Federation on Administrative Violations and fined the company 8.3 (...)

The Austrian Cartel Court adopts several decisions imposing fines for vertical restrictions including RPM and restrictions of online sales (Pioneer Electronics / Media-Saturn / Hans Lurf / SSA Fluidra Grundig)
European Commission
Austria: Fines imposed for Vertical Restrictions and Restrictions of Online Sales* Since March 2014, the Cartel Court adopted several decisions imposing fines for vertical restrictions including RPM and restrictions of online sales infringing Article 101 TFEU and § 1 Austrian Cartel Act: a (...)

A US Court deals with a complaint based on an allegation of anti-competitive restrictions preventing payments to players for use of their name, image, and likeness (O’Bannon / NCAA)
Womble Carlyle Sandridge & Rice (Charlotte)
Three Questions for the Third Week of the O’Bannon v. NCAA Trial* As the O’Bannon v. NCAA trial enters its third week, commentators are already predicting the fall of the “college sports cartel.” In the case, a group of about 20 current and former college men’s basketball and football players, led (...)

The Hungarian Competition imposes fines for exchange of information via market research services concerning the individual sales volumes for contact lenses (CooperVision Optikai Cikkeket Forgalmazó)
Hungarian Competition Authority (Budapest)
Restrictive agreements on the market of contact lenses* The Hungarian Competition Authority (Gazdasági Versenyhivatal - GVH) decided that CooperVision Optikai Cikkeket Forgalmazó Kft., FOTEX-OFOTÉRT Optikai és Fotócikk Kereskedelmi Kft., Johnson Johnson Egészségügyi és Babaápolási Termékeket Gyártó (...)

A US District Court reaffirms that under the Capper-Volstead Act farmers may cooperate to collectively market their products, though the output limitation obtained by concerted action remains precluded by the Sherman Act (Cal-Maine Foods)
Sheppard Mullin (Los Angeles)
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Sheppard Mullin (San Francisco)
Of Characterization and Common Sense: Court Holds That Erroneous Interpretation of Allegations of Complaint Doom Counterclaim to Bottom of Chicken Coop* In In Re Processed Egg Products Antitrust Litigation, No. 2:08-Md.-02002-GP (E.D. Pa., June 10, 2014), the plaintiffs alleged that they (...)

A US District Court denies motion to dismiss the complaint finding insufficient arguments to warrant a dismissal of the claims on per se tying and block-booking on the market for cable television (Cablevision / Viacom International)
Womble Carlyle Sandridge & Rice (Charlotte)
Suit Challenging Cable Bundling Survives Motion to Dismiss* Cable subscribers, tired of being forced to purchase more obscure channels like VH1 Classic and Teen Nick in order to get their nightly Daily Show fix on Comedy Central, should be encouraged by a recent antitrust decision out of the (...)

The South African Competition Commission issues the terms of reference for the liquefied petroleum gas sector
Nortons Incorporated
Second market inquiry focuses on energy sector (LPG)* “Highly regulated” liquefied petroleum gas at center of second sectoral Commission inquiry According to the South African Competition Commission, the agency has issued “Terms of Reference for the market inquiry into the Liquefied Petroleum (...)

The European Court of Justice accepts the application of a strict presumption under EU law providing for the liability of a parent company, which holds all of a subsidiary’s capital shares (FLS Plast A/S)
King’s College (London)
On June 19, 2014, in FLS Plast A/S v European Commission the European Court of Justice considered application of a strict rebuttable presumption under EU Law, which provides for a parent company to be held liable for its subsidiary’s anti-competitive market conduct, where the parent company (...)

The Australian Competition and Consumer Commission grants interim authorisation to enable taxi operators organised in cooperative networks to make and give effect to agreements within the same co-operative network as to the maximum fares charged for booked and contracted work
Australian Competition and Consumer Commission
ACCC permits Victorian country taxi co-ops to agree prices in the short term* The Australian Competition and Consumer Commission has decided to temporarily exempt Victorian country taxi operators working in co-operatives from competition laws so they can agree the maximum prices for their (...)

The Polish Court for the Competition and Consumer Protection reduces severe penalty imposed by the Competition Authority for obstructing inspections during a dawn raid (Polkomtel)
Affre i Wspólnicy
On 18 June 2014, the Polish Court for the Competition and Consumer Protection (“SOKiK”) changed the decision issued by the President of the Office of Competition and Consumer Protection (“NCA”) in which Polish mobile telecom operator (Polkomtel) was fined for non-cooperation in the course of a dawn (...)

A Frankfurt Court condemns a general ban on sales over third party Internet platforms and the use of price comparison sites (Deuter)
Van Bael & Bellis (Brussels)
According to a recently published judgment of the lower regional court of Frankfurt (the “Court”) of 18 June 2014, a general ban on sales by distributors over third party Internet platforms and a prohibition on the use of price-comparison sites constitutes a hardcore restriction of competition (...)

The Competition Commission of Mauritius recommends the imposition of financial penalties and additional remedies against a market sharing agreement on the domestic market for beer supply (Phoenix / Stag)
Primerio
Beer cartels: first fine sought in mauritius leniency matter* Precedential leniency case yields initial fine The Competition Commission of Mauritius (“the Commission”) has recommended fines of approximately €487,000 and €158,000 be imposed on Phoenix Beverages Ltd (PLB) and Stag Beverages, (...)

The Australian Competition and Consumer Authority grants authorisation for a joint tender for the supply of organic waste processing services (Metropolitan Melbourne Waste Management Group)
Australian Competition and Consumer Commission
ACCC grants authorisation to Melbourne councils for joint organic waste tender* The Australian Competition and Consumer Commission has granted authorisation for Metropolitan Melbourne Waste Management Group and eight metropolitan Melbourne councils to jointly tender and enter into contracts (...)

The UK Southwark Crown Court allows reporting of the fact that at an earlier hearing the accused pleaded guilty to the charge of criminal cartel offence (Peter Nigel Snee)
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. The First Real Test of Sentencing for the UK Cartel Offence* A former managing director charged with the UK’s cartel offence has pleaded guilty to the criminal offence of price fixing. Peter Nigel Snee pleaded guilty to fixing the price (...)

A US District Court receives notification that the class plaintiffs, state plaintiffs and the defendant have reached an agreement concerning the lawsuit in the e-books prices fixing case (Apple)
DLA Piper Weiss-Tessbach (Vienna)
Apple settles with U.S. states and consumers in the e-books price fixing case* According to documents filed in a New York court on 16 June 2014, Apple has reached an agreement in principle with state governments and consumers who filed a class-action lawsuit in the e-books price fixing case (...)

The Athens Administrative Court of Appeals totally annuls a fine imposed by the Hellenic Competition Commission based on mitigating factors (Unilever Hellas)
Gerakini Legal Studio
On June 2014, the Athens Administrative Court of Appeals issued decision number 3807/2014 annulling a fine imposed by the Hellenic Competition Commission (HCC) on Unilever Hellas for engaging in conduct to restrict parallel imports. Brief History In short, the HCC, in the context of an ex (...)

The South African Competition Tribunal asks for a submission on reasons for approving the cartel settlement and expresses doubts as regards the low level of fining (Premier Fishing)
Nortons Incorporated
Appellate competition body questions authority’s lenient fine* Tribunal expresses doubts as to lenient fining level of Premier Fishing The chairman of the South African Competition Tribunal, Takalani Madima, has asked the South African Competition Commission and Premier Fishing for ‘detailed (...)

The Federal Court of Australia files an application seeking to challenge compulsory examination notices being part of an antitrust investigation into allegations of cartel conduct regarding a tender process for an exploration mining licence (Paul and Moses Obeid)
Australian Competition and Consumer Commission
Moses and Paul Obeid issue court challenge to ACCC examination notices* In response to media inquiries, the ACCC confirms that an application has been filed in the Federal Court of Australia which seeks to challenge compulsory examination notices issued by the ACCC to Paul and Moses Obeid (...)

The European Court of Justice rules that national law may not a priori exclude claims against cartel participants for the compensation of the loss caused by the “umbrella effect” of the cartel (Kone)
Philippe & Partners (Brussels)
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I. The Parties The Austrian elevator cartel: In October 2008, the Austrian Supreme Court (“Oberster Gerichtshof”) approved the Austrian Cartel Court’s imposition of fines on five companies in the Austrian elevator industry (Schindler was fined € 25 million, Kone € 22.5 million, Otis € 18.2 million, (...)

The EU Court of Justice holds that Member States cannot block claims for compensation by victims of umbrella pricing caused by the presence of a cartel on the market for elevators (Kone)
EFTA Surveillance Authority
Case C-557/12 Kone AG: Cartels, damages and “umbrella pricing”* The Court of Justice’s judgment in Case C-557/12 Kone AG and Others v ÖBB-Infrastruktur AG is an important landmark in reinforcing the efficacy of EU antitrust law. The Court holds that Member States cannot block claims for (...)

The EU Court of Justice deals with the question to what extent the cartelists are required to compensate the higher price charged not just by the members of the cartel, but also by other competitors (Kone)
University of Groningen
The Kone case and the lifts cartel – an upward effect on prices and effectiveness?* On June 5 the Court has handed down the eagerly awaited judgment in the Kone case. This is one of the several cases that result from the Commission’s decision finding a cartel in the elevators and escalators (...)

The EU Court of Justice allows an interpretation of the matter of civil liability according to which a cartel member may be kept liable for damages caused by umbrella pricing (Kone / ÖBB)
Hausfeld (London)
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Quinn Emanuel Urquhart & Sullivan (London)
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Hausfeld (London)
Greater scope for cartel damages recovery following the Court of Justice’s ruling that cartelists are liable for “umbrella” damages resulting from the higher prices paid to non-cartelists* On 5 June 2014, the Court of Justice of the European Union (ECJ) clarified the full extent of cartel damages (...)

The EU Court of Justice rules that cartel members are liable for ’Umbrella Claims’ (Kone)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Dentons (Brussels)
In a judgment that may expand civil damage liability for cartel participants significantly (Case C-557/12, Kone AG and Others, judgment of June 5, 2014), the European Court of Justice (the ECJ) has ruled that a cartel’s members are liable for “umbrella damages,” which are caused by price increases (...)

The Australian Competition and Consumer Commission reminds the airline industry that despite the new competitive challenges and undergoing significant changes taking place on these markets, the involvement in cartel agreements will remain strictly monitored
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). On 4 June 2014, ACCC Commissioner Dr Jill Walker spoke at the Swinburne Aviation Industry Conference on competition issues in the Australian aviation sector. Dr Walker’s speech is a timely (...)

The US DoJ opens a review of the consent decrees in the music industry and expects comments on the competitive concerns that arise from the joint licensing of music by performance rights organizations and the remediation of those concerns
Sheppard Mullin (New York)
Department of Justice Opens Review of ASCAP and BMI Consent Decrees* The Antitrust Division of the Department of Justice announced in June 2014 that it has opened a review of the 73-year-old ASCAP and BMI Consent Decrees. In its press release, the DOJ noted that it is most interested in (...)

The ACCC Commissioner emphasizes that airline alliances and code-sharing may promote efficient and competitive markets, but they also raise competition concerns
Australian Competition and Consumer Commission
Competition issues at the forefront in aviation* Competition issues have featured prominently in the rapidly changing aviation sector, ACCC Commissioner Dr Jill Walker said today at the Swinburne Aviation Industry Conference in Melbourne. “The competitive landscape in the airline market has (...)

A US Court of Appeals rejects antitrust claims finding that the injury preceded any domestic effect in the causal chain (Lotes / Hon Hai Precision Industry)
Wolters Kluwer (Riverwoods)
Second Circuit Clarifies Application of Foreign Trade Antitrust Improvements Act* The U.S. Court of Appeals in New York City on June 4 ruled that the Foreign Trade Antitrust Improvements Act (FTAIA) barred the antitrust claims of a Taiwanese electronics manufacturing company with facilities in (...)

A US District Court files an antitrust action against a boycott impeding private schools to compete on the markets for commercial exhibition of high school football contests and basketball contests in Virginia (Liberty Christian Academy / VHSL)
Womble Carlyle Sandridge & Rice (Washington D.C.)
Do Public School Athletic Leagues Have To Admit Private High Schools?* Liberty Christian Academy (LCA), a private high school in Lynchburg, Virginia, has filed an antitrust action against the Virginia High School League (VHSL), a non-profit organization of public high schools in Virginia. The (...)

Unilateral Practices

The Finnish Competition and Consumer Authority issues report on collective management organisations and the promotion of healthy competition on the copyrighted works market (Teosto / Gramex / Kopiosto / Tuotos)
Finnish Competition and Consumer Authority (FCCA)
Finnish Competition and Consumer Authority: Numerous problems on the copyright market* The ambiguity of the legislation and the complexity of the market serve to fortify the monopoly of the collective management organisations on the market, says the Finnish Competition and Consumer Authority (...)

The Lithuanian Competition Council finds that the difference between the terms and conditions of channel distribution rights sold to analogue and digital television providers does not impede competition or significantly influence consumer welfare (Viasat World)
Lithuanian Competition Authority (Vilnius)
Competition Council: Viasat conduct does not impede competition* Competition Council (KT) terminated investigation into suspected abuse of dominance by Viasat World Limited and Viasat AS. The KT held that the actions carried out by the companies influence neither effective competition nor (...)

The South African Competition Commission investigates abuse of dominance on the market for visa support services to foreign embassies (VFS Global)
Nortons Incorporated
Costly COMESA Courthouse, za investigates visa provider & holds ground on Sasol fine LOTS AAT news this Monday, from Sudan/COMESA to South Africa. Visa facilitator backed by one branch of government & investigated by another In substantive antitrust news, the South African Competition (...)

The Finnish Market Court rejects the appeal and imposes the fines proposed by the FCCA for abuse of dominant position in the production and wholesale market of fresh milk (Valio)
Finnish Competition and Consumer Authority (FCCA)
FCCA satisfied with Market Court ruling on Valio By a decision issued on 26 June, the Market Court rejected Valio’s appeal and imposed on the company a €70m fine proposed by the Finnish Competition and Consumer Authority (FCCA) for abuse of dominant position in the production and wholesale (...)

The Moscow Arbitration Appeal Court confirms the legitimacy of a warning delivered by the Russian Competition Authority to a pharmaceutical company having abused of its dominance (Novo Nordisk)
Russian Federal Antimonopoly Service
Appeal Court confirmed legitimacy of FAS warning to “Novo Nordisk”* On 23rd June 2014, the 9th Arbitration Appeal Court dismissed the appeal of “Novo Nordisk” Ltd. on a judgment of Moscow Arbitration Court that supported a FAS warning issued to “Novo Nordisk” Ltd. with regard to some elements of (...)

The Tokyo District Court denies a claim of abuse of dominance in the optical fiber data service market (SB/ NTT)
McDermott Will & Emery (Brussels)
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Anderson Mori & Tomotsune (Tokyo)
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Anderson Mori & Tomotsune (Tokyo)
I. Introduction On 19 June 2014, the Tokyo District Court (“Court”) denied SB’s challenge that NTT (i) abused its superior bargaining position or (ii) engaged in unjust refusal, by bundling optical fibre data services and only allowing SB to lease fibre circuits in a bundle of eight . The Court (...)

The Competition Council of the Republic of Lithuania terminates an investigation on compliance of actions with Article 7 of the Law on Competition and Article 102 TFEU (Viasat)
Max Planck Institute for Innovation and Competition (Munchen)
On 19 June 2014 the Competition Council terminated the investigation on an alleged abuse of a dominant position (Article 7 of the Law on Competition, Article 102 TFEU) by the actions of the TV channels distributors Viasat World Limited and Viasat AS . Originally, the investigation was started (...)

The Russian Competition Authority gives its position on a dispute between vaccine producers (GlaxoSmithKline / Pfizer)
Russian Federal Antimonopoly Service
FAS position on a dispute between vaccine producers* The Federal Antimonopoly Service completed surveying product boundaries of the market of pneumococcal vaccines for children aged from 1.5 month to 5 years. The analysis was initiated upon two mutually exclusive petitions from vaccine (...)

The European Commission receives an antitrust complaint concerning patent licensing practices engaged by an owner of numerous standard-essential patents on telecommunications standards (ZTE / Vringo)
DLA Piper Weiss-Tessbach (Vienna)
ZTE files antitrust complaint with the European Commission against the patent-licensing practices of Vringo* On 18 June 2014 ZTE Corporation (ZTE) announced that it filed an antitrust complaint with the European Commission against Vringo Inc.’s (Vringo) patent-licensing practices. ZTE alleged (...)

The French Competition Authority fines a mobile phone operator and its subsidiary for implementing discriminatory prices for calls to its competitors’ networks in the overseas territory market (SFR and SRR)
French Competition Authority
Press release published on the official website of the French Competition Authority. The Autorité de la concurrence fines SFR and its subsidiary in La Réunion SRR nearly 46 million euros.* The Autorité de la concurrence has today issued a decision whereby it has imposed a fine of 45.9 million (...)

The EU General Court upholds Commission’s decision imposing a fine on a manufacturer for restricting competition and foreclosing competitors by granting exclusivity rebates in the market for computer processors (Intel)
European Commission - DG COMP (Brussels)
The views expressed in this memo are those of the author’s, and do not reflect the opinions of other CRA experts, or CRA’s clients. A test-case for the effects-based approach In a long-awaited ruling, General Court judgment has confirmed the Commission’s 2009 Intel décision. The Commission’s (...)

The EU General Court upholds the Commission’s decision finding that it had correctly demonstrated the anti-competitive nature of the exclusivity rebates granted by global manufacturer of computer processors (Intel)
DLA Piper Weiss-Tessbach (Vienna)
General Court upholds the EU Commission’s decision against Intel* On 12 June 2014 the General Court published its decision in the Intel case thereby upholding the Commission’s 2009 decision finding that Intel had abused its dominant position and imposed a fine of EUR 1.06 billion. On 13 May (...)

The EU General Court upholds the European Commission’s decision regarding exclusivity rebates on the microprocessor market (Intel)
Dentons (Brussels)
Introduction On 12 June 2014 the General Court issued a judgment upholding in its entirety the European Commission’s decision of 13 May 2009 imposing a fine of €1.06 billion on Intel for abusing its dominant position in the market for x86 central processing units ("CPUs"). In its ruling on the (...)

The EU General Court provides an in-depth analysis of the anti-competitive character of the matter of exclusivity rebates offered to the OEM partners (Intel)
EFTA Surveillance Authority
Case T-286/09 Intel : Characterisation of rebates* It is time to get deeper into the frenzy of the judgment in Case T-286/09 Intel which we summarised very quickly here in our first post on the case. Let us start by looking at the characterisation of rebate schemes by the General Court. The (...)

The EU General Court holds that the exclusivity rebates by their nature are capable of restricting competition and foreclosing competitors from the market for computer processors (Intel)
EFTA Surveillance Authority
Case T-286/09 Intel v Commission: Exclusivity rebates and abuse of a dominant position* Right then, folks, brace yourselves…. The much awaited judgment of the General Court in Case T-286/09 Intel v Commission EU:T:2014:472 came out today. It’s a whopper ! 255 pages. Summarising it is reminds me (...)

The EU General Court holds that a duty to procure specific documents might be imposed on the Commission at the request of an undertaking which is the subject to an antitrust investigation under certain circumstances (Intel)
Mircea & Partners (Bucharest)
Access to documents not to be found in the Commission’s possession I. Background The Intel Cases have occupied the international arena of antitrust litigation for the past ten years and a definitive resolution has not been reached yet. The administrative proceeding initiated by the Commission (...)

The General Court upholds in its entirety the European Commission’s decision imposing a fine on a microprocessor manufacturer for abusing a dominant position in the market for desktop and laptop microprocessors (Intel)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Skadden, Arps, Slate, Meagher & Flom (Brussels)
In a long-awaited judgment issued on June 12, 2014, the General Court upheld in its entirety the European Commission’s May 13, 2009, decision imposing a fine of €1.06 billion ($1.5 billion) on Intel for abusing a dominant position in the market for x86 CPUs. In particular, the court upheld the (...)

The EU General Court upholds the Commission decision in consideration of two exclusionary practices on the market for supply of CPUs, opening the door to a further appeal to the CJEU and to a possible application before the ECtHR (Intel)
European Procurement Law Group
Could Intel challenge its 1bn Euro fine on grounds of ’corporate human rights’* After last week’s General Court Judgment in Intel v Commission, T-286/09, EU:T:2014:475, the 2 month period for Intel to appeal the confirmation of its 1bn Euro fine before the Court of Justice of the EU on points of (...)

The Hungarian Competition Authority accepts commitments concerning changes made to the gas oil wholesale listed prices in relation to an allegation of abuse of dominance (MOL)
Hungarian Competition Authority (Budapest)
GVH has accepted commitments offered by the MOL* The Gazdasági Versenyhivatal (GVH, the Hungarian Competition Authority) has accepted commitments offered by MOL Magyar Olaj-és Gázipari Nyrt (MOL – the Hungarian Oil Company). According to the commitments, in the next 5 years the changes made to the (...)

The Australian Competition and Consumer Commission issues its ninth report assessing cross-subsidy between the services provided by domestic postal service provider (Australia Post)
Australian Competition and Consumer Commission
ACCC report finds no cross-subsidy in Australia Post* The Australian Competition and Consumer Commission has issued its ninth report assessing cross-subsidy between the services provided by Australia Post. The ACCC uses information provided by Australia Post in accordance with ACCC (...)

The Australian Competition and Consumer Commission reauthorises arrangements for the acquisition and licensing of performing rights in music, subject to certain conditions (APRA)
Australian Competition and Consumer Commission
ACCC requires improved dispute resolution in performing rights arrangements* The Australian Competition and Consumer Commission has reauthorised the Australasian Performing Right Association’s (APRA) arrangements for the acquisition and licensing of performing rights in music, subject to (...)

The Italian Administrative Court of first instance order the recommencement of the awarding of a public selection procedure for a breach of competition rules in the maritime sector (Marworld Ship Management and Services, Alilauro, Snav and Rifim)
University of London - School of Economics Birkbeck College
On the 5th of June 2014, the Italian Administrative Court of first instance (the “Court”) held a judgment against the Joint-venture formed, inter alia, by Snav S.p.A. and Rifim S.r.l., the Joint-venture formed, inter alia, by Marworld Ship Management and Service S.p.A., and the operator Alilauro (...)

The South African Competition Tribunal imposes fines for domestic excessive pricing of purified propylene and polypropylene (Sasol)
Nortons Incorporated
Costly COMESA Courthouse, za investigates visa provider & holds ground on Sasol fine LOTS AAT news this Monday, from Sudan/COMESA to South Africa. Visa facilitator backed by one branch of government & investigated by another In substantive antitrust news, the South African Competition (...)

The Portuguese Competition Court upholds a Competition Authority decision fining a TV operator for abuse of dominant position (Sport TV)
European Commission
Portugal: The Competition Court upholds Competition Authority Decision fining Sport TV for Abuse of Dominant Position* On 4 June 2014, the Competition, Regulation and Supervision Court (the Court) upheld a decision of the Portuguese Competition Authority (PCA) finding that Sport TV had abused (...)

The US antitrust enforcing agencies hold a one-day public workshop to explore the economics and legal policy implications of certain pricing practices, such as loyalty and bundled pricing
University of Michigan
FTC/DOJ Workshop on Conditional Pricing Practices – Good as Far as It Goes* On June 23, 2014, the U.S. Federal Trade Commission and Department of Justice Antitrust Division held a workshop on “conditional pricing practices”—loyalty discounts, bundled discounts and similar pricing techniques. Many (...)

The Cyprus Commission for the Protection of Competition conducts dawn raids following an investigation ex-officio concerning the terms and prices of supply of equipment and strips for monitoring blood glucose sold to pharmaceutical stores and public bodies
Commission for the Protection of Competition of the Republic of Cyprus
Press Release by the Commission for the Protection of Competition – Dawn raid carried out at the premises of Panicos Theo Hadjigeorgiou & Co Ltd* The Cyprus Commission for the Protection of Competition (CPC) decided, as per section 31 of the Protection of Competition Laws of 2008 and 2014 (...)

Mergers

The Hungarian Competition Authority establishes that the conclusion of exclusive distribution agreements could also constitute a concentration under certain circumstances (Pappas Auto, Danube Truck/Iveco)
Dentons (Budapest)
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Hungarian Competition Authority (Budapest)
I. Facts Pappas Auto Magyarország Kereskedelmi és Szervíz Kft. (“Pappas Auto”) and Danube Truck Magyarország Kft. (“Danube Truck”) acquired the vehicle distribution, spare part supply and maintenance branches of IVECO commercial vehicles and buses from IVECO S.p.A. (“IVECO”). Both Pappas Auto and (...)

The US FTC states that in order to address the competition concerns raised by the proposed acquisition of pharma laboratories, a settlement agreement to sell or relinquish rights to generics pharmaceuticals has been tentatively accepted (Actavis)
Stanford University - Stanford Law School
U.S. FTC makes Actavis’ acquisition of Forest subject to conditions* On 30 June 2014, the U.S. Federal Trade Commission (“FTC”) stated that, in order to address the competition concerns raised by Actavis’s proposed acquisition of Forest Laboratories, it has tentatively accepted the proposed (...)

The Turkish Competition Board Imposes fine for failing to notify of the establishment of a joint venture (Anayurt)
Erdem & Erdem
The Competition Board (“Board”) analyzed in its decision dated 25.06.2014 and numbered 2014-1-47 (“Decision”) that, whether (1) the establishment of a joint venture entitled Anayurt Kömür Madencilik Sanayi ve Ticaret A.Ş. (“Anayurt”) is in compliance with Art. 7 of the Act on the Protection of (...)

The Australian Competition Tribunal grants authorisation to complete acquisition under the proposed conditions on the market for electricity wholesale and retail markets in NSW (AGL / Macquarie Generation)
Australian Competition and Consumer Commission
ACCC disappointed by Tribunal decision authorising AGL to acquire Macquarie Generation* The Australian Competition Tribunal (the Tribunal) has decided to grant conditional authorisation to AGL Energy Limited’s (AGL) proposed acquisition of Macquarie Generation. The Tribunal concluded that the (...)

The Turkish Council of State annuls the decision of the Turkish Competition Authority which conditionally cleared the merger of the two largest cinema chains in Turkey in Phase II (AFM/Mars)
University of Sussex
This study analyses the judgment of the Turkish Council of State in which it has annulled the decision of the Turkish Competition Authority to conditionally clear in Phase II the merger of the two largest cinema chains in Turkey on the grounds that the merger remedies were insufficient to (...)

The MOFCOM blocks a transaction notwithstanding the fact that both U.S. and European authorities had chosen not to challenge the joint venture (MSC, CMA CGM, P3)
Davis Polk & Wardwell (New York)
For only the second time since it began reviewing mergers and joint ventures in 2008, when China’s Anti-Monopoly Law (AML) came into effect, China’s Ministry of Commerce (MOFCOM) has blocked a proposed transaction rather than addressing its competition and trade policy concerns through some form (...)

The Chinese MOFCOM prohibits the proposed shipping alliance among the world’s three largest liner shipping operators (P3 Alliance)
AnJie Law (Beijing)
No Way: Top Three Shipping Liners’ Proposed Alliance was Blocked by Chinese Watchdog* Introduction On the very last day of the statutory period for a merger review (i.e. June 17, 2014), China’s Ministry of Commerce (“MOFCOM”) rendered its decision to prohibit the proposed shipping alliance among (...)

The Swedish Competition Authority forwards an application for a prohibition order against the acquisition of the franchisors of two largest national real estate chains (Swedbank Franchise / Svensk Fastighetsförmedling)
Swedish Competition Authority (Stockholm)
The Swedish Competition Authority is going to court to stop the real estate concentration* The Competition Authority is going to court to prohibit Swedbank Franchise from acquiring Svensk Fastighetsförmedling. The deal would significantly impede competition on a large number of local markets. (...)

The Cypriot Commission for the Protection of Competition receives notification of merger in the sector for duty free shops on the airports (Aer Rianta International / CTC-ARI)
Commission for the Protection of Competition of the Republic of Cyprus
Notification of concentration regarding the acquisition of share capital of CTC-ARI (Holdings) Limited by Aer Rianta International (Middle East) W.L.L.* The Service of the Commission for the Protection of Competition received on behalf of Aer Rianta International (Middle East) W.L.L. and (...)

The New Zealand Commerce Commission issues a statement of preliminary issues relating to the clearance of an acqusition of brand and product assets on the market for supply of consumer goods including personal lubricants (Reckitt Benckiser / Johnson & Johnson)
New Zealand Commerce Commission
Press releases published on New Zealand Commerce Commission Statement of preliminary issues for Reckitt Benckiser’s application to acquire K-Y* The Commerce Commission has published a statement of preliminary issues relating to an application from Reckitt Benckiser Group Plc (Reckitt (...)

The Lithuanian Competition Council opens an investigation and finds that refusal to negotiate a swap agreement for natural gas amounted to a breach of the merger conditions (Lietuvos energijos gamyba)
Lithuanian Competition Authority (Vilnius)
Lithuanian Competition Council fines OAO Gazprom for failing to comply with merger conditions* On 10 June, the Competition Council (KT) imposed a fine of 123,096,700 litas (approx. EUR 35,651,269) on OAO Gazprom for the failure to comply with merger conditions. In 2004, the KT allowed Gazprom (...)

The Brazilian Federal Supreme Court overrules the Brazilian Competition Authority’s appeal regarding the Central Bank’s exclusive jurisdiction for merger control in financial institutions (Brazilian Central Bank)
Inglez, Werneck, Ramos, Cury e Françolin Advogados
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Inglez, Werneck, Ramos, Cury e Françolin Advogados
The Brazilian Federal Supreme Court has overruled the Brazilian Competition Authority’s appeal regarding the verdict issued by the Brazilian Superior Court of Justice regarding the Brazilian Central Bank’s exclusive jurisdiction for merger control involving banks and financial institutions in (...)

The Namibian Competition Commission conditionally approves the acquisition of a gold mine (Guinea Fowl Investments Twenty Six / Navachab)
Primerio
Namibian merger control: 1st deal of 2014 gets conditions* Namibian Competition Commission imposes conditions on mining deal The Namibian Competition Commission has given its first conditional approval of the year in a gold-mine transaction, imposing employment conditions that require the (...)

The French Competition Authority clears an acquisition of a newspaper in the press magazine sector (Le Nouvel Observateur / Le Monde Libre)
French Competition Authority
Press release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the acquisition of Le Nouvel Observateur magazine by Pierre Bergé, Xavier Niel Mr Matthieu Pigasse, who already own Le Monde group* The Autorité de la concurrence has issued (...)

The French Competition Authority conditionally clears an acquisition of sole control on the luxury perfumes and cosmetics market (Nocibé / Advent)
French Competition Authority
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence clears the acquisition of sole control of Nocibé by Advent (Douglas) subject to the divestment of 38 sales outlets by the new entity. These commitments will provide consumers with (...)

The Cyprus Commission for the Protection of Competition receives notification of a merger on the market for maritime transportation management (Marship Investments / Ahrenkiel Shipmanagement)
Commission for the Protection of Competition of the Republic of Cyprus
Notification of concentration regarding the acquisition of share capital of Ahrenkiel Shipmanagement (Cyprus) Ltd by Marship Investments Ltd* The Service of the Commission for the Protection of Competition received on behalf of Marship Investments Ltd notification of a proposed concentration (...)

The Danish Supreme Court upholds two decisions by the Danish Competition Council in relation to commitments given in a merger case (Nykredit)
Danish Competition and Consumer Authority (Copenhagen)
On 3 June 2014, the Danish Supreme Court upheld two decisions by the Danish Competition Council in which it decided (i) that a commitment without any specific mention of time limit was unlimited in time; and (i) that the Danish Competition Council enjoys a margin of appreciation in matters of (...)

The Competition and Markets of UK clears the proposed takeover of two hospitals (Heatherwood, Wexham and Frimley Park)
DLA Piper (London)
The Competition and Markets Authority (CMA) cleared the proposed takeover of Heatherwood and Wexham Hospitals NHS Foundation Trust by Frimley Park Hospital NHS Foundation Trust in May 2014. Heatherwood and Wexham are two struggling hospitals located near top- performing Frimley Park hospital. (...)

State Aid

The Czech Supreme Court confirms duty of national courts to enforce EU state aid rules (NH Hospital v. Central Bohemian Region)
Weil, Gotshal & Manges (Prague)
On 25 June 2014, the Supreme Court cancelled preceding decisions by the High Court in Prague (Ref.No. 3 Cmo 289/2011-142 of 29 December 2011) and by the Municipal Court in Prague (Ref.No. 32 Cm 128/2010-131 of 13 June 2011) and remanded the case back for further proceedings before the Municipal (...)

The EU Commission issues a new regulation declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 TFEU
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The New General Block Exemption Regulation: The Cornerstone of the State Aid Regime, 2014-2020* The new GBER at a glance Common Provisions Aid must be transparent Aid must have incentive effect Rules on cumulation Aid measures & awards must (...)

The EU General Court dismisses an action for annulment brought by a competitor against a Commission decision finding no state aid in relation to licensing of software terms offered by a university (Scheepsbouwkundig Advies- en Rekencentrum)
European Procurement Law Group
State aid and (university) software licensing: who’s interested? (T-488/11)* In its Judgment of 12 June 2014 in case Sarc v Commission, T-488/11, EU:T:2014:441, the General Court of the EU (GC) has assessed an interesting case concerned with the licensing of software developed at a Dutch (...)

The European Commission explains once again that tax rulings in case of advance pricing agreements can constitute State aids (FFT)
University of Oxford
Driving in the wrong direction? The opening decision in Fiat* What are we to make of the Commission’s decision to open an in-depth investigation into the tax treatment of Fiat Finance and Trade (FFT) by Luxembourg? In late September 2014, the Commission published its decision to open an (...)

The European Commission applies a "private tax-payer test" for State aid (Apple APA)
European Procurement Law Group
A ’private tax-payer test’ for State aid? ... or how the Commission is not getting it (about the Apple APA case)* Thanks to @Detig’s twitter encouragement, I have finally set out to read the recently released 11 June 2014 Decision of the European Commission SA.38373 in the case of alleged Irish (...)

The European Commission investigates national tax rulings on transfer pricing
White & Case (Brussels)
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White & Case (Brussels)
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White & Case (London)
The European Commission (“EC”) has long sought to eliminate so-called harmful tax competition, which it sees as undermining the integrity of the internal market, fair competition and the fiscal sustainability of the Member States. Although the EU Member States remain sovereign in this area, over (...)

Procedures

The US Supreme Court grants certiorari and will soon decide whether a case that has been dismissed from a consolidated proceeding can be appealed immediately, notwithstanding other cases still pending in the same proceeding (Gelboim/Bank of America)
Weil, Gotshal & Manges (New York)
Supreme Court to Review Appeal Issue in LIBOR Litigation* Contributing Author: Clayton Collett. Introduction The Supreme Court has granted certiorari in Gelboim v. Bank of America Corp. and will soon decide whether a case that has been dismissed from a consolidated proceeding can be appealed (...)

The Hungarian Parliament adopts amendments of the Competition Act introducing new rules on merger procedures and access to file
Hungarian Competition Authority (Budapest)
Changes to the Hungarian competition rules – proceedings become more predictable* The amendments made to Act LVII of 1996 on the Prohibition of Unfair and Restrictive Market Practices Act (the Hungarian Competition – Tpvt.) which will enter into force on the 1st of July will constitute several (...)

The President of Poland approves amendments to the Polish Competition Act introducing the possibility to impose fines on the managers of companies involved in anticompetitive agreements
Wiercinski Kwiecinski Baehr (Poznan)
Polish revolution – far reaching changes to Polish competition law. Part 1 – fines for individuals* On 10 June 2014, the Polish Parliament adopted a significant set of amendments to the Polish Competition Law Act (the “Act”). Having received Presidential approval on 30 June 2014, the amended Act (...)

The EU General Court rejects an action for annulment against the requirement of the Commission to provide a guarantee issued by a bank with a long term credit rating AA as a condition for deferred fines payment (Quimitécnica.com / José de Mello)
European Procurement Law Group
Competition infringer: You don’t want the EU Commission as your banker (T-564/10)* In its Judgment in Quimitécnica.com and de Mello v Commission, T-564/10, EU:T:2014:583, the General Court has addressed a rather strange issue concerning the interest rates applicable by the European Commission (...)

The US Supreme Court gives judgment on the matter of overruling a legal precedent that relies on a no more valid economic theory (Halliburton / Erica John Fund)
Bona Law (San Diego)
What Does the Supreme Court’s Decision in Halliburton Co. v. Erica P. John Fund, Inc. Mean for Antitrust Law?* The defendants in Halliburton Co. v. Erica P. John Fund, Inc. failed to show the US Supreme Court the “special justification” necessary to overturn settled precedent. As we explained in (...)

The Scottish Government decides to organise a referendum on Scotland’s status of independent country, thus the issue of overlapping jurisdiction to enforce competition law becomes relevant
University of East Anglia - CCP
Article published on Centre for Competition Policy blog. Competition Policy and Scottish Independence* On 18 September 2014 Scottish residents will be asked whether Scotland should be an independent country. A discussion was held at the recent Antitrust Enforcement Symposium (held by the (...)

The EU Court of Justice upholds the Commission’s first withdrawal of immunity for cartel whistleblower but finds the General Court failed to timely adjudicate (Deltafina / FLS Plast)
Jones Day (Brussels)
The European Court of Justice has upheld a €30 million fine against cartel whistleblower Deltafina, which was imposed following the withdrawal of Deltafina’s conditional immunity as a result of the breach of its duty to cooperate under the European Commission’s leniency program. This ruling (...)

The Bulgarian Commission for the Protection of Competition recommends amending legislation on procedure for awarding contracts for activities in forest territories
European Commission
Bulgaria: The Commission for the Protection of Competition recommends amending Legislation on Procedure for Awarding Contracts for Activities in Forest Territories* On 18 June 2014, the Commission for the Protection of Competition (CPC) adopted an opinion (Decision N°786/2014) regarding the (...)

The Hong Kong’s Competition Commission gives some advice to companies preparing for implementation of the Competition Ordinance
King & Wood Mallesons (Sydney)
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King & Wood Mallesons (Hong Kong)
Hong Kong Competition Ordinance: First Conduct Rule* In this article we explore the First Conduct Rule in Hong Kong’s Competition Ordinance, focusing on its significance for companies preparing for implementation of the Ordinance. Overview of the First Conduct Rule The First Conduct Rule (...)

The UK Competition and Market Authority issues a report after its investigation on the payday lending market
European Commission
United Kingdom: Payday Borrowers pay Price for Lack of Competition* A lack of price competition means that payday loan customers may be paying too much for their loans, according to provisional findings from the Competition and Markets Authority (CMA), published on 11 June 2014. In a (...)

The Polish Lower Chamber of the Parliament agrees on final amendments brought to the national competition act which inter alia will introduce a tougher enforcement regime
Hogan Lovells (Warsaw)
New enforcement tools and new two-stage merger review – Poland approves far reaching amendments to competition law* On 10 June 2014 the President signed new act introducing changes to Poland’s competition law regime. The new regime, which will be implemented by amendments to the Polish Act on (...)

The EU Court of Justice establishes that national provisions on civil liability for loss caused by a cartel shall include compensation for loss resulting from price setting above the level expected in competitive conditions by a non-party to the cartel (Kone / ÖBB-Infrastruktur)
University of East Anglia - CCP
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European Procurement Law Group
When the CJEU opens the umbrella, lawyers and economists get ready for a warm shower of damages claims (C-557/12)* In its Judgment in Kone, C-557/12, EU:C:2014:917, the Court of Justice of the European Union (CJEU) has followed the highly controversial proposal of AG Kokott (see my criticism (...)

Regulatory

The German Parliament votes in favour of the new renewable energy sources act, which exempts existing power plants from the surcharge and contains certain exemptions for new power plants
Bird & Bird (Dusseldorf)
EEG 2.0: Bundestag Passes EEG 2014 Reform Bill After Lively Debate* The Bundestag after a lively debate has just voted in favour of the EEG 2014 reform package, in the form as proposed by the Committee for Economic Affairs and Energy and by the Environment, Nature Protection, Construction and (...)

The Australian Competition and Consumer Commission issues a draft decision to accept commitments as regards port terminal services access (CBH)
Australian Competition and Consumer Commission
ACCC issues draft decision to approve CBH long term arrangements* The Australian Competition and Consumer Commission has issued a draft decision to accept Co-Operative Bulk Handling Limited’s (CBH) proposed 2014 Port Terminal Services Access Undertaking, subject to drafting amendments. The (...)

The Australian Competition and Consumer Comission decides not to object to a proposal to increase prices by a monopoly operator of air traffic control and aviation fire-fighting and rescue services (Airservices Australia)
Australian Competition and Consumer Commission
ACCC does not object to price increases by Airservices Australia* The Australian Competition and Consumer Commission has decided to not object to a proposal by Airservices Australia to increase prices for its monopoly services, from 1 July 2014. Airservices Australia provides air traffic (...)

The Danish Competition Authority intends to closely evaluate the possible advantages and disadvantages associated with tighter regulation of the market for direct debit in Denmark (Betalingsservice)
Danish Competition and Consumer Authority (Copenhagen)
Competition analysis of “Betalingsservice”, a Danish direct debit product* The Danish direct debit product, Betalingsservice, is one of the best-known payment solutions in Denmark. Betalingsservice was launched in 1974 by PBS (now Nets Holding) and 95 % of households are using the product. In (...)

The German Federal Council passes the bill amending the Renewable Energy Sources Act as a result of successful negotiations between the German Government and the European Commission concerning state aid compatibility
Bird & Bird (Dusseldorf)
EEG 2.0 passes Bundesrat* In its last session before the summer recess, the Federal Council (Bundesrat) followed the vote of the Bundestag (Parliament) of 27 June 2014 regarding the revision of the Renewable Energy Sources Act (EEG). Now Federal President (Bundespräsident) Joachim Gauck is (...)

The Netherlands Authority for Consumers & Markets issues an unbundling certificate concerning the operation of electricity cable between Maasvlakte in the Netherlands and the Isle of Grain in the UK
Netherlands Authority for Consumers & Markets (The Hague)
The Netherlands finalises important part of the Third Energy Package* Transmission system operator BritNed Development Ltd. has received an unbundling certificate from the Netherlands Authority for Consumers & Markets (ACM). BritNed has demonstrated to comply with the ‘unbundling (...)

Public sector

The Lithuanian Competition Council finds illegal award of waste management services conducted by two municipalities (Molėtai / Kaišiadorys)
Lithuanian Competition Authority (Vilnius)
Molėtai and Kaišiadorys district municipalities improperly organised waste management* Competition Council (KT) determined that Molėtai and Kaišiadorys district municipalities (Municipalities) improperly organised waste management and, thus, breached Article 4 of the Law on Competition. (...)

The EU Court of Justice issues a new decision concerned with the in-house exception to the application of the EU public procurement rules (Centro Hospitalar de Setúbal)
European Procurement Law Group
It Won’t Last Long? CJEU takes a functional, competition-based approach to in-house provision that questoins the criteria in the new EU procurement directives (C-574/12)* In its Judgment in Centro Hospitalar de Setúbal and SUCH, C-574/12, EU:C:2014:2004, the Court of Justice of the EU (CJEU) has (...)

The Swedish Competition Authority forwards an application on procurement fines for an illegal direct award on the market for the rental of machines and other equipment for construction works (Cramo / Malmö municipality)
Swedish Competition Authority (Stockholm)
Malmö’s repeated procurement errors give higher demanded fines* A claim has been made for the municipality of Malmö to pay a fine/public procurement damages of SEK 325,000 following an illegal direct award. As the municipality of Malmö has previously been fined for an illegal direct award, the (...)

The EU General Court imposes an onerous burden of proof requiring evidence on the existence of a de facto advantage derived from the existence of a conflict of interest with a view on the annulment of a tender decision for the provision of language training services for staff of the EU institutions in Brussels (Communicaid Group)
European Procurement Law Group
GC sets burden of proof of conflicts of interest in procurement too high (T-4/13)* In its Judgment in Communicaid Group v Commission, T-4/13, EU:T:2014:431, the General Court (GC) decided another appeal against EU Institution’s public procurement decisions. In this case, the procurement was for (...)

A Swedish Administrative Court rules that a state-owned undertaking must follow the public procurement laws when it acquires goods and services and orders payment of fines amounting to SEK 3 million (Akademiska Hus)
Swedish Competition Authority (Stockholm)
Judgement against Akademiska Hus concerning compliance with the procurement rules* The state-owned company Akademiska Hus must comply with the Public Procurement Act when it purchases goods and services. This is the decision of the Administrative Court in Umeå. The company has now been ordered (...)

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