March 2007

Anticompetitive practices

The Luxembourg Competition Council imposes fines for the first time during an investigation in a cartel case ("House of justice" case)
MOYSE BLESER law firm
,
Herbert Smith Freehills
I. Introduction In the course of a cartel investigation carried out by the Competition Inspectorate (Inspection de la concurrence) (the “Inspectorate”), the addressee of the decision refused to submit accurate information to the Inspectorate, which, in reaction, adopted a formal request by way (...)

The Luxembourg Competition Council imposes fines and daily penalties on flooring firms for not communicating concrete information to the Competition Inspectorate (House of justice)
Arendt & Medernach (Luxembourg)
,
NautaDutilh (Luxembourg)
Facts of the case 1. In Luxembourg, Article 6(2) of the Competition Act (loi du 17 mai 2004 relative à la concurrence) entrusts the Competition Council (Conseil de la Concurrence), an independent administrative body, with the public enforcement of Articles 3 to 5 prohibiting cartels and abuses (...)

The Danish Competition Authority condemns a cartel between seven local banks (Lokalbanksamarbejdet)
Danish Competition and Consumer Authority (Copenhagen)
On 28 March 2007, the Danish Competition Authority (“DCA”) issued a decision condemning a cartel between seven local Danish banks. Background Following a tip-off from a journalist, the DCA conducted dawn raids at seven local Danish banks in June 2006. The DCA found evidence that the banks had (...)

A Dutch Court holds that a 5 years non-compete clause is disproportional in view of its goal and constitutes a restriction by object (Heijmans beton/Nederveen)
European Commission - DG HR
,
European Court of Justice (Luxembourg)
Court of First Instance of ‘s-Hertogenbosch (Rechtbank ‘s-Hertogenbosch), 28 March 2007, Heijmans beton- en waterbouw speciale technieken B.V. e.a., v. de besloten vennootschap met beperkte aansprakelijkheid H.M. Nederveen Holding B.V. e.a., Case 133181/HA ZA 05-2282, LJN: BA2126 In this case, (...)

The Austrian Supreme Court confirms that a cooperation agreement in the savings bank sector only partly fulfils the criteria of Art. 81.3 EC and, in a separate decision, that one of the cooperation cases constitutes a concentration (Erste Bank)
Reidlinger Schatzmann Rechtsanwälte
,
Bpv Hügel (Vienna)
As reported previously, in a decision of 13 June 2006 the Austrian Cartel Court had found that the cooperation agreements concluded between the majority of players in the Austrian savings banks sector violated Article 81(1) EC, but was partly exempt under Article 81(3) EC (See Axel Reidlinger (...)

The Austrian Supreme Court holds that certain aspects of a co-operation agreement between Austrian savings banks violates Art 81 EC (Erste Bank)
DORDA
1. Background The Austrian Supreme Court (acting as the highest appellate court in competition mat-ters) upheld a first instance decision of the Austrian Cartel Court (13 June 2006, 27 Kt 83/04, 27 Kt 18, 193/04 ; See Axel Reidlinger and Heinrich Kühnert, The Austrian Cartel Court finds that (...)

The Lisbon Court of Appeal upholds case against shipping agents association for price-fixing (AGEPOR)
University of Lisbon
,
Abreu Advogados
On 28 July 2006 the Lisbon Commerce Court upheld in substance a decision by the Portuguese Competition Authority (PCA) fining AGEPOR (Portuguese shipping agents association) € 195.000 for entering into price-fixing concerted practices but reduced the fine to € 130.000. Unhappy with the ruling, (...)

The Lithuanian Competition Authority imposes fines on members of the water supply systems cartel for bid rigging (School Renovations)
Lithuanian Competition Council
Competition Council of the Republic of Lithuania (Lietuvos Respublikos konkurencijos taryba), 15 March 2007, Decision n° 2S-6, concerning the compliance of the actions of undertakings, participants of the public procurement tenders organised by the Educational Establishments’ Maintenance Office (...)

The German Federal Cartel Office issues new notices on agreements of minor importance and on the application of antitrust provisions to SMEs’ horizontal cooperation agreements
Blomstein
Introduction The Federal Cartel Office (FCO) has issued two revised information leaflets providing for guidance with regard to the application of both European and German competition law by the FCO: (1.) The new notice on agreements of minor importance (“de minimis notice”) and (2.) the new (...)

The French Competition Authority sanctions two French cement manufacturers for keeping for themselves the supply of Corsica to the detriment of foreign competitors (Lafarge Ciments / Vicat)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Supply and distribution of cement in Corsica: Conseil de la concurrence imposes fine of €25 million on cement manufacturers Lafarge and Vicat, and their distributors, for keeping for themselves the supply of (...)

The Spanish Competition Court sanctions a beer producer for imposing minimum purchasing obligations and limiting competing advertising in its distribution contracts (Cervezas Canarias 2)
Hogan Lovells (Madrid)
Competition Authority (Tribunal de defense de la competencia), 12 March 2007, Compañía Cervercera de Canarias (Cervezas Canarias 2), Case n° 614/06 Cervezas Anaga S.A (hereinafter, "Anaga"), a brewer from the Canary Islands, lodged a complaint before the Spanish Servicio de Defensa de la (...)

The UK Competition Appeal Tribunal laid down that duration of infringement is not essential in fixing penalty for concerted practices (Sepia Logistics, Precision Concepts)
Queen Mary University (London)
DQS, EWS Manufacturing Limited, Ulmke Metal Limited and Thermoseal were all active suppliers of aluminium spacer bar in the market. In March 2002, the OFT received an anonymous written complaint alleging price-fixing by manufacturers and distributors in the aluminium spacer bar market for (...)

The Japan Fair Trade Commission issues cease and desist orders and imposes surcharges on participants in bidding for floodgate projects and makes a cease and desist order (Japan Water Agency)
Japan Fair Trade Commission (Tokyo)
The JFTC issued cease and desist orders, surcharge payment orders to bidders for floodgate projects procured by the Ministry of Land, Infrastructure and Transport, the Japan Water Agency and the Ministry of Agriculture, Forestry and Fisheries, and other directions to the procurement agencies. * (...)

The French Competition Authority accepts the commitments taken by 10 companies of the cosmetic industry to introduce more competition into online sale of their products (Bioderma & Rogé Cavaillès)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Conseil de la concurrence facilitates online sale of cosmetic products: 10 companies of the cosmetic industry committed to introduce more competition into online sale of their products.* The Conseil de la (...)

The Irish Supreme Court refers a preliminary question to the ECJ on the validity of the rationalisation programme of a crisis cartel (Beef Industry Development Society - BIDS)
London School of Economics
Background to the dispute All key players in the Irish Beef Industry benefited from support in the form of intervention pricing, private storage aid and export refunds under the Common Agricultural Policy (CAP) following Ireland’s accession to the then EEC. Following the structural reform of (...)

The German federal Court of justice recalls that norm and type agreements must be open to all potential members on a non-discriminatory basis (PETCYCLE)
European Commission - DG COMP (Brussels)
Federal Court of Justice (Bundesgerichtshof), 6 March 2007, Case n° KZR 6/06, PETCYCLE Germany introduced a legal requirement for drink manufacturers to collect and recycle the bottles which they sold. The distributors are obliged to collect used bottles from the end users and return a deposit. (...)

The UK Competition Commission consults on remedies on the personal current account banking services market (PCA Northern Ireland)
Nestlé (Vevey)
On 6 March 2007 the UK Competition Commission (“CC”) published for consultation a proposed final remedies package to remedy the competition issues provisionally identified by the CC in its review of the personal current account (“PCA”) banking services market in Northern Ireland. The CC is the (...)

The Romanian Competition Council imposes fines in insulin cartel case (Eli Lilly Export, A&A Medical, Relad Pharma, Mediplus Exim)
Van Bael & Bellis (Brussels)
On 5 March 2007, the Romanian Competition Council fined four companies for operating a market-sharing arrangement affecting the supply of insulin in Romania. The total fine of € 22.6 million is the second highest ever imposed by the Romanian Competition Council, after the € 27 million fine (...)

The Romanian High Court quashes a NCA’s decision having imposed a 27 M euro fine for price fixing practices for insufficient proof on the basis, inter alia, of ECJ case law
Gide Loyrette Nouel
,
Dechert (Paris)
Romanian High Court of Cassation and Justice (Înalta Curte de Casatie si Justitie), 5 March 2007, Decision n° 1358 The Romanian High Court of Cassation and Justice has recently made an application of the principles governing the burden and the level of proof in antitrust cases, overturning (...)

The Romanian Supreme Court overturns the NCA’s decision having fined one participant to a cartel for lack of sufficient proofs (Cement Cartel)
European Security Transport Association (ESTA)
Competition Council (Consiliul Concurentei), 26 May 2005, Decision n° 94 relating to the sanctioning of Lafarge Romcim SA, Holcim Romania SA and Carpatcement Holding SA for the infringement of Article 5(1) (a) of the Competition Law n° 21/1996 Decizia n° 94, privind sanctionarea societatilor (...)

Unilateral Practices

The UK High Court of Justice rules that, although Art. 82 EC does not contain a declaration of nullity equivalent to Art. 81 EC, the effect is the same (English Welsh & Scottish Railway/E.ON)
King’s College (London)
This note considers antitrust private enforcement in the UK; it should be read together with other cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) and two follow-on damages’ claims which have been lodged before the specialist Competition Appeal Tribunal (...)

The Serbian competition authority finds abuse of dominant position in the market of RTV cable distribution services in Belgrade (Serbia broadband)
University of Belgrade
The Serbian Competition Authority (“Komisija za zastitu konkurencije”) determined in its decision adopted on 22 March 2007, that cable distributor “Serbia Broadband - Srpske Kablovske Mreze doo” (“SBB”) abused its dominant position in the market for provision of radio and TV cable distribution (...)

The Turkish Competition Authority condemns the use of a software database encryption as an abuse of dominance (Bilsa)
University of Sussex
This study focuses on the decision of the Turkish Competition Authority (“TCA”) regarding Bilsa, who was found to have abused its dominant position on the market for school management software by the use of a software database encryption which made the user schools dependent to Bilsa’s products (...)

The Italian Competition Authority accepts commitments presented by a pharmaceutical company authorising potential competitors’ access to its products, with, inter alia, a free licence to manufacturers of generic pharmaceuticals (Merck - Principi Attivi)
National University of Singapore
The Autorità Garante della Concorrenza e del Mercato (the Italian Competition Authority, hereinafter also the “Authority”) recently closed proceedings in the pharmaceutical sector by accepting the commitments presented by Merck. The investigation against the American pharmaceutical company (...)

The French Competition Council fines predatory pricing aimed at preventing entry of generic drugs in hospitals on the basis of both EC and national competition provisions (GlaxoSmithKline France)
Gide Loyrette Nouel
In the decision n° 07-D-09 dated March, 14 2007, the French Competition Council imposed a 10 million € fine on GlaxoSmithKline laboratory for practices aiming at preventing generic drugs from entering the hospital medicines market by conducting a predatory policy. That was considered by the (...)

The Spanish Audiencia Nacional revokes the Competition Authority’s decision on an abuse of dominance due to the absence of anticompetitive effects on the market regarding access to liquid natural gas importing infrastructures (Gas natural)
Compass Lexecon (Madrid)
The Antitrust Court Decision In June 2006 the Tribunal de Defensa de la Competencia, the former antitrust court in Spain, hereafter TDC, imposed an 8 million euro fine to Gas Natural, the main natural gas operator in Spain, on the basis of an abuse of dominant position regarding access to (...)

The Spanish Audiencia Nacional annuls the Competition Authority’s decision fining a natural gas supplier on the basis of Art. 82 EC for impeding third parties access to regasification capacities (Gas Natural)
Introduction On June 2006, the Tribunal de Defensa de la Competencia - TDC - (the second-tier competition authority) imposed a hefty fine of 8 million euro for an abuse of a dominant position to one of the leading companies within the gas industry in Spain, Gas Natural. Gas Natural further (...)

The appellate body of the Czech Office for Protection of Competition confirms abuse of dominant position by the energy incumbent (RWE Transgas)
Gide Loyrette Nouel
On 13 March 2007, the second instance decision of the Czech Office for Protection of Competition (the “Office”) was rendered by the Chairman of the Office (the “Chairman”) in the case of RWE Transgas a.s. (“RWE Transgas”, or the “company”), after the company appeal against the first instance decision. (...)

The Czech Office for the Protection of Competition confirms in appeal the abuse of dominant position of the natural gas incumbent althought reducing the fine imposed to EUR 8.5 M (RWE Transgas)
University Panthéon-Sorbonne (Paris)
The Office for the Protection of Competition (hereinafter the Office) confirms in its decision of 12 March 2007 its first instance decision of 10 August 2006, by which it condemned RWE Transgas, the dominant supplier of natural gas on the Czech market, for an abuse of its dominant position on (...)

The Italian Competition Authority closes proceedings against the gas incumbent for alleged breach of Art. 82 EC by accepting commitments in the sector of regasification facilities without imposing sanctions (ENI)
National University of Singapore
On 9 March 2007, the “Autorità Garante della Concorrenza e del Mercato” (hereinafter, also “AGCM”) closed proceedings against ENI, the Italian dominant undertaking in the gas sector, and its subsidiaries without fines and accepted the commitments proposed. In particular, the AGCM had previously (...)

The Turkish Competition Authority fines a film distributor for abusive leveraging in film distribution and exhibition markets (Warner Bros Turkey)
University of Sussex
This study focuses on the ruling of the Turkish Competition Authority (“TCA”) regarding a “leverage” of Warner Bros Turkey, who was found to have abused its dominant position it has on film distribution market, in order to gain anticompetitive advantages on film exhibition market by determining the (...)

The Spanish Competition Authority fines for the third time an electricity utility for excessive high prices (Iberdrola Castellón)
European Court of Justice (Luxembourg)
Spanish Competition Authority (Tribunal de Defensa de la Competencia), 8 March 2007, Iberdrola Castellón, Decision n° 601/05 The time is come for Spanish main utilities to carry out a serious competition law assessment before putting a price to the power they offer within the framework of the (...)

The Swedish Competition Authority closes investigation pursuant Art. 82 EC and its Swedish equivalent provision (Konkurrensverket/Ticnet)
Vinge (Stockholm)
,
Svea hovrätt (Swedish courts)
Background Following a complaint, the Swedish Competition Authority (the “SCA”) decided to initiate an investigation to determine whether Ticnet AB’s (“Ticnet”) exclusivity arrangements with promoters and other customers obstructed other firms from being active on the market for ticket handling. (...)

The Polish Competition Authority finds that the National Health Fund abused of its dominant position by imposing unfairly low prices for the purchase of health services (Narodowy Fundusz Zdrowia)
K&L Gates (Warsaw)
On March 7th, 2007, the Polish competition authority stated that the National Health Fund (Narodowy Fundusz Zdrowia - state institution responsible for financing health system in Poland) (“NFZ”), the state institution responsible for financing health protection services in Poland, abused its (...)

The Polish Office for Competition and Consumer Protection holds that the National Health Fund has imposed its dominant position by imposing low purchase prices of health services (Narodowy Fundusz Zdrowia)
Magdalena Tomaszewska
In his decision dated 7 March 2007, the President of the Office for Competition and Consumer Protection (“the President of the OCCP”) recognized that the National Health Fund (“the NHF”) abused its dominant position on the national market for organizing dentistry services as part of the national (...)

The Polish Competition Authority confirms that the entity in charge of the management of the general compulsory health insurance system is an entrepreneur and therefore is subject to competition law (Narodowy Fundusz Zdrowia)
French National Research Agency (ANR)
President’s of the Office for Competition and Consumer Protection (Prezes Urzedu Ochrony Konkurencji i Konsumentów) March 7th, 2007, Decision n° DOK-28/2007, concerning practices of the National Health Fund (Narodowy Fundusz Zdrowia) On March 7th, 2007 the President of the Office for Competition (...)

The Paris Court of Appeal rules that cybersquatting infringes free competition principle (Hôtels Méridiens)
Aklea
,
A Turquoise (Paris)
,
Gordon S. Blair Law Offices
A cybersquatting case having given rise to a litigation between Hôtels Méridiens and a company providing Internet domain names (thereinafter “The Online Player” or “The OP”) gave the Paris Court of Appeal a new opportunity to render a judgement concerning the necessary complementary nature of the (...)

The UK Hight Court rules on interim unjunction for an alleged unlawful refusal to supply in the pharmaceutical sector (AAH Pharmaceuticals/Pfizer-UniChem)
King’s College (London)
This note considers one of the two cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) (See also A. Jones, The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces/British Horseracing Board), (...)

The Swedish Supreme Court asks for the EC Commission’s opinion on the definition of the relevant market concerning alleged excessive prices for port services (Port of Ystad)
Cederquist
On 18 October 2006 the European Commission (the “Commission”) received a request from the Swedish Supreme Court (the “Court”) regarding the definition of the relevant market in a case concerning the application of Article 82 EC. The case before the Court concerns inter alia whether or not the Port (...)

Mergers

The US DOJ conditions the approval of a merger upon the divestiture of several fibers carrying local private telephone calls between buildings, a majority of which are owned or controlled by the merging telecommunications firms in 19 metropolitan areas (SBC / AT&T)
Jackson Walker (Dallas)
Editor’s Note: This article was written before the DOJ issued its Competitive Impact Statement on November 16, 2005 and before the FCC issued its Memorandum Opinion and Order on November 17, 2005. This article is based on the FCC’s press release of its decision to approve the mergers, the (...)

The US DOJ requires a partial divestiture of local private telephone fibers in 19 cities before clearing a merger between a popular incumbent local exchange carrier and a prominent long-distance carrier in the telecommunications industry (Verizon / MCI)
Jackson Walker (Dallas)
Editor’s Note: This article was written before the DOJ issued its Competitive Impact Statement on November 16, 2005 and before the FCC issued its Memorandum Opinion and Order on November 17, 2005. This article is based on the FCC’s press release of its decision to approve the mergers, the (...)

The Romanian Competition Council cleared a merger in the market of sweets manufacturing subject to commitment to give up trade mark exclusivity (Kandia-Excelent/Kraft Foods)
Fruth Oprisan
The operation Kandia Excelent SA purchased some assets of Kraft Foods Romania SA consisiting in 2 sweets trade marks and the related manufacturing lines for such sweets. The market(s) The relevant market consists in the market of sweets manufacturing. Remedy: Commitment to give up trade (...)

The Romanian Competition Council clears a merger on the sugar confectionery market while accepting inter alia non-exclusive distribution commitment (Kandia/Kraft Group)
Gide Loyrette Nouel
,
Dechert (Paris)
The Romanian Competition Council has recently cleared a concentration carried out on the Romanian sugar confectionery market (Decision n° 10/2007). This concentration occurred further to the purchase by Kandia - Excelent SA (“Kandia”), from companies belonging to Kraft Group, of two trademarks of (...)

The UK Office of Fair Trading clears a merger in the automobile distribution and servicing sector subject to the divestment of identified dealerships (Inchcape/European Motor Holdings)
Serle Court
The operation Inchcape plc (“Inchcape”) is an international automotive services group, primarily active in the import, distribution and retail of new and used motor vehicles and the provision of financial services. It operates 117 franchises for a range of motor vehicle marques. European Motor (...)

The French Minister of Economy grants Phase I clearance to a merger in the market for property services without remedy (Banque Federale des Banques Populaires/Foncia Groupe)
Darrois Villey Maillot Brochier
,
Scemla Loizon Veverka & de Fontmichel (SLV&F)
In his decision dated 26 March 2007, the French Minister granted a clearance to the acquisition of sole control of Foncia Groupe by Banque Fédérale des Banques Populaires (“BFBP”). BFBP, which is controlled by 19 Banque Populaire regional banks, CASDEN Banque Populaire, and Crédit Coopératif, is (...)

The Slovak Antimonopoly Office holds that an option agreement triggers merger notification (Cerberus / Alinea - BAWAG)
PRK Partners (Bratislava)
Slovak Competition Authority (Protimonopolný úrad), 21 March 2007, Decision 2007/FK/3/1/016, Alinea Holding GmbH - Pa-Zweiundfünfzigste WTP Beteiligungsverwaltungs GmbH The Department of Concentrations of the Slovak Antimonopoly Office (AMO) recently accepted for proceedings and later also (...)

The Austrian Supreme Court rejects appeal against finding of a merger in the Austrian savings bank sector regarding the creation of a “liability pool” joint venture (Haftungsverbund)
European Court of Justice (Luxembourg)
1. Introduction In a second judgment of 21 March 2007, parallel to the one given on the same day (Supreme Court (Oberster Gerichtshof), 21 March 2007, Erste Bank, Decision BWB/K-50, Case 16 OK 12/06 ; See Stefan Polster, The Austrian Supreme Court holds that certain aspects of a co-operation (...)

The European Commission clears, subject to divestiture, an acquisition of a company active in the healthcare services by a private equity funds (APW/APSA/Nordic Capital/Capio)
,
European Commission - DG COMP (Brussels)
"Merger control: Main developments between 1 January and 30 April 2007"* On 16 March the Commission approved the proposed acquisition of joint control of Capio AB, a Swedish provider of healthcare services, by the private equity funds Apax Partners Worldwide LLP (“APW”) of the UK, Apax Partners (...)

The Portuguese Competition Authority clears in phase II a merger in the banking sector with remedies including expansion of its activities (BCP/BPI)
PLMJ (Lisboa)
The operation By decision dated 16 March 2007, the PCA authorized in phase II the acquisition of sole control of Banco BPI SA (« BPI ») by the Banco Comercial Português SA (« BCP ») (para. 1). The markets The relevant markets have been defined by the PCA as the market of credit to small business; (...)

The Portuguese Competition Authority conditionally clears in phase II a merger in the banking and card payment systems markets (BCP/BPI)
Uria Menéndez (Lisbon)
On 16 March 2007, the Portuguese Competition Authority (the “AdC”) adopted a merger control decision according to the terms of Law 18/2003, of 11 June (the Competition Act), providing clearance to the envisaged acquisition of sole control of the Portuguese bank Banco BPI (“BPI”) by one of its (...)

The US FTC requires an investing firm to relinquish voting rights for members of the board of directors and install an internal firewall before allowing the firm to acquire simultaneous interests in competing firms in gasoline terminaling services (Carlyle / Kinder Morgan)
U.S. Department of Justice (Washington)
,
Willkie Farr & Gallagher (Washington)
On January 25, 2007, the Federal Trade Commission (the “FTC”) announced a complaint challenging the acquisition of a 22.6 percent equity interest in Kinder Morgan, Inc. (“KMI”) by The Carlyle Group (“Carlyle”) and Riverstone Holdings (“Riverstone”). Simultaneously, the FTC made public an order (...)

The US FTC imposes conduct remedies before allowing an investment firm to hold simultaneous interests in two competing firms in the market for terminaling services for gasoline (Carlyle / Kinder Morgan)
Hunton & Williams (Washington)
In a recent consent order, the Federal Trade Commission ("FTC") required remedies to address competitive concerns raised by the privatization of Kinder Morgan, Inc. ("KMI") by KMI management and a group of private investment firms. The investigation of this transaction was somewhat unusual (...)

The US FTC challenges, for the first time, private-equity firms acquiring a minority interest in one firm while holding a partial ownership interest in a rival firm and requires certain conduct remedies to protect competition in the market for gasoline terminaling services (Carlyle / Kinder Morgan)
Weil, Gotshal & Manges (Washington)
,
Weil, Gotshal & Manges (Washington)
United States of America, Mergers, Competition Authority, Consent Order, Access to information, Anticompetitive effect, Barriers to entry, Coordinated effects, Geographic market, Prices increase, Unilateral effects, Vertical restrictions, Other services, National provision prohibiting (...)

The US FTC requires an investing firm to relinquish voting rights for members of the board of directors and install an internal firewall before allowing the firm to acquire simultaneous interests in competing firms in gasoline terminaling services (Carlyle / Kinder Morgan)
Weil, Gotshal & Manges (Washington)
,
Weil, Gotshal & Manges (Washington)
The explosion of private-equity financing in global capital markets resulted in a record year for 2006. In that year alone, private- equity firms raised more than $400 billion, established over 600 new funds, and spent roughly $737 billion globally on buyouts. In addition, the wide- spread (...)

The German National Competition Authority applies new de-minimis exemptions to limit merger notifications of real estate and loan portfolio asset deals
Freshfields Bruckhaus Deringer (Berlin)
Introduction Section 37(1) of the Act against Restraints of Competition (ARC) defines four events that constitute a concentration within the meaning of the German merger control regime, and thus trigger the obligation to notify the Federal Cartel Office (FCO) of a transaction, provided that (...)

The Austrian Cartel Court clears in phase II the acquisition of alternative telecoms operator by incumbent while accepting infrastructure and wholesale remedies (eTel/Telekom Austria)
Reidlinger Schatzmann Rechtsanwälte
,
Bpv Hügel (Vienna)
On 12 April 2007, the Austrian Cartel Court cleared the acquisition of alternative telecoms operator eTel by Austrian incumbent Telekom Austria (TA), subject to remedies entered into by TA. TA is the Austrian telecoms incumbent and is the strongest player on the various Austrian markets for (...)

The German Bundeskartellamt cleared a merger in the retail market for perfumes and cosmetics subject to remedies including the divestiture of one of the target’s shops (Douglas/Hela)
Baker McKenzie (Dusseldorf)
The operation On 16 November 2006 Douglas Holding AG (“Douglas”) notified the Bundeskartellamt of its proposed acquisition of HELA Kosmetik Handels GmbH & Co. Parfümerie KG (“Hela”) by one of its subsidiaries. Douglas is the controlling company of the Douglas group. Douglas is active in the (...)

The Spanish Tribunal for the Defence of Competition unconditionally clears in phase II a merger in the beer sector (Mahou-San Miguel / Cervezas Alhambra)
Associated British Foods (London)
Introduction In November 2006, Mahou-San Miguel (GMSM), the leading Spanish brewing company, notified the Spanish first-tier competition authority (Servicio de Defensa de la Competencia, SDC) the acquisition of control over Alhambra, a competing brewery operating mainly in the Andalusia (...)

State Aid

The Italian Supreme Court rules that provisions on tax breaks are of strict interpretation and not subject to be extended to cases different than the one ruled, the extension otherwise constituting State aid within the meaning of Art. 87 EC (TRA.IN)
EUJUS Law Firm (Rome)
Factual background Legislative Decree No. 446/1997 introduced a Regional tax on production activities. The provisions regarding the estimate assessment of the Regional taxation regime have been subject to multiple amendments which have created doubts over whether specific requirements would be (...)

A Swedish Court embraces its role as EC state aid law enforcer (Skyways Express / Kristianstad Airport)
General Court of the European Union (Luxembourg)
,
Kreab
Introduction This case is interesting as it is one of the few state aid cases that has been brought before a Swedish court. Although, there will be no final judgment on the case it represents a positive development in the application of EC law at national level, in particular, since the (...)

The Finnish Ministry of Employment and the Economy requests recovery of unlawful aid incompatible with the Common Market (Componenta Oyj)
Dittmar & Indrenius
The Court of First Instance annulled on 18 December 2008 the Commission’s decision finding an implementation of an unlawful State aid in the matter. The case is currently pending before the Administrative Court of Helsinki. Factual Background In December 2003, Componenta Oyj, a producer of (...)

The French Civil Supreme Court applies the ECJ Boiron State aid case law on burden of proof and annuls the judgment of the Versailles Court of Appeal dismissing the application by a pharmaceutical producer (Glaxosmithkline)
Sheppard Mullin (Brussels)
,
European Court of Justice (Luxembourg)
Factual Background This case is one in a series of cases against pharmaceutical producers and wholesale distributors concerning a provision of the French Code de la santé publique (Public Health Code). The relevant provision obliges pharmaceutical wholesalers to stock enough medical products to (...)

A Dutch Court considers that granting radio frequencies to a public radio broadcasting company for no consideration is not a form of unlawful State aid (Vereniging)
Hogan Lovells (Amsterdam)
Factual Background In January 2003 the Minister of Economic Affairs granted four local public service broadcasting organisations (together named: "G4 Radio/FunX") a license to broadcast on the radio frequency bands 96.1 and 98.4 Mhz. Normally, broadcasting organisations obtain these licenses (...)

Procedures

The Luxembourg Court of Appeal declines jurisdiction in national competition matters (Tango and Tele 2/EPT)
Arendt & Medernach (Luxembourg)
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NautaDutilh (Luxembourg)
Facts of the case In October 2006 the Luxembourg public undertaking Entreprise des Postes et Télécommunications (hereinafter “EPT”) launched a cessation action on the basis of the Luxembourg 2002 Trade Practices Act (“loi du 30 juillet 2002 réglementant certaines pratiques commerciales”) before the (...)

The Luxembourg Competition Council imposed a fine and a daily penalty payment for non-compliance with requests of information in the course of investigations ("House of justice" case)
MOYSE BLESER law firm
In the course of a cartel investigation carried out by the Competition Inspectorate (Inspection de la concurrence)(the "Inspectorate"), the addressee of the decision refused to submit accurate information to the Inspectorate, which, in reaction, adopted a formal request by way of decision (...)

The Austrian Supreme Court deals for the first time with new provision on periodic penalty payments (§ 35 Cartel Act 2005)
Salzburg University
On 30 March, 2007, the Austrian Supreme Court rejected an appeal against an order imposing a periodic penalty payment on the grounds that the order does not imperil the appellant’s legal position. Background Under § 11a of the Austrian Competition Act (“Wettbewerbsgesetz”), the Austrian Federal (...)

The Spanish Competition Authority enhances the procedural rights of the defendants in national antitrust procedures (Banco Santander/Cheques comida)
European Court of Justice (Luxembourg)
,
Garrigues
Competition Authority (Tribunal de Defensa de la Competencia), 15 March 2007, Banco Santander/Cheques comida, Case r 700/2006 v On March 15th, 2007 the Tribunal de Defensa de la Competencia (TDC, highest branch of the Spanish antitrust authority) has concluded that defendants in national (...)

The UK Competition Appeal Tribunal holds both mother and sister companies to be jointly liable for the offence and penalty for price fixing and market sharing (Sepia Logistics ; Precision Concepts)
London Borough of Barking and Dagenham
Competition Appeal Tribunal, 9 March 2007, Sepia Logistics Ltd and Precision Concepts Ltd v. Office of Fair Trading, Case n° 1072/1/1/06 ; [2007] CAT 13 Suppliers of aluminium double glazing spacer bars had infringed the prohibition contained in s. 2 (1) of the Competition Act 1998, namely (...)

The German Federal Supreme Court raises the bar for the efficiency of the NCA’s investigations by ruling that a search warrant needs to refer to each particular offender in order to interrupt the running of the limitation period (Prokurist)
White & Case (Hambourg)
In its decision of March 6, 2007, the Federal Supreme Court (the Court) decided on an appeal against a decision on a price-fixing cartel which operated in the printing paper wholesale industry from 1996 to 2000. The Federal Cartel Office (FCO) had imposed an administrative fine on a (...)

The President of the Luxembourg Administrative Tribunal rejects an application for interim relief in a cartel case in the construction sector
MOYSE BLESER law firm
I . Background In 2005, the Luxembourg Competition Inspectorate (Inspection de la concurrence) (“ Inspectorate “) launched an investigation against several companies suspected having participated to a cartel in the construction sector (bid-rigging) and carried out dawnraids in several companies. (...)

The UK Competition Appeal Tribunal is to rule on two follow-on damages’ claims (Emerson Electric / Morgan Crucible)
King’s College (London)
Introduction This note considers antitrust private enforcement in the UK ; it should be read together with two other recent cases (A. Jones, The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces/British Horseracing (...)

Regulatory

The Luxembourg Administrative Court avoids ruling on alleged anticompetitive price regulation in the taxi sector (Grand-ducal regulation of 9 July 2004)
Arendt & Medernach (Luxembourg)
,
NautaDutilh (Luxembourg)
Article 2-1 of the 2004 Luxembourg Competition Act (“loi du 17 mai 2004 relative à la concurrence”) introduced the principle that competition between undertakings determines prices. This provision accordingly abolished the general and significant price controlling powers of the Luxembourg State (...)

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